Ma. Jessa M.
Alvarez 2003-29275
NATIONAL LAND TITLES AND DEEDS REGISTRATION ADMINISTRATION v. CSC | Campos Jr., 1993
FACTS
1977, Violeta Garcia, a Bachelor of Laws graduate and a first grade civil service eligible was
appointed Deputy Register of Deeds VII under permanent status.
Said position was later reclassified to Deputy Register of Deeds III pursuant to PD 1529,
petitioner was also appointed under permanent status up to September 1984
Executive Order No. 649 authorized the restructuring of the Land Registration Commission to
National Land Titles and Deeds Registration Administration and regionalized the Offices of the
Registers therein. Garcia was issued an appointment as Deputy Register of Deeds II under
temporary status, for not being a member of the Philippine Barher temporary appointment as
such was renewed in 1985
October 30, 1986, the then Minister, now Secretary, of Justice notified petitioner Garcia of
the termination of her services as Deputy Register of Deeds II on the ground that she was
"receiving bribe money". The Memorandum of Termination took effect on February 9, 1987,
-The Merit Systems Protection Board (MSPB) dropped the appeal of petitioner Garcia on the
ground that since the termination of her services was due to the expiration of her temporary
appointment, her separation is in order
June 30, 1988, the Civil Service Commission directed that private respondent Garcia be
restored to her position as Deputy Register of Deeds II or its equivalent in the NALTDRA. It
held that "under the vested right theory the new requirement of BAR membership to qualify
for permanent appointment as Deputy Register of Deeds II or higher as mandated under E.O.
649, would not apply to her but only to the filling up of vacant lawyer positions on or after
February 9, 1981, the date said Executive Order took effect. Since private respondent Garcia
had been holding the position of Deputy Register of Deeds II from 1977 to September 1984,
she should not be affected by the operation on February 1, 1981 of Executive Order No. 649.
NALTDRA filed the present petition to assail the validity of the Resolution of the Civil Service
Commission. It contends that Sections 8 and 10 of Executive Order No. 649 abolished all
existing positions in the LRC and transferred their functions to the appropriate new offices
created by said Executive Order, which newly created offices required the issuance of new
appointments to qualified office holders. Verily, Executive Order No. 649 applies to Garcia,
and not being a member of the Bar, she cannot be reinstated to her former position as
Deputy Register of Deeds II
ISSUES
(1) WON E.O. 649 abolished all existing positions in the LRC.
(2) WON there was a valid reorganization.
(3) WON Garcia may avail of security of tenure.
(4) WON the qualification requirement of membership in the bar for the position of Deputy
Register of Deeds applies to Garcia.
HELD/RATIO
(1) YES. The question of whether or not a law abolishes an office is one of legislative intent about
which there can be no controversy whatsoever if there is an explicit declaration in the law
itself. Executive Order No. 649, in express terms, provided for the abolition of existing
positions. Thus, from the moment an implementing order is issued, all positions in the Land
Registration Commission are deemed non-existent.
However, abolition of a position does not involve or mean removal because removal implies
that the post subsists and that one is merely separated therefrom. After abolition, there is in
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 1
law no occupant. Thus, there can be no tenure to speak of. It is in this sense that from the
standpoint of strict law, the question of any impairment of security of tenure does not arise.
(2) YES.The authority to carry out a valid reorganization is under Section 9, Article XVII of the
1973 Constitution, the applicable law at that time:
Sec. 9. All officials and employees in the existing Government of the Republic of the Philippines
shall continue in office until otherwise provided by law or decreed by the incumbent President...
However, the power to reorganize is not absolute. Reorganizations have been regarded as
valid provided they are pursued in good faith. E.O. 649 was enacted to improve the services
and better systematize the operation of the Land Registration Commission. A reorganization
is carried out in good faith if it is for the purpose of economy or to make bureaucracy more
efficient. To this end, the requirement of Bar membership to qualify for key positions in the
NALTDRA was imposed to meet the changing circumstances and new development of the
times. Garcia who formerly held the position of Deputy Register of Deeds II did not have
such qualification. It is thus clear that she cannot hold any key position in the NALTDRA, The
additional qualification was not intended to remove her from office. Rather, it was a criterion
imposed concomitant with a valid reorganization measure.
(3) NO.On the "vested right theory" advanced by respondent Civil Service Commission, There is
no such thing as a vested interest or an estate in an office, or even an absolute right to hold it.
Except 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 or its salary. None of the exceptions to
this rule are obtaining in this case.
(4) YES.The position, which private respondent Garcia would like to occupy anew, was abolished
pursuant to Executive Order No. 649, a valid reorganization measure. There is no vested
property right to be re employed in a reorganized office. Not being a member of the Bar, the
minimum requirement to qualify under the reorganization law for permanent appointment as
Deputy Register of Deeds II, she cannot be reinstated to her former position without violating
the express mandate of the law.
SECRETARY OF DOTC V. MABALOT | Buena, 2002
FACTS
19 February 1996: then DOTC Secretary Jesus B. Garcia, Jr., issued Memorandum Order No.
96-735 addressed to Land Transportation Franchising Regulatory Board (LTFRB) Chairman
Dante Lantin directing him to effect the transfer of regional functions of that office to the
DOTCCAR Regional Office, pending the creation of a regular Regional Franchising and
Regulatory Office thereat, pursuant to Section 7 of Executive Order No. 202.
13 March 1996: herein respondent Roberto Mabalot filed a petition for certiorari and
prohibition praying that the Memorandum Order No. 96-735 be declared illegal and without
effect.
29 January 1997: Secretary Lagdameo issued the assailed Department Order No. 97-1025,
establishing DOTC-CAR Regional Office, created by virtue of Executive Order No. 220 dated
July 15, 1987, as the Regional Office of the LTFRB.
Mabalot filed a Supplemental Petition assailing the validity of Department Order No. 97-1025
31 March 1999: the lower court rendered a decision declaring Memorandum Order Nos. 96-
733 and 97-1025 of the respondent DOTC Secretary null and void and without any legal effect
as being violative of the provision of the Constitution against encroachment on the powers of
the legislative department and also of the provision enjoining appointive officials from
holding any other office or employment in the Government.
PROF. GISELLA N. DIZON-REYES
 2 Ma. Jessa M. Alvarez
Instant petition where this Court is tasked in the main to resolve the issue of validity of the
subject administrative issuances by the DOTC Secretary.
ISSUES
(1) WON the administrative issuances of the DOTC Secretary are valid.
(2) WON the DOTC Sec encroached on the powers of the legislature.
(3) WON the administrative issuances are violative of Sections 7 and 8, Article IX-B of the
Constitution.
HELD/RATIO
(1) YES. Memorandum Order No. 96-735 and Department Order No. 97-1025 are legal and valid
administrative issuances by the DOTC Secretary.
Section 17, Article VII of the Constitution mandates that The President shall have control of
all executive departments, bureaus and offices. He shall ensure that the laws be faithfully
executed...
Section 62 of Republic Act 7645 (General Appropriations Act [G.A.A.] for FY 1993) shows that
the President is authorized to effect organizational changes including the creation of offices in
the department or agency concerned.
The Administrative Code of 1987 also provides legal basis for the Chief Executives authority
to reorganize the National Government.
(2) NO, the office was created by authority of law, not by Congress. The President - through his
duly constituted political agent and alter ego, the DOTC Secretary in the present case - may
legally and validly decree the reorganization of the Department, particularly the
establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative
Region, with the concomitant transfer and performance of public functions and
responsibilities appurtenant to a regional office of the LTFRB.
By the Chief Executives unequivocal act of issuing Administrative Order No. 36 ordering his
alter ego - the DOTC Secretary in the present case - to effectuate the creation of Regional
Offices in the CAR, it is as if the President himself carried out the creation and establishment
of LTFRB-CAR Regional Office, when in fact, the DOTC Secretary, as alter ego of the President,
directly and merely sought to implement the Chief Executives Administrative Order.
The personality of the heads of the various departments is in reality but the projection of that
of the President. Thus, their acts, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive, presumptively the
acts of the Chief Executive.
Elementary rule in administrative law and the law on public officers that a public office may
be created through any of the following modes: (1) by the Constitution (fundamental law), (2)
by law (statute duly enacted by Congress), or (3) by authority of law, thus, Congress can
delegate the power to create positions.
The creation and establishment of LTFRB-CAR Regional Office was made pursuant to the third
mode - by authority of law, which could be decreed for instance, through an Executive Order
(E.O.) issued by the President or an order of an administrative agency such as the Civil Service
Commission pursuant to Section 17, Book V of E.O. 292, otherwise known as The
Administrative Code of 1987. In this case, the DOTC Secretary issued the assailed
Memorandum and Department Orders pursuant to Administrative Order No. 36 of the
President
Reorganization is regarded as valid provided it is pursued in good faith. As a general rule, a
reorganization is carried out in good faith if it is for the purpose of economy or to make
bureaucracy more efficient. The reorganization in this case was decreed in the interest of the
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2003-29275 October 6, 2011
service and for purposes of economy and more effective coordination of the DOTC functions
in the Cordillera Administrative Region, thus in good faith.
(3) NO. The assailed Orders of the DOTC Secretary do not violate Sections 7 and 8, Article IX-B of
the Constitution. Considering that in the case of Memorandum Order No. 96-735, the organic
personnel of the DOTC-CAR were, in effect, merely designated to perform the additional
duties and functions while performing the functions of their permanent office. Also, an office
or employment held in the exercise of the primary functions of ones principal office is an
exception to, or not within the contemplation, of the prohibition embodied in Section 7,
Article IX-B.
No evidence was adduced and presented to clearly establish that the appointive officials and
employees of DOTC-CAR shall receive any additional, double or indirect compensation, in
violation of Section 8, Article IX-B of the Constitution
PRECLARO V. SANDIGANBAYAN | Kapunan, 1995
FACTS
1 October 1989: the Chemical Mineral Division of ITDI, a component of DOST employed
Preclaro under a written contract of services as Project Manager to supervise the construction
of the ITDI-CMD (JICA) Building at the DOST Compound in Bicutan, Taguig, Metro Manila. The
contract was to remain in effect from October 1, 1989 up to the end of the construction
period unless sooner terminated. He was to be paid a monthly salary drawn from counter-
part funds duly financed by foreign-assisted projects and government funds duly released by
the DBM.
November 1989: to build the aforementioned CMD Structure, DOST contracted the services
of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as the company's
project engineer.
Preclaro intimated to Resoso that he can forget about the deductive provided he gets
P200,000.00, a chunk of the contractor's profit which he roughly estimated to be around
P460,000.00
Resoso told his boss and an entrapment was planned with the help of the NBI.
14 June 1990: petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b)
of R.A. No. 3019 as amended (Anti-Graft and Corrupt Practices Act)
Petitioner instituted the present petition for review, contending that the SB erred in taking
cognizance of the case as he is not a public officer
ISSUE
WON Preclaro is a public officer.
HELD/RATIO:
YES. Preclaro asserts that he is not a public officer as defined by Sec. 2(b) of the Anti-Graft &
Corrupt Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to
a public office. Rather, he maintains that he is merely a private individual hired by the ITDI on
contractual basis for a particular project and for a specified period and that he was not issued any
appointment paper separate from the abovementioned contract. He was also not required to use
the Bundy clock to record his hours of work and neither did he take an oath of office.
The definition of "public officer" in R.A. No. 3019 according to Sec. 2(b) thereof "includes
elective and appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exemption service receiving compensation, even nominal, from
the government . . ."
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
- The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition
is not restrictive. The terms "classified, unclassified or exemption service" were the old
categories of positions in the civil service which have been reclassified into Career Service and
Non-Career Service 11 by PD 807 providing for the organization of the Civil Service
Commission and by the Administrative Code of 1987.
Non-career service in particular is characterized by: (1) entrance on bases other than those of
the usual test 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.
The Non-Career Service include: (1)...(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...
It is quite evident that petitioner falls under the non-career service category (formerly termed
the unclassified or exemption service) of the Civil Service and thus is a public officer as
defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a Bundy clock
or did not take an oath of office became unessential considerations in view of the provision of
law clearly including petitioner within the definition of a public officer.
MANIEGO V. PEOPLE | Bengzon, 1951
FACTS
February 27, 1947: Maniego, although appointed as a laborer, had been placed in charge of
issuing summons and subpoenas for traffic violations in the Sala of Judge Crisanto Aragon of
the Municipal Court of the City of Manila. He had been permitted to write motions for
dismissal of prescribed traffic cases against offenders without counsel, and to submit them to
the Court for action, without passing through the regular clerk.
Felix Raba, the complainant, appeared and inquired from the accused about a subpoena that
he received. He was informed that it was in connection with a traffic violation for which said
Rabia had been detained and given traffic summons by an American MP.
Maniego after a short conversation went to Fiscal De la Merced and informed the Fiscal that
the case had already prescribed. The Fiscal having found such to be the case, instructed the
accused that if the traffic violator had no lawyer, he could write the motion for dismissal and
have it signed by the party concerned. This was done by the accused and after the signing by
Felix Raba the matter was submitted to the Court, which granted the petition for dismissal.
Maniego informed Rabia that he could fix the case if Rabia would pay him P10; which Rabia
did and the accused pocketed.
Maniego was convicted, by the Fifth Division of the Court of Appeals, of a violation of article
210 of the Revised Penal Code. He pleads for acquittal contending that the Court of Appeals
erred in regarding him as a public officer
ISSUE
WON Maniego was a public officer.
HELD/RATIO
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2003-29275 October 6, 2011 3
YES. The four essential elements of the offense are: (1) that the accused is a public officer within
the scope of article 203 of the Revised Penal Code; (2) that the accused received by himself or thru
another, some gift or present, offer or promise; (3) that such gift, present or promise has been
given in consideration of his commission of some crime or any act not constituting a crime; (4) that
the crime or act relates to the exercise of the functions of the public officer.
Petitioner was a public officer within the meaning of RPC article 203, which includes all
persons "who, by direct provision of law, popular election or appointment by competent
authority, shall take part in the performance of public functions in the Philippine Government,
or shall perform in said government or any of its branches, public duties as an employee,
agent or subordinate official or any rank or class." This definition is comprehensive,
embracing every public servant from the highest to the lowest. For the purposes of the Penal
Code, it obliterates the standard distinction in the law of public officers between "officer" and
"employee".
For the purposes of punishing bribery, the temporary performance of public functions is
sufficient to constitute a person a public official. Although originally appointed as a mere
laborer, this defendant was on several occasions designated or given the work to prepare
motions for dismissal. He was consequently temporarily discharging such public functions.
And as in the performance thereof he accepted, even solicited, a monetary reward, he is
certainly guilty as charged.
Moreover, the receipt of bribe money is just as pernicious when committed by temporary
employees as when committed by permanent officials.
LAUREL V. DESIERTO | Kapunan, 2002
FACTS
June 13, 1991: President Corazon C. Aquino issued Administrative Order No. 223 constituting
a Committee for the preparation of the National Centennial Celebration in 1998.
President Fidel V. Ramos issued Executive Order No. 128, reconstituting the Committee for
the preparation of the National Centennial Celebrations in 1998. It renamed the Committee
as the National Centennial Commission. Appointed to chair the reconstituted Commission
was Vice-President Salvador H. Laurel.
Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation
(Expocorp) was created. Petitioner was among the nine (9) Expocorp incorporators, who were
also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer
August 5, 1998: Senator Ana Dominique Coseteng delivered a privilege speech in the Senate
denouncing alleged anomalies in the construction and operation of the Centennial Exposition
Project at the Clark Special Economic Zone. Investigation was referred to the Committee on
Accountability of Public Officers and Investigation (The Blue Ribbon Committee).
February 24, 1999: President Joseph Estrada issued Administrative Order No. 35, creating an
ad hoc and independent citizens committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including its component activities. Former
Senator Rene A.V. Saguisag was appointed to chair the Committee
Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final
Report No. 30 dated February 26, 1999. Among the Committees recommendations was the
prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP
for violating the rules on public bidding, relative to the award of centennial contracts to AK
(Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the
NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a
valid contract that has caused material injury to government and for participating in the
PROF. GISELLA N. DIZON-REYES
 4 Ma. Jessa M. Alvarez 2003-29275
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation of the anti-graft law.
Saguisag Committee issued its own report. It recommended the further investigation by the
Ombudsman, and indictment, in proper cases of, among others, NCC Chair Salvador H. Laurel
for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. (2)
6713, and Article 217 of the Revised Penal Code.
Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to
the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27,
2000, the Bureau issued its Evaluation Report, recommending that a formal complaint be filed
and preliminary investigation be conducted before the Evaluation and Preliminary
Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP
chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK President
Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation
to PD 1594 and COA Rules and Regulations
April 24, 2000: petitioner filed with the Office of the Ombudsman a Motion to Dismiss
questioning the jurisdiction of said office. Ombudsman denied petitioners motion to dismiss,
thus the present petition for certiorari.
November 14, 2000: the Evaluation and Preliminary Investigation Bureau issued a resolution
finding probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEA
before the Sandiganbayan. Ombudsman Aniano A. Desierto approved the resolution with
respect to Laurel but dismissed the charge against Pea.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public
officer because: EXPOCORP was a private corporation, not s GOCC, NCC was not a public
office, and petitioner, both as Chairman of the NCC and EXPOCORP was not a public officer as
defined under the ANTI-GRAFT & CORRUPT PRACTICES ACT.
ISSUES
(1) WON the Ombudsman had jurisdiction.
(2) WON NCC performs sovereign functions, making it a public office and its Chairman a public
officer.
RATIO:
(1) YES. The Ombudsman has the power to investigate any malfeasance, misfeasance and non-
feasance by a public officer or employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations.
The definition of public officers cited in jurisprudence is that provided by Mechem, a
recognized authority on the subject: A public office is the right, authority and duty, created
and conferred by law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public. The
individual so invested is a public officer.
The characteristics of a public office, according to Mechem, include the delegation of
sovereign functions, its creation by law and not by contract, an oath, salary, and continuance
of the position, scope of duties, and the designation of the position as an office.
Mechem describes the delegation to the individual of some of the sovereign functions of
government as *t] he most important characteristic in determining whether a position is a
public office or not.
The most important characteristic which distinguishes an office from an employment or
contract is that the creation and conferring of an office involves a delegation to the individual
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
of some of the sovereign functions of government, to be exercised by him for the benefit of
the public; that some portion of the sovereignty of the country, either legislative, executive
or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the
powers conferred are of this nature, the individual is not a public officer
YES. The NCC performs executive functions. The executive power is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance. The executive function, therefore, concerns
the implementation of the policies as set forth by law (Constitution Article XIV Sec. 15. Arts
and letters shall enjoy the patronage of the State. The State shall conserve, promote, and
popularize the nations historical and cultural heritage and resources, as well as artistic
creations; preamble, A.O. No. 223 states the purposes for the creation of the Committee for
the National Centennial Celebrations in 1998: ...vehicle for fostering nationhood and a strong
sense of Filipino identity...showcase Filipino heritage and thereby strengthen Filipino
values,...).
It bears noting the President, upon whom the executive power is vested, created the NCC by
executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2:
Executive Orders. Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders...
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner,
as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of little
consequence. A salary is a usual but not a necessary criterion for determining the nature of
the position. It is not conclusive. The salary is a mere incident and forms no part of the
office.
Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as
opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or
fees are attached.
The term office embraces the idea of tenure and duration but the element of continuance can
not be considered as indispensable, for, if the other elements are present there is no
difference whether there be but one act or a series of acts to be done, -- whether the office
expires as soon as the one act is done, or is to be held for years or during good behaviour.
It is also contended that since petitioner supposedly did not receive any compensation for his
services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No.
3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of
the Ombudsman.
Public officer, under R.A. No. 3019, is defined by Section 2:
SEC. 2. Definition of terms. As used in this Act, the term x xx(b) Public officer includes
elective and appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exemption service receiving compensation, even nominal, from
the government as defined in the preceding paragraph.
It is clear from above, that the definition of a public officer is expressly limited to the
application of R.A. No. 3019. Said definition does not apply for purposes of determining the
Ombudsmans jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989.
The Anti-Graft and Corrupt Practices Act is just one of several laws that define public
officers. Article 203 of the Revised Penal Code, for example, provides that a public officer is x
xx any person who, by direct provision of law, popular election or appointment by competent
authority, takes part in the performance of public functions in the Government of Philippines,
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
or performs in said Government or in any of its branches public duties as an employee, agent
or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987on the other
hand, states: Officer as distinguished from clerk or employee, refers to a person whose
duties not being of a clerical or manual nature, involves the exercise of discretion in the
performance of the functions of the government. When used with reference to a person
having authority to do a particular act or perform a particular person in the exercise of
governmental power, officer includes any government employee, agent or body having
authority to do the act or exercise that function.
Under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for
Public Officials and Employees), one may be considered a public official whether or not one
receives compensation: Public Officials include elective and appointive officials and
employees, permanent or temporary, whether in the career or non-career service including
military and police personnel, whether or not they receive compensation, regardless of
amount.
FERNANDEZ V. STO. TOMAS | Feliciano, 1995
FACTS
Petitioners Salvador C. Fernandez and Anicia M. de Lima assail the validity of Resolution No.
94-3710 of the Civil Service Commission ("Commission") and the authority of the Commission
to issue the same.
Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA")
while petitioner de Lima was serving as Director of the Office of the Personnel Relations
("OPR"), both at the Central Office of the Civil Service Commission in Quezon City,
Metropolitan Manila
Resolution No. 94-3710, signed by public respondents Patricia A. Sto. Tomas and Ramon
Ereneta, Jr., Chairman and Commissioner, respectively, of the Commission, was issued on 7
June 1994, stating: ". . . as an independent constitutional body, the Commission may effect
changes in the organization as the need arises...
Chairman Sto. Tomas, when apprised of objections of petitioners, expressed the
determination of the Commission to implement Resolution No. 94-3710 unless restrained by
higher authority
Petitioners then instituted this Petition
ISSUE
(1) WON the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the
extent it merged the OCSS [Office of Career Systems and Standards], the OPIA [Office of
Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO
[Research and Development Office].
(2) WON Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure.
RATIO:
(1) YES. The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987)
sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and organization of the
Commission. Sec. 16 enumerates the Offices in the Commission. Sec. 17 describes the
Organizational Structure--...As an independent constitutional body, the Commission may
effect changes in the organization as the need arises.
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2003-29275 October 6, 2011 5
The OCSS, OPIA and OPR, and as well each of the other Offices listed in Section 16 consist of
aggrupation of Divisions, each of which Divisions is in turn a grouping of Sections. Each
Section, Division and Office comprises a group of positions within the agency called the Civil
Service Commission. Thus, each Office is an internal department or organizational unit within
the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the other Offices
within the Commission constitute administrative subdivisions of the CSC.
What Resolution No. 94-3710 did was to re-arrange some of the administrative units within
the Commission and, among other things, merge three (3) of them (OCSS, OPIA and OPR) to
form a new grouping called the "Research and Development Office (RDO)." It also re-allocated
certain functions moving some functions from one Office to another
The objectives sought by the Resolution: effect[ing] changes in the organization to
streamline [the Commission's] operations and improve delivery of service."
The changes introduced and formalized through Resolution No. 94-3710 are precisely the kind
of internal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3)
of the 1987 Revised Administrative Code) as "changes in the organization" of the Commission.
Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices,
something that may be done only by the same legislative authority, which had created those
public offices in the first place. However, the term "public office" is frequently used to refer to
the right, authority and duty, created and conferred by law, by which, for a given period
either fixed by law or enduring at the pleasure of the creating power, an individual is invested
with some portion of the sovereign functions of government, to be exercised by that
individual for the benefit of the public.
(2) NO. Resolution No. 94-3710 has not abolished any public office as that term is used in the
law of public officers. It is essential to note that none of the "changes in organization"
introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination
of the relationship of public employment between the Commission and any of its officers and
employees.
The 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of
the Civil Service Commission, did not mean to freeze those Offices and to cast in concrete, as
it were, the internal organization of the Commission until it might please Congress to change
such internal organization regardless of the ever changing needs of the Civil Service as a
whole. To the contrary, the legislative authority had expressly authorized the Commission to
carry out "changes in the organization," "as the need [for such changes] arises."
To the second claim of petitioners that their right to security of tenure was breached by the
respondent's in promulgating Resolution No. 94-3710 and ordering petitioners' assignment to
the Commission's Regional Offices in Regions III and V, firstly, the appointments to the staff of
the Commission are not appointments to a specified public office but rather appointments to
particular positions or ranks. The petitioners were each appointed to the position of Director
IV, without specification of any particular office or station.
Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes
reassignment as a management prerogative vested in the Commission and, for that matter, in
any department or agency of government embraced in the civil service (Reassignment= An
employee may be re-assigned from one organizational unit to another in the same agency;
Provided, That such re-assignment shall not involve a reduction in rank, status and salary.")
The reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA
and OPR, respectively, to the Research and Development Office (RDO) in the Central Office of
the Commission in Metropolitan Manila and their subsequent assignment from the RDO to
the Commission's Regional Offices in Regions V and III had been effected with express
statutory authority and did not constitute removals without lawful cause. It also follows that
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 6 Ma. Jessa M. Alvarez
such re-assignment did not involve any violation of the constitutional right of petitioners to
security of tenure considering that they retained their positions of Director IV and would
continue to enjoy the same rank, status and salary at their new assigned stations, which they
had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had
not, in other words, acquired a vested right to serve at the Commission's Head Office.
The rule which proscribes transfers without consent as anathema to the security of tenure is
predicated upon the theory that the officer involved is appointed - not merely assigned - to a
particular station. In default of any particular station stated in their respective appointments,
no security of tenure can be asserted by the petitioners on the basis of the mere assignments,
which were given to them. A contrary rule will erase altogether the demarcation line we have
repeatedly drawn between appointment and assignment as two distinct concepts in the law
of public officers.
The reassignment of petitioners Fernandez and de Lima from their stations in the OPIA and
OPR, respectively, to the Research Development Office (RDO) and from the RDO to the
Commissions' Regional Offices in Regions V and III, respectively, without their consent, did not
constitute a violation of their constitutional right to security of tenure
SEGOVIA V. NOEL | Malcolm, 1925
FACTS
Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on January 21, 1907.
He continuously occupied this position until having passed sixty-five. He was ordered by the
Secretary of Justice on July 1, 1924, to vacate the office. Since that date, Pedro Noel, the
auxiliary justice of the peace has acted as justice of the peace for the municipality of
Dumanjug.
Segovia instituted friendly quo warranto proceedings in the Court of First Instance of Cebu to
inquire into the right of Pedro Noel to occupy the office of justice of the peace, to oust the
latter therefrom, and to procure reinstatement as justice of the peace of Dumanjug.
Judgment was rendered in favor of petitioner and against respondent.
Petitioner contends that the trial judge erred in declaring that the limitation regarding the age
of justices of the peace provided by section 1 of Act No. 3107 is not applicable to justices of
the peace and auxiliary justices of the peace appointed and acting before said law went into
effect
ISSUE
Whether that portion of Act No. 3107 which provides, that justices of the peace and auxiliary
justices of the peace shall be appointed to serve until they have reach the age of sixty-five years,
should be given retroactive or prospective effect.
HELD/RATIO
PROSPECTIVE EFFECT. Fundamental principle: a public office cannot be regarded as the property of
the incumbent, and that a public office is not a contract.
Act No. 1450, in force then Vicente Segovia was originally appointed justice of the peace,
amended section 67 of the Judiciary Law by making the term of office of justices and auxiliary
justices of the peace two years from the first Monday in January nearest the date of
appointment. Shortly after Segovia's appointment, however, the law was again amended by
Act. No. 1627 by providing that "all justices of the peace and auxiliary justices of the peace
shall hold office during good behavior and those now in office shall so continue." Later
amended by Acts Nos. 2041 and 2617, the law was ultimately codified in sections 203 and 206
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of the Administrative Code which section 1 of Act No. 3107 amended by adding at the end
thereof the following proviso: "Provided, That justices and auxiliary justices of the peace shall
be appointed to serve until they have reached the age of sixty-five years." But section 206 of
the Administrative Code entitled "Tenure of office," and reading "a justice of the peace having
the requisite legal qualifications shall hold office during good behavior unless his office be
lawfully abolished or merged in the jurisdiction of some other justice," was left unchanged by
Act No. 3107
A sound canon of statutory construction is that a statute operates prospectively only and
never retroactively, unless the legislative intent to the contrary is made manifest either by the
express terms of the statute or by necessary implication. No court will hold a statute to be
retroactive when the legislature has not said so. As our Civil Code has it in Article 3, "Law shall
not have a retroactive effect unless therein otherwise provided."
The same rule is followed by the courts with reference to public offices. "Though there is no
vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in
a sense, a right to his office. If that right is to be taken away by statute, the terms should be
clear in which the purpose is stated."
The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no
indication of retroactive effect. The law signifies no purpose of operating upon existing rights.
A proviso was merely tacked on to section 203 of the Administrative Code, while leaving
intact section 206 of the same Code which permits justices of the peace to hold office during
good behavior. In the absence of provisions expressly making the law applicable to justices of
the peace then in office, and in the absence of provisions impliedly indicative of such
legislative intent, the courts would not be justified in giving the law an interpretation which
would legislate faithful public servants out of office.
DARIO V. MISON | Sarmiento, 1989
FACTS
On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING
A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE..., the
mandate of the people to Completely reorganize the government:
On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND
REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM
CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and
demoralization among the deserving officials and employees" the ongoing government
reorganization had generated...
January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE
MINISTRY OF FINANCE". Among other offices, Executive Order No. 127 provided for the
reorganization of the Bureau of Customs and prescribed a new staffing pattern therefor.
February 2, 1987, 11 the Filipino people adopted the new Constitution
January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a
Memorandum, in the nature of "Guidelines on the Implementation of Reorganization
Executive Orders," prescribing the procedure in personnel placement. It also provided that by
February 28, 1988, all employees covered by Executive Order 127 and the grace period
extended to the Bureau of Customs by the President of the Philippines on reorganization shall
be: a) informed of their re-appointment, or b) offered another position in the same
department or agency, or c) informed of their termination.
On January 26, 1988, Commissioner Mison addressed several notices to various Customs
officials stating that they shall continue to perform their respective duties and responsibilities
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Ma. Jessa M. Alvarez
in a hold-over capacity, and that those incumbents whose positions are not carried in the new
reorganization pattern, or who are not re-appointed, shall be deemed separated from the
service. A total of 394 officials and employees of the Bureau of Customs were given individual
notices of separation.
On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the
reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310
Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration,
which was denied. Commissioner Mison instituted certiorari proceedings.
On November 16, 1988, the Civil Service Commission further disposed the appeal (from the
resolution of the Reorganization Appeals Board) of five more employees. Commissioner
Mison challenged the Civil Service Commission's Resolution.
On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF
CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT
REORGANIZATION," was signed into law: Sec. 9. All officers and employees who are found by
the Civil Service Commission to have been separated in violation of the provisions of this Act,
shall be ordered reinstated or reappointed as the case may be without loss of seniority and
shall be entitled to full pay for the period of separation. Unless also separated for cause, all
officers and employees, including casuals and temporary employees, who have been
separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate
separation pay and retirement and other benefits...
On June 23, 1988, BenedictoAmasa and William Dionisio, customs examiners appointed by
Commissioner Mison pursuant to the ostensible reorganization subject of this controversy,
petitioned the Court to contest the validity of the statute.
On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission
had ordered reinstated by its June 30, 1988 Resolution filed their own petition to compel the
Commissioner of Customs to comply with the said Resolution.
Case for the Employees:
Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his relief on
orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of
his dismissal, which he alleges was upon the authority of Section 59 of Executive Order No.
127 (SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers
and employees of the Ministry shall, in a holdover capacity, continue to perform their
respective duties and responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service pursuant to Executive
Order No. 17 (1986) or Article III of the Freedom Constitution. Incumbents whose positions
are not included therein or who are not reappointed shall be deemed separated from the
service. Those separated from the service shall receive the retirement benefits to which they
may be entitled)
A provision he claims the Commissioner could not have legally invoked. He avers that he
could not have been legally deemed to be an "incumbent whose position is not included
therein or who is not reappointed to justify his separation from the service. He contends that
neither the Executive Order (under the second paragraph of the section) nor the staffing
pattern proposed by the Secretary of Finance abolished the office of Deputy Commissioner of
Customs, but, rather, increased it to three. Nor can it be said, so he further maintains, that he
had not been "reappointed" (under the second paragraph of the section) because
"reappointment therein presupposes that the position to which it refers is a new one in lieu of
that which has been abolished or although an existing one, has absorbed that which has been
abolished." He claims, finally, that under the Provisional Constitution, the power to dismiss
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public officials without cause ended on February 25, 1987, and that thereafter, public officials
enjoyed security of tenure under the provisions of the 1987 Constitution
- Like Dario, Vicente Feria asserts his security of tenure and that he cannot be said to be
covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 -
during the effectivity of the Provisional Constitution. He adds that under Executive Order No.
39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the
Commissioner of Customs has the power "to appoint all Bureau personnel, except those
appointed by the President," and that his position, which is that of a Presidential appointee,
is beyond the control of Commissioner Mison for purposes of reorganization.
Case for Commissioner Mison:
Provisions of Section 16, Article XVIII (Transitory Provisions) explicitly authorize the removal of
career civil service employees "not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of
this Constitution. For this reason, Mison posits, claims of violation of security of tenure are
allegedly no defense. That contrary to the employees' argument, Section 59 of Executive
Order No. 127 is applicable (in particular, to Dario and Feria), in the sense that retention in
the Bureau, under the Executive Order, depends on either retention of the position in the
new staffing pattern or reappointment of the incumbent, and since the dismissed employees
had not been reappointed, they had been considered legally separated. Moreover, Mison
proffers that under Section 59 incumbents are considered on holdover status, "which means
that all those positions were considered vacant."
The Commissioner's twin petitions are direct challenges to three rulings of the Civil Service
Commission: (1) the Resolution, dated June 30, 1988, reinstating the 265 customs employees
above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and (3)
the Resolution, dated November 16, 1988, reinstating five employees
ISSUE
WONSection 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the
Government to remove career public officials it could have validly done under an "automatic"-
vacancy-authority and to remove them without rhyme or reason.
HELD/RATIO
NO. Section 16 Article XVIII, of the 1987 Constitution:
Sec. 16. Career civil service employees separated from the service not for cause but as a result of
the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution shall be entitled to appropriate separation pay and to
retirement and other benefits accruing to them under the laws of general application in force at
the time of their separation. In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its subdivisions, instrumentalities, or
agencies, including government-owned or controlled corporations and their subsidiaries. This
provision also applies to career officers whose resignation, tendered in line with the existing policy
The above provision comes as a mere recognition of the right of the Government to reorganize its
offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution:
Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are
dictated by the need to hasten the passage from the old to the new Constitution free from the
"fetters" of due process and security of tenure.
As we have seen, since 1935, transition periods have been characterized by provisions for
"automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a
restraint upon the Government to dismiss public servants at a moment's notice. If the present
PROF. GISELLA N. DIZON-REYES
 8 Ma. Jessa M. Alvarez
Charter envisioned an "automatic" vacancy, it should have said so in clearer terms. Plainly the
concern of Section 16 is to ensure compensation for "victims" of constitutional revamps -
whether under the Freedom or existing Constitution - and only secondarily and impliedly, to
allow reorganization.
In order to be entitled to the benefits granted under Section 16 of Article XVIII of the
Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:
1. The separation must not be for cause, and 2. The separation must be due to any of the
three situations mentioned.
-By its terms, the authority to remove public officials under the Provisional Constitution
ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. It can only
mean, then, that whatever reorganization is taking place is upon the authority of the present
Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it cannot
be legitimately stated that we are merely continuing what the revolutionary Constitution of
the Revolutionary Government had started. We are through with reorganization under the
Freedom Constitution - the first stage. We are on the second stage - that inferred from the
provisions of Section 16 of Article XVIII of the permanent basic document.
After February 2, 1987, incumbent officials and employees have acquired security of tenure.
The present organic act requires that removals "not for cause" must be as a result of
reorganization. As we observed, the Constitution does not provide for "automatic" vacancies.
It must also pass the test of good faith. As a general rule, a reorganization is carried out in
"good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that
event, no dismissal (in case of a dismissal) or separation actually occurs because the position
itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that
as it may, if the "abolition," which is nothing else but a separation or removal, is done for
political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no
valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an
invalid "abolition" as where there is merely a change of nomenclature of positions, or where
claims of economy are belied by the existence of ample funds.
The Court finds that Commissioner Mison did not act in good faith since after February 2,
1987 no perceptible restructuring of the Customs hierarchy - except for the change of
personnel - has occurred, which would have justified (all things being equal) the contested
dismissals. There is also no showing that legitimate structural changes have been made - or a
reorganization actually undertaken, for that matter - at the Bureau since Commissioner Mison
assumed office, which would have validly prompted him to hire and fire employees.
With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59
thereof, "Those incumbents whose positions are not included therein or who are not
reappointed shall be deemed separated from the service." He submits that because the 394
removed personnel have not been "reappointed," they are considered terminated. To begin
with, the Commissioner's appointing power is subject to the provisions of Executive Order No.
39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau
personnels except those appointed by the President." Thus, with respect to Deputy
Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly
terminated them, they being Presidential appointees.
That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere
holdover status cannot mean that the positions held by them had become vacant. The
occupancy of a position in a holdover capacity was conceived to facilitate reorganization and
would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to
February 2, 1987 when the 1987 Constitution became effective. After the said date the
provisions of the latter on security of tenure govern
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Main Points:
1. The President could have validly removed government employees, elected or appointed, without
cause but only before the effectivity of the 1987 Constitution on February 2, 1987. Section 59 (on
non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination.
2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon
their option be given reemployment opportunities
3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting
in the separation of career civil service employees provided, that such a reorganization is made in
good faith.
MATHAY V. CA | Ynares-Santiago, 1999
FACTS
During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents
to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil
Service Units were created pursuant to Presidential Decree No. 51
On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that
Presidential Decree No. 51 was never published in the Official Gazette. Therefore,
conformably with our ruling in Tanada vs. Tuvera the presidential decree is deemed never "in
force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . .
On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing
all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from
issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential
Decree No. 51 on the ground that the same never became law. Among those affected by the
revocation of appointments are private respondents in these three petitions
The effects of the circular were temporarily cushioned by the enactment of City Ordinance
No. NC-140, Series of 1990, which established the Department of Public Order and Safety
(DPOS).
Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-
Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are
hereby absorbed into the department of public order and safety established under Section
one hereof to be given appropriate position titles without reduction in salary, seniority rights
and other benefits.
Despite the provision on absorption, the regular and permanent positions in the DPOS were
not filled due to lack of funds for the new DPOS and the insufficiency of regular and
permanent positions created.
Mayor Brigido R. Simon remedied the situation by offering private respondents contractual
appointments for the period of June 5, 1991 to December 31, 1991. The appointments were
renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992.
On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July
1, 1992, Mayor Mathay again renewed the contractual appointments of all private
respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments,
however, were no longer renewed.
After the non-renewal of their appointments, private respondents in these two petitions
appealed to the Civil Service Commission. The CSC issued separate resolutions holding that
the reappointment of private respondents to the DPOS was automatic, pursuant to the
provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990, and ordering
their reinstatement to their former positions in the DPOS.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 9

Petitioner brought petitions for certiorari which was referred to the Court of Appeals. As seniority rights and permanent status did not arise since they have no valid appointment. For
stated, the Court of Appeals dismissed. them to enter the Civil Service after the revocation and cancellation of their invalid
In the instant petition for review, petitioner asserts that the Court of Appeals erred when it appointment, they have to be extended an original appointment, subject again to the
ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" attesting power of the Civil Service Commission.
private respondents in the DPOS "Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically
absorbed/reappointed/appointed/reinstated into the newly created DPOS.
ISSUE It is axiomatic that the right to hold public office is not a natural right. The right exists only by
WON CSC has the authority to direct Mathay to reinstate private respondents to DPOS. virtue of a law expressly or impliedly creating and conferring it. Since Presidential Decree 51
creating the CSU never became law, it could not be a source of rights. Neither could it impose
HELD/RATIO duties. It could not afford any protection. It did not create an office. It is as inoperative as
NO. The law applicable is B.P. 337 or the old Local Government Code and not the Local though it was never passed.
Government Code of 1992, which became effective only on January 1, 1992, when the material At the most, private respondents held temporary and contractual appointments. The non-
events in this case transpired renewal of these appointments cannot therefore be taken against petitioner. The acceptance
Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that by the petitioner of a temporary appointment resulted in the termination of official
Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct relationship with his former permanent position. When the temporary appointment was not
CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the renewed, the petitioner had no cause to demand reinstatement thereto.
city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the
newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that
the power to appoint rests exclusively with the local chief executive and thus cannot be
usurped by the city council or sanggunian through the simple expedient of enacting
ordinances that provide for the "absorption" of specific persons to certain positions.
The Court of Appeals makes the sweeping statement that "the doctrine of separation of
powers is not applicable to local governments. The powers of the city council and the city
mayor are expressly enumerated separately and delineated by B.P. 337.
The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the
local chief executive. The power of the city council or sanggunian, on the other hand, is
limited to creating, consolidating and reorganizing city officers and positions supported by
local funds. The city council has no power to appoint. This is clear from Section 177 of B.P.
337, which lists the powers of the sanggunian. The power to appoint is not one of them.
Expressiouniusestexclusioalterius. Had Congress intended to grant the power to appoint to
both the city council and the local chief executive, it would have said so in no uncertain terms
By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the
Ordinance, the Civil Service Commission substituted its own judgment for that of the
appointing power
The Civil Service Commissions power is limited to approving or disapproving an appointment.
It does not have the authority to direct that an appointment of a specific individual be made.
Once the Civil Service Commission attests whether the person chosen to fill a vacant position
is eligible, its role in the appointment process necessarily ends. The Civil Service Commission
cannot encroach upon the discretion vested in the appointing authority.
When the Civil Service Commission ordered the reinstatement of private respondents, it
technically issued a new appointment. This task, i.e. of appointment, is essentially
discretionary and cannot be controlled even by the courts as long as it is properly and not
arbitrarily exercised by the appointing authority.
Appointment is essentially a discretionary power and must be performed by the officer in
which it is vested.
Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated
therein is not possible. Since the CSU never legally came into existence, the private
respondents never held permanent positions. Accordingly, as petitioner correctly points out,
the private respondents appointments in the defunct CSU were invalid ab initio. Their

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DIMAANDAL V. COA | Martinez, 1998
FACTS
Nov. 28, 1992, ZosimoDimaandal, then holding the position of Supply Officer III was
designated as Acting Assistant Provincial Treasurer by then Gov. Vicente Mayo of Batangas.
Dimaandal filed a claim for the difference in salary and Representation and Transpo
Allowance (RATA) of AsstsProvl treas. And Supply Ofcr, III (P61,308.00).
Provincial Auditor allowed only P8,400.00 which corresponds to the difference in the
allowance attached to the designation and the position occupied since the designation is
temporary in nature and does not amount to an appointment as would entitle Dimaandal to
receive the salary of the position.
Dimaandal appealed to COA, which sustained the stand of the Provl Auditor since he was
merely designated as Asst. Provl Treas. in addition to his regular duties. COA further opined
that he is not entitled to receive the difference (P8,400) since the party designating him to the
position is not the duly competent authority.
Dimaandal cites Menzon v. Petilla: de facto officers are entitled to salary for services actually
rendered.
ISSUE
WON Dimaandal is a de facto officer entitled to salary for services.
HELD/RATIO
NO. The governor did not have the authority to appoint nor designate one temporarily in cases of
temporary absence or disability or a vacancy in a provincial office. That power resides in the
President (Sec.2077, Rev. Admin. Code) or the secretary of Finance (Sec. 471, Loc. Gov. Code).
Dimaandals designation by Gov. Mayo is defective and confers no right to claim the
differences in salary. Moreover, Dimaandals designation and the govs absence of authority
to authorize payment of addtl salary and RATA does not make him a de facto officer.
Further, the case of Menzon is not applicable in this case since in that case, what was
extended was an appointment to the vacant position of vice-gov. Here, what was extended
was a mere designation.
Appointment= selection by the proper authority of an individual who is to exercise the
powers and functions of a given office
Designation= merely connotes an imposition of additional duties, does not entail payment of
additional benefits nor the right to claim the salary attached to the position.
De Facto Officer= one who derives his appointment from one having colourable authority to
appoint and whose appointment is valid on its face; one who is in possession of an office and
is discharging its duties under color of authority, by which is meant authority derived from an
appointment, however irregular or informal; one who is in possession of an office in the open
exercise of its functions under color of an election or an appointment, even though such
election or appointment may be irregular.
MALALUAN V. COMELEC | Hermosisima, 1996
FACTS
Luis Malaluan and Jose Evangelista were both mayoralty candidates on the municipality of
Kidapawan, North Cotabato.
Evangelista was proclaimed by the Municipal Board off Canvassers as duly elected mayor.
Malaluan filed an election protest with the RTC. RTC declared Malaluan as the duly elected
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mayor. Evangelista appealed the decision to the COMELEC. Malaluan filed a motion for
execution pending appeal which was grabned by the RTC. Thus, Malaluan assumed the office
of municipal mayor.
1st Division COMELEC ordered Malaluan to vacate the office having found that Evangelista
was the duly elected mayor. COMELEC en banc affirmed.
Malaluan filed this petition.
note: term expired June 30,1995. Petition has become moot. However, question as to
damages is ripe for adjudication.
Claimed as part of the damages to which Evangelista is allegedly entitled to is the salary that
would have accrued to him had there been no execution of the RTCs decision pending
appeal.
ISSUE
WON Malaluan is a usurper and should pay the damages and salaries to Evangelista.
HELD/RATIO
NO. Malaluan is not a usurper because a usurper is one who undertakes to act officially w/o and
color of right, while Malaluan exercised the duties of an elective office under color of election
thereto.
Malaluan is a de facto officer who in good faith has had possession of the office and had
discharged the duties pertaining thereto and is therefore legally entitled to the emoluments
of the office.
The long-standing rule is that notwithstanding subsequent ouster as a result of an election
protest, an elective official who has been proclaimed by the COMELEC as winner and who
assumed office and entered into the performance of the duties of that office is entitled to the
compensation legally provided for the position. This is in keeping with the ordinary course of
events. The emolument must go to the person who rendered the service unless the contrary
is proved.
criterion for a justifiable award of election protest expenses ans salaries remains to be the
existence of a pertinent breach of obligations arising from k, quasi-k, tortious acts, crimes, or
a specific legal provision authorizing the money claim.
the 1st Division COMELEC reasoned that Evangelista was the one elected, he was ousted not
by final judgment but by an order of execution pending appeal which was groundless; that
Malaluan occupied the position in an illegal manner as a usurper and that he had no right to
the salaries of the office. However, there is no pertinent breach of obligations arising from k,
quasi-k, tortious acts, crimes that can be attributed to Malaluan nor did Evangelista point out
a specific legal provision authorizing the money claim.
that Malaluan was proclaimed winner by the RTC and not by COMELEC is of no moment since
it is a well-settled rule that as much recognition should be given to the value of the decision
of a judicial body as a basis for the right to assume office as that given by law to the
proclamation made by the Board of Canvassers.
the damage may be said to be damnumabsqueinjuria= damage inflicted without injustice or
without violation of a legal right for which the law provides no remedy.
FLORES V. DRILON | Bellosillo, 1993
FACTS
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Petitioners challenge the constitutionality of RA 7227: Bases Conversion and Development Act
of 1992 under which Mayor Richard Gordon of Olongapo City was appointed as Chairman and
Chief Executive of SBMA.
sec. 13 par. (d) contains a proviso saying that for the 1st year of its effectivity, the mayor of
Olongapo shall be appointed as chair and chief exec of SBMA. Petitioners claim this to be
violative of a) sec. 7 Art. IX-B Consti (no elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure) since mayor of
Olongapo is an elective office, b) sec 16 Art VII Consti (that the Pres shall appoint all other
ofcrs of govt whose appointments are not provided by law) since Congress through the
proviso appointed Gordon.
ISSUE
WON the appointment is unconstitutional.
HELD/RATIO
YES. The proviso directs the president to appoint an elective e official as chair of SBMA which is
exactly what the consti proscription seeks to prevent
sec.94 LGC permits the appointment of an elective official to another post if so allowed by law
or by primary functions of his office. However, no legislative act can prevail over the
fundamental law of the land.
it is argued that the SBMA posts are ex officio to the position of the mayor of Olongapo and is
thus an exception to the proscription. The argument is based on a wrong premise since
Congress did not contemplate the SBMA posts as ex officio or automatically attached to the
Office of the Mayor of Olongapo w/o need of appointment. The phrase shall be appointed
shows the intent to make the SBMA posts appointive.
the proviso is a legislative encroachment on the power of the president to appoint as it
already specified the person who is to occupy the position and the president has no choice
under the law but to appoint the mayor of olongapo.
being an elective official, Gordon is not eligible for appointment to the position of SBMA
chair. His appointment pursuant to a le3gislation contravening the consti cannot be sustained.
However, he remains to be the mayor of Olongapo and his acts as SBMA Chair are not
necessarily void since he may be deemed as 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 3rd 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 appointing body, or by reason of some
defect or irregularity in its exercise, or under color of an election or appointment by or
pursuant to a public unconstitutional law before the same is adjudged to be such.
in accordance w/ the ruling in CLU emoluments received by Gordon pursuant to his
appointment may be retained by him.
TORRES V. RIBO | Tuason, 1948
FACTS
Torres, Ribo andBalderian were candidates for provincial governor of Leyte.
Ribonad 2 mems of the provl board were candidates and disqualified to form parts of the
provl board of canvassers.
COMELEC appointed the division superintendent of schools, district engr and the district
health ofcr to replace the disqualified members.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 11
division superintendent of schools & district engr were out of town so in the meantime,
Tizon, asst. Civil engr and Pascual, chief clerk in the division superintendent of schools
substituted.
they canvassed the votes and proclaimed Ribo as gov-elect.
provl board of canvassers had a 2nd meeting this time w/ the division superintendent of
schools & district engr. They made a new canvass of votes and proclaimed Ribo as governor.
ISSUE
WON Tizon and Pascual were lawful members of the provincial board of canvassers.
HELD/RATIO
NO. Sec.158 of the Rev. Election Code designates teh officers who are to comprise the provincial
board of canvassers and sec.159 enumerates the officers to be appointed substitute members. The
express enumeration excludes all other officers. Moreover, an officer to whom a discretion is
entrusted cannot delegate it to another.
moreover, Tizon and Pascual were not de facto officers as maintained by Ribo. An officer de
facto is one who has the reputation of being the officer he assumes to be, and yet is not a
good officer in point of law. He must have acted as an officer for such a length of time, under
color of title and under such circumstances of reputation or acquiescence by the public and
public authorities, as to afford a presumption of appointment or election, and induce people,
w/o inquiry, amd relying on the supposition that he is the officer he assumes to be.
Tizon and Pascual did not posses any of these conditions. They acted w/o appointment,
sommission, or any color of title to the office. There was no acquiescence public or private.
thus, there were only 3 lawful members sitting on the board of canvassers. Under sec.159 of
rev. Election code, the provincial board of canvassers must be composed of 6 members. 3
members is not enough compliance with the law. There must at least be a quorum = 4. The
meeting of the provincial board of canvassers and the proclamation in that meeting were
illegal and of no effect.
TUANDA V. SANDIGANBAYAN | Kapunan, 1995
FACTS
On 9 February 1989, private respondents Delia Estrellanes and BartolomeBinaohan were
designated as industrial labor sectoral representative and agricultural labor sectoral
representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros
Oriental by then Secretary Luis T. Santos of the Department of Local Government. They took
their oath of office.
On 4 May 1990, private respondents filed a petition for mandamus to recognize them as
members on the Sangguniang Bayan. It was dismissed
Thereafter, petitioners filed action with the Regional Trial Court to declare null and void the
designations of private respondents as sectoral representatives,
An information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936
charging petitioners
by refusing to pay despite demand the amount of P95,350.00
and P 108,900.00 representing respectively their per diems, salaries and other privileges and
benefits, and such undue injury continuing to the present to the prejudice and damage of
BartolomeBinaohan and Delia Estrellanes.
petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in
Criminal Case
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 12 Ma. Jessa M. Alvarez
on the ground that a prejudicial question exists in Civil Case
pending before the Regional Trial Court.
Regional Trial Court rendered a decision declaring, null and void ab initio the designations
issued by the Department of Local Government to the private respondents as sectoral
representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337. otherwise
known as the Local Government Code.: there must be a determination to be made by the
Sangguniang itself that the said sectors are of sufficient number in the city or municipality to
warrant representation... in cases where the Sanggunian concerned has not yet determined
that the Industrial and Agricultural Labor Sectors in their particular city or municipality are of
sufficient number to warrant representation, there will absolutely be no basis for the
designation/appointments.
Since in the present case, there was total absence of the required prior determination by the
Sangguniang Bayan of Jimalalud, the designations of private defendants as sectoral
representatives null and void.
Private respondents appealed to the Court of Appeals
Meanwhile, Sandiganbayan issued a resolution denying the motion for suspension of
proceedings filed by petitioners.It appears, nevertheless, that the private complainants have
been rendering services on the basis of their respective appointments as sectoral members of
the Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental, and that their said
appointments enjoy the presumption of regularity. Having rendered such services, the private
complainants are entitled to the salaries attached to their office. Even assuming that the said
Regional Trial Court shall later decide that the said appointments of the private complainants
are null and void, still the private complainants are entitled to their salaries and compensation
for service they have actually rendered, for the reason that before such judicial declaration of
nullity, the private complainants are considered at least de facto public officers acting as such
on the basis of apparently valid appointments issued by competent authorities.
Petitioners filed a motion for reconsideration which was denied. Hence, this special civil
action for certiorari and prohibition.
ISSUE
WON private respondents are entitled to compensation for actual services rendered.
HELD/RATIO:
NO. Private respondents insist that even if their designations are nullified, they are entitled to
compensation for actual services rendered. However, as found by the trial court and as borne out
by the records, from the start, private respondents designations as sectoral representatives have
been challenged by petitioners. The private respondents' claim that they have actually rendered
services as sectoral representatives has not been established.
Sandiganbayan 's thesis that even in the event that private respondents' designations are
finally declared invalid, they may still be considered de facto public officers entitled to
compensation for services actually rendered is unmeritorious.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the public; and
3) There must be actual physical possession of the office in good faith.
One can qualify as a de facto officer only if all the aforestated elements are present. There
can be no de facto officer where there is no de jure office although there may be a de facto
officer in a de jure office.
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MONROY V. CA | Bengzon, 1967
FACTS
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, he filed his certificate
of candidacy as representative of the first district of Rizal in the forthcoming elections with
the COMELEC. Three days later petitioner filed a letter withdrawing said certificate of
candidacy. COMELEC approved the withdrawal
respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as
municipal mayor on the theory that petitioner had forfeited the said office upon his filing of
the certificate of candidacy
in a suit for injunction instituted by petitioner against respondents Court of First Instance held
that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy
was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon
his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as
actual damages, the salaries to which respondent was entitled as Mayor from September 21,
1961 up to the time he can reassume said office.
on appeal by petitioner to the Court of Appeals, CA affirmed
Hence, this petition for certiorari.
ISSUE
WON Monroy was a de facto officer entitled to mayoralty salaries from the time he withdrew his
candidacy.
HELD/RATIO
NO. Sec. 27 of the Rev. Election Code providing that
Any elective provincial, municipal, or city official running for an office, other than the one which
he is actually holding, shall be considered resigned from his office from the moment of the filing of
his certificate of candidacy.
The forfeiture is automatic and permanently effective upon the filing of the certificate of
candidacy for another office. Only the moment and act of filing are considered. Once the
certificate is filed, the seat is forfeited forever and nothing save a new election or
appointment can restore the ousted official.
The withdrawal of a certificate of candidacy does not necessarily render the certificate void
ab initio. Once filed, the permanent legal effects produced thereby remain even if the
certificate itself be subsequently withdrawn.
Petitioner maintains that respondent Court of Appeals erred in affirming a lower court
judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the
salaries he was allegedly entitled to receive from September 21, 1961, to the date of
petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez
v. Tan
holding that a senator who had been proclaimed and had assumed office but was later on
ousted in an election protest, is a de facto officer during the time he held the office of
senator, and can retain the emoluments received even as against the successful protestant
Petitioner's factual premise is the appellate court's finding that he was a de facto officer when
he continued occupying the office of mayor after September 15, 1961.
Rodriguez case is not applicable here for absence of factual and legal similarities. The
Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the
office and was subsequently ousted as a result of an election contest
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
But the case at bar does not involve a proclaimed elective official who will be ousted because
of an election contest. The present case for injunction and quo warranto involves the
forfeiture of the office of municipal mayor by the incumbent occupant thereof and the claim
to that office by the vice mayor because of the operation of Sec. 27 of the Rev. Election Code.
It is the general rule then, i.e., "that the rightful incumbent of a public office may recover
from an officer de facto the salary received by the latter during the time of his wrongful
tenure, even though he entered into the office in good faith and under color of title" that
applies in the present case.
the de facto doctrine has been formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and individuals who get involved in the
official acts of persons discharging the duties of an office without being lawful officers.
A de facto officer, not having good title, takes the salaries at his risk and must therefore
account to the de jure officer for whatever amount of salary he received during the period of
his wrongful retention of the public office
GEN. MANAGER, PPA V. MONSERATE | Salvador-Guttierez, 2002
FACTS
PPA underwent reorganization. Monserate applied for a permanent position of Manager II of
Resource Management Division and she was appointed such among 6 other contestants.
However, upon the protest of the 2nd placer (Anino), Julias appointment was rendered
ineffective without any explanation. She was not even notified of any hearing for the said
replacement. She was reappointed to a lower position (Administrative Officer) with lower
salary grade (SG 15) than what she was already receiving.
Respondent filed a motion for reconsideration but the same was denied by the CSC
respondent filed with the Court of Appeals a petition for review
the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions of the CSC.
It concluded that her reassignment from the position of Manager II, Resource Management
Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of
her constitutional right to security of tenure and due process.
Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition
ISSUE
(1) WON there was due process when respondent was replaced by petitioner Anino from her
position as Manager II, Resource Management Division, and demoted as Administrative Officer
(2) WON respondent is entitled to backpay differentials.
HELD/RATIO
(1) NO. The grounds for respondents demotion are incomprehensible for lack of discussion or
explanation by the Board to enable respondent to know the reason for her demotion. The PPA
Appeals Board Resolution was void for lack of evidence and proper notice to respondent.
Her demotion, tantamount to a revocation of her appointment as Manager II, is a patent
violation of her constitutional rights to security of tenure and due process. Once 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, 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.
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2003-29275 October 6, 2011 13
when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the
Resource Management Division, it merely restored her appointment to the said position to
which her right to security of tenure had already attached. To be sure, her position as
Manager II never became vacant since her demotion was void. In this jurisdiction, "an
appointment to a non-vacant position in the civil service is null and void ab initio.
(2) YES. Backwages are in favor of respondent. While petitioner Aninos appointment to the
contested position is void, as earlier discussed, he is nonetheless considered a de facto officer
during the period of his incumbency. A de facto officer is one who is in possession of an office and
who openly exercises its functions under color of an appointment or election, even though such
appointment or election may be irregular.
In Monroy vs. Court of Appeals, Court ruled that a rightful incumbent of a public office may
recover from a de facto officer the salary received by the latter during the time of his
wrongful tenure, even though he (the de facto officer) occupied the office in good faith and
under color of title. A de facto officer, not having a good title, takes the salaries at his risk and
must, therefore, account to the de jure officer for whatever salary he received during the
period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary
Court allowed a de facto officer to receive emoluments for actual services rendered but only
when there is no de jure officer.
In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful
incumbency, is not entitled to the emoluments attached to the office, even if he occupied the
office in good faith.
This rule, however, cannot be applied squarely on the present case in view of its peculiar
circumstances. While her assumption to said lower position and her acceptance of the
corresponding emoluments cannot be considered as an abandonment of her claim to her
rightful office (Division Manager), she cannot recover full backwages for the period when she
was unlawfully deprived thereof. She is entitled only to backpay differentials for the period
starting from her assumption as Administrative Officer up to the time of her actual
reinstatement to her rightful position as Division Manager. Such backpay differentials pertain
to the difference between the salary rates for the positions of Manager II and Administrative
Officer. The same must be paid by petitioner Anino corresponding from the time he
wrongfully assumed the contested position up to the time of his retirement on November 30,
1997.
CIVIL LIBERTIES UNION (CLU) V. EXECUTIVE SECRETARY | Fernan, 1991
FACTS
Petitioner challenged EO 284 issued by Pres. Aquino, which in effect allowed Cabinet
members, their undersecretaries and assistant secretaries and other appointive officials of
the Executive Dept. to hold other positions (not more than two apart from their primary
positions) in the government albeit subject to limitations imposed therein.
The respondents in refuting the petitioners argument that the measure was violative of
Article VIII Section 13 of the Constitution, invoked Article IX-B Section 7,allowing the holding
of multiple positions by the appointive officialif allowed by law or by pressing functions of his
position.
ISSUE
WON EO 284 is unconstitutional.
PROF. GISELLA N. DIZON-REYES
 14 Ma. Jessa M. Alvarez
HELD/RATIO
YES. EO 284 is UNCONSTITUTIONAL. It allows cabinetmembers, undersecretaries or assistant
secretaries to holdmultiple offices in direct contravention of the express mandate of Section 13,
Article VII of the Constitution. Court is alerted by the respondents to the impractical consequence
that strictconstruction of said provision will bring considering that Cabinet members would be
stripped of their offices held in an ex-officio capacity but SC clarifies that ex-officio posts or those
required by the primary functions of the executive official do not fall within the definition of any
other office indicated in the constitutional prohibition.
Article VIII, Section 12. The Members of the Supreme Court and of other courts established by law
shall not be designated to any agency performing quasi-judicial or administrative functions.
Exceptions to prohibition on executive officers from holding the additional positions
a. VP as member of the Cabinet
Article VII, Section 3. There shall be a Vice-Presidentwho shall have the same qualifications and
term ofoffice and be elected with, and in the same manner, asthe President. He may be removed
from office in thesame manner as the President.The Vice-President may be appointed as aMember
of the Cabinet. Such appointment requires noconfirmation.
Note: It is submitted, however, that although the VP may beappointed to the Cabinet, he may not
receive additionalcompensation in second capacity because of the absoluteprohibition in Section 6,
Article VII.
b. Secretary of Justice as member, Judicial Bar andCouncil (JBC)
Article VIII, Section 8. (1) A Judicial and Bar Council ishereby created under the supervision of the
SupremeCourt composed of the Chief Justice as ex officioChairman, the Secretary of Justice, and
arepresentative of the Congress as ex officio Members, arepresentative of the Integrated Bar, a
professor oflaw, a retired Member of the Supreme Court, and arepresentative of the private sector.
c. Ex-officio positions
Prohibition under Sec. 13, Art. VII does not cover positions held without additional
compensation in ex-officio capacities as
provided by law and as required by the primary functions of the
concened officials office.
Definition of ex-officio: from office or by virtue of office. Denotes an act done in an official
character, or as a consequence of office and without any other appointment or authority than
that conferred by the office.
Example: Secretary of Transportation and Communications is theex-officio Chairman of the
Board of the Philippine Ports Authority, and the Light Rail Transit Authority (LRTA)
- Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources FulgencioFactoran, Jr.,
Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have become moot and
academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. It has been held that
"in cases where there is no de jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate action recover the salary, fees and
other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an
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2003-29275 October 6, 2011
officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.
MENZON V. PETILLA | Guttierez, 1991
FACTS
On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the
province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-
Governor, Leopoldo E. Petilla as Acting Governor of Leyte
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the
SangguniangPanlalawigan was also designated by Secretary Luis Santos to act as the Vice-
Governor for the province of Leyte.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the
Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the
legality of the appointment of the petitioner to act as the Vice-Governor of Leyte.
Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to
succession in the Office of the Vice-Governor in case of a temporary vacancy, the
appointment of the petitioner as the temporary Vice-Governor is not necessary since the
Vice-Governor who is temporarily performing the functions of the Governor, could
concurrently assume the functions of both offices.
SangguniangPanlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505
where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte.
there is no permanent (sic) nor a vacancy in said office.
petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. ZosimoAlegre,
sought clarification from Undersecretary Jacinto T. Rubillar, Jr.
that "there is no succession provided for in case of temporary vacancy in the office of the
vice-governor and that the designation of a temporary vice-governor is not necessary.
In view of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the
Department of Local Government, Region 8, ResurreccionSalvatierra, on July 17, 1989, wrote
a letter addressed to the Acting-Governor of Leyte, Leopoldo E Petilla, requesting the latter
that Resolution No. 505 of the SangguniangPanlalawigan be modified accordingly
Despite these several letters of request, the Acting Governor and the
SangguniangPanlalawigan, refused to correct Resolution No. 505 and correspondingly to pay
the petitioner the emoluments attached to the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner a petition for certiorari and mandamus. The
petition sought the nullification of Resolution No. 505 and for the payment of his salary for his
services as the acting Vice-Governor of Leyte. -During the pendency of the petition, more
particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the
payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of
P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent LeopoldoPetilla, by virtue of the above resolution
requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all
the emoluments and compensation which he received while acting as the Vice-Governor of
Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution.
The motion prayed that this Court uphold the petitioner's right to receive the salary and
emoluments attached to the office of the Vice-Governor while he was acting as such.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 15

The petitioner, for a long period of time, exercised the duties attached to the Office of the
ISSUE Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public
(1) WON there was a vacancy. policy on which the de facto doctrine is based and basic considerations of justice, it would be
(2) WON the Secretary of Local Government has the authority to make temporary appointments-- highly iniquitous to now deny him the salary due him for the services he actually rendered as
YES the acting Vice-Governor of the province of Leyte
-The additional compensation which the petitioner has received, in the amount exceeding the
HELD/RATIO salary authorized by law for the position of Senior Board Member, shall be considered as
(1) YES. The law on Public Officers is clear on the matter. There is no vacancy whenever the office payment for the actual services rendered as acting Vice-Governor and may be retained by
is occupied by a legally qualified incumbent. A sensucontrario, there is a vacancy when there is no him.
person lawfully authorized to assume and exercise at present the duties of the office. It can be
readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-
Governor LeopoldoPetilla was appointed Acting Governor. In the eyes of the law, the office to
which he was elected was left barren of a legally qualified person to exercise the duties of the
office of the Vice-Governor.
There is no satisfactory showing that LeopoldoPetilla, notwithstanding his succession to the
Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor.
The nature of the duties of a Provincial Governor call for a full-time occupant to discharge
them. More so when the vacancy is for an extended period. Precisely, it was Petilla's
automatic assumption to the acting Governorship that resulted in the vacancy in the office of
the Vice-Governor.
(2) YES. Under the circumstances of this case and considering the silence of the Local Government
Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created
by the vacancy, the President, acting through her alter ego, the Secretary of Local Government,
may remedy the situation. The temporary appointment extended to the petitioner to act as the
Vice-Governor is valid. The exigencies of public service demanded nothing less than the immediate
appointment of an acting Vice-Governor.
under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the
President is empowered to make temporary appointments in certain public offices, in case of
any vacancy that may occur. In the absence of any contrary provision in the Local Government
Code and in the best interest of public service, we see no cogent reason why the procedure
thus outlined by the two laws may not be similarly applied in the present case.
It was best for Leyte to have a full- time Governor and an acting Vice-Governor. Service to the
public is the primary concern of those in the government. It is a continuous duty unbridled by
any political considerations.
In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of
the Vice Governor is indubitable. The compensation, however, to be remunerated to the
petitioner, following the example in Commonwealth Act No. 588 and the Revised
Administrative Code, and pursuant to the proscription against double compensation must
only be such additional compensation as, with his existing salary, shall not exceed the salary
authorized by law for the Office of the Vice-Governor.
And even granting that the President, acting through the Secretary of Local Government,
possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto
officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color
of a known appointment. As revealed by the records, the petitioner was appointed by no less
than the alter ego of the President, the Secretary of Local Government, after which he took
his oath of office before Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra. The appointment has the color of validity. LABO JR. V. COMELEC | Bidin, 1992

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 16 Ma. Jessa M. Alvarez
FACTS
Ramon Labo Jr. believing he is a Filipino citizen launched his candidacy for Mayor of Baguio
City. Roberto Ortega also filed his candidacy for the same office.
Ortega filed a disqualification proceeding against Labo before the COMELEC on the ground
that Labo is not a natural-born citizen. He presented the decision in the 1989 case of Labo v.
COMELEC where the Court ruled that Labo is not a Filipino citizen.
COMELEC denied due course to Labos certificate of candidacy.
Labo filed motion to stay implementation of resolution.
COMELEC ordered that the disqualification of Labo be final and executory 5 days after date of
promulgation; Labo may still be voted upon subject to final outcome of the case.
COMELEC however suspended the proclamation of Labo in the event he wins.
L contends that he is a Filipino Citizen, that he has reacquired his citizenship by citing his
application for reacquisition of Filipino citizenship filed before the OSG. He also claims that
under Sec. 72 of the Omnibus Election Code, his proclamation as winning candidate is allowed
since the resolution disqualifying him was not yet final at the time the election was held.
ISSUE
(1) WON Labo is qualified to be proclaimed the Mayor of Baguio City.
(2) WON Ortega, receiving the second highest number of votes should be declared Mayor of
Baguio.
HELD/RATIO
(1) NO. The resolution cancelling Labo's certificate of candidacy on the ground that he is not a
Filipino citizen having acquired finality constrained the Court to rule against his proclamation
as Mayor of Baguio City. Labo was disqualified as a candidate for being an alien. His election
does not restore his Phil citizenship, the possession of which is an indispensable requirement
for holding public office (Sec. 39, LGC).
Citing itself in Frivaldo v COMELEC, the court had once said that: . . . The fact that he was
elected by the people of Sorsogon does not excuse this patent violation of the salutary rule
limiting public office and employment only to the citizens of this country. The qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the people
as expressed through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to serve
in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring
and renouncing all fealty and fidelity to any other state.
(2) NO. The disqualification of Labo does not necessarily entitle Ortega to proclamation as Mayor
of Baguio because the fact remains that he was not the choice of the sovereign will. Ruling
otherwise would amount to disenfranchising the electorate.
Note: the rule would have been diff if the electorate were aware of Labos disqualification
and still voted for him since the electorate may then be said to have waived the validity and
efficacy of their votes, in which case, the candidate obtaining the next highest # of votes may
be deemed elected.
Note: as consequence of Labos ineligibility, a permanent vacancy in the ofc occurred. This
should now be filled by the vice-mayor in accordance w/ Sec. 44 LGC.
FRIVALDO V. COMELEC | Panganiban, 1996
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2003-29275 October 6, 2011
FACTS
Juan Frivaldo filed his certificate of candidacy for Governor of Sorsogon.
Raul Lee, another candidate, filed a petition with the COMELEC praying that Frivaldo be
disqualified for not being a citizen of the Philippines.
COMELEC declared that Frivaldo is disqualified to run for not being a Filipino citizen.
Frivaldo filed an MR but remained unacted upon and so his name remained on the list of
candidates.
Upon completion of the canvass, Frivaldo garnered the highest number of votes, with Lee
coming in second.
However, upon Lees motion, the COMELEC directed that he be proclaimed as the winning
gubernatorial candidate. Accordingly, Lee was proclaimed Governor at 8:30PM of June 30,
1995.
Firvaldo on the same date, at 2:00PM took his oath of allegiance as Filipino citizen after his
repatriation had been granted under PD 725.
The COMELEC, in a later resolution, held that Lee, not having garnered the highest number of
votes was not legally entitled to be proclaimed and that Frivaldo (1) having garnered the
highest number of votes and (2) having acquired Filipino citizenship by repatriation was
qualified to hold office.
ISSUE
WON Frivaldos repatriation is valid and effective.
HELD/RATIO
YES. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that
such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D.
No. 725 are not difficult to comply with, nor are they tediou s and cumbersome. In fact, P.D. 725
itself requires very little of an applicant, and even the rules and regulations to implement the said
decree were left to the Special Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-time entry into Philippine political life, in repatriation
the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous
citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and
faithfully served his country and his province prior to his naturalization in the United States a
naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he
abhorred and could not in conscience embrace and who, after the fall of the dictator and the re-
establishment of democratic space, wasted no time in returning to his country of birth to offer
once more his talent and services to his people.
The law does not specify any particular date or time when the candidate must possess
citizenship, unlike that for residence (which must consist of at least one year's residency
immediately preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective public office, and
the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no
person owing allegiance to another nation, shall govern ou r people and our country or a unit
of territory thereof. Now, an official begins to govern or to discharge his functions only upon
his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo
re-assumed his citizenship on June 30, 1995the very day the term of office of governor (and
other elective officials) beganhe was therefore already qualified to be proclaimed, to hold
such office and to discharge the functions and responsibilities thereof as of said date. In short,
at that time, he was already qualified to govern his native Sorsogon. This is the liberal
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
interpretation that should give spirit, life and meaning to our law on qualifications consistent
with the purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government Code
speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates.
Another reason for reckoning citizenship at the time of proclamation, not the date of election
or filing of certificate of candidacy Section 253 of the Omnibus Election Code38 gives any
voter, presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that
authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising
from failure to meet the qualifications enumerated under Sec. 39 of the Local Government
Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of
the winning candidate. Hence, it is only at such time that the issue of ineligibility may be
taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation
(8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having
taken hisoath of allegiance earlier in the afternoon of the same day, then he should have
been the candidate proclaimed as he unquestionably garnered the highest number of votes in
the immediately preceding elections and such oath had already cured his previous "judicially-
declared" alienage. Hence, at such time, he was no longer ineligible.
To remove all doubts on this important issue, we also hold that the repatriation of Frivaldo
RETROACTED to the date of the filing of his application on August 17,1994.
BENGSON III V. HRET | Kapunan, 2001
FACTS
Teodoro Cruz was a natural-born citizen born in San Clemente, Tarlac of Filipino parents.
Cruz enlisted in the US Marine Corps and took an Oath of allegiance to the US. Thus, he lost
his citizenship under CA 63: byrendering service to or accepting commission in the armed
forces of a foreign country
Cruz reacquired Philippine citizenship through repatriation under RA 2630. He ran and was
elected as the representative of the 2nd district of Pangasinan. He won over Antonio Bengson
III who was running for reelection.
Bengson filed a Quo Warranto Ad Cautelam case w/ HRET claiming Cruz was not qualified
since he is not a natural-born citizen as required under Art VI, Sec 6, of the Constitution.
HRET declared Cruz as duly elected.
ISSUE
WON Cruz, a natural-born citizen who became a US citizen, can still be considered a natural-born
Filipino upon his reacquisition of Filipino citizenship.
HELD/RATIO
YES. There are 2 ways of acquiring citizenship (1) by birth and (2) by naturalization. These
correspond w/ the 2 kinds of citizens (1) natural-born and (2) naturalized. A person who at th time
of his birth is a citizen of a particular country is a natural-born citizen thereof. Natural-born citizens
do not have to perform any act in order to perfect their citizenship.
Citizens who have lost their citizenship may however reacquire it in the manner provided by
law (CA 63). There are 3 modes (1) by naturalization (2) repatriation and (3) by direct act of
Congress.
Repatriation under various statutes may be had by those who lost citizenship due to (3)
service in the armed forces of the US at any other time it simply consists of taking an oath of
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 17
allegiance to the RP and registering said oath in the Local Civil Registry of the place where
person concerned resides or last resided.
Repatriation results in recovery of the ORIGINAL NATIONALITY. This means, he will be
restored to his prior status either as a natural-born or as a naturalized citizen.
Cruz, having taken the required oath of allegiance and having registered the same, is deemed
to have recovered his original status as natural-born citizen.
MERCADO V. MANZANO | Mendoza, 1999
FACTS
Mercado and Manzano were candidates for Makati Vice-Mayor. Manzano won. His
proclamation was suspended in view of the pending disqualification petition filed by Ernesto
Mamaril who claimed that Manzano was not a citizen of the Philippines but of the US.
COMELEC ordered the cancellation of the certificate of candidacy of Manzano on the ground
of dual citizenship and under sec4(d) of LGC, persons w/ dual citizenship are disqualified from
running for any elective position.
Manzano was born in San Francisco, California w/ Filipino parents and under US laws, he was
a US citizen. Thusm both a Filipino and a US citizen.
COMELEC suspended the proclamation of the winner but later reversed itself allowing
Manzano to run.
Manzano was proclaimed vice-mayor of Makati.
ISSUE
WON dual citizenship is a ground for disqualification.
HELD/RATIO
NO. Dual citizenship is different from dual allegiance.
Dual citizenship = arises when, as a result of the concurrent application of the different laws
of two or more states, a person is simultaneously considered a national by the said states. For
instance, such a situation may arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of
jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently
considered a citizen of both states. Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their
fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered
citizens, unless by their act or omission they are deemed to have renounced Philippine
citizenship.
Dual allegiance= refers to the situation in which a person simultaneously owes, by some
positive act, loyalty to two or more states. While dual citizenship is involuntary, dual
allegiance is the result of an individuals volition.
Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who maintain their
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 18 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

allegiance to their countries of origin even after their naturalization. Hence, the phrase dual
citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall
under this disqualification.
by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the
Constitution of the Philippines and bear true faith and allegiance thereto and that he does so
without mental reservation, private respondent has, as far as the laws of this country are
concerned, effectively repudiated his American citizenship and anything which he may have
said before as a dual citizen.

AASJS V. DATUMANONG | Quisumbing, 2007

FACTS
AASJS filed action for prohibition against Sec of Justice Datumanong to stop the
implementation of RA 9225 (Citizenship Retention and Reacquisition Act of 1993) on the
ground that the RA is unconstitutional as it violates sec.5, Art. IV of the 1987 Constitution
which states that Dual allegiance of citizens is inimical to the national interest and shall be
dealt with by law.
AASJS avers that Sec.2 and 3 allow dual allegiance and not dual citizenship.
Sec. 2- Philippine citizens who become citizens of another country shall be deemed not to
have lost their Phil citizenship
Sec. 3- deemed to have reacquired citizenship upon taking the following oath of allegiance
to the Republic
OSGs position: Section 2 merely declares as a state policy that "Philippine citizens who
become citizens of another country shall be deemed not to have lost their Philippine
citizenship." The OSG further claims that the oath in Section 3 does not allow dual allegiance
since the oath taken by the former Filipino citizen is an effective renunciation and repudiation
of his foreign citizenship. The fact that the applicant taking the oath recognizes and accepts
the supreme authority of the Philippines is an unmistakable and categorical affirmation of his
undivided loyalty to the Republic.

ISSUE
WON RA 9225 is unconstitutional.

HELD/RATIO
NO. The deliberations of Congress indicate that the law aims to facilitate the reacquisition of Phil
citizenship by speedy means.
The problem of dual citizenship is transferred from the Phils to the foreign country because
the latest oath of allegiance that will be taken by the former Filipino is one of allegiance to the
Phils and not to the foreign country. The problem of dual allegiance is transferred from the
Phils to the foreign country concerned.
That by swearing to the supreme authority of the Republic, the person implicitly renounces
his foreign citizenship.
What RA 9225 does is allow dual citizenship to natural-born Filipino citizens who have lost
citizenship by reason of their naturalization as citizens of a foreign country.

ROMUALDEZ-MARCOS V. COMELEC | Kapunan, 1995

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
FACTS
Imelda filed her certificate of candidacy for Representative of the 1st district of Leyte initially
declaring her residence in the constituency where she sought to be elected as 7 months.
Cinio Roy Montejo, incumbent representative and candidate for the same position filed a
petition for cancellation and disqualification with COMELEC alleging that Imelda did not meet
the constitutional requirement of 1 yr residency on the evidence of her declarations in her
Voters registration record and certificate of candidacy.
Imelda amended her certificate of candidacy (changing the entry 7 mos to since
childhood) that the entry of 7 mos was an honest mistake and that she has always
maintained Tacloban city as her domicile.
COMELEC came up with a resolution disqualifying Imelda and directing the suspension of her
proclamation in the event she wins.
Imelda won.
ISSUE
WON Imelda met the constitutional requirement of residency.
HELD/RATIO
YES. Residence, for the purpose of meeting the qualification for an elective position, has a settled
meaning in our jurisdiction. In its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given area, community or
country.
The essential distinction between residence and domicile in law is that residence involves the
intent to leave when the purpose for which the resident has taken up his abode ends. One
may seek a place for purposes such as pleasure, business, or health. If a person's intent be to
remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it
is residence. It is thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless, for various reasons,
he successfully abandons his domicile in favor of another domicile of choice.
RESIDENCE - used to indicate a place of abode, whether permanent or temporary
DOMICILE - denotes a fixed permanent residence to which, when absent, one has the
intention of returning.
The deliberations of the 1987 Constitution on the residence qualification for certain elective
positions have placed beyond doubt the principle that when the Constitution speaks of
"residence" in election law, it actually means only "domicile"
Minor follows the domicile of her parents.
That wife automatically follows the domicile of her husband upon marriage cannot be
inferred from Art 110 CC
Her transfer of places had different purposes for each and she maintains her roots in her
hometown.
Changing domicile:
1. Actual change of domicile
2. Bona fide intention of abandoning the former place of residence and establishing a new one
3. Acts which correspond to purpose
RODRIGUEZ V. COMELEC | Francisco, 1996
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 19
FACTS
Eduardo T. Rodriguez and Bienvenido O. Marquez, Jr. were protagonists for the gubernatorial
post of Quezon Province. Rodriguez won and was proclaimed duly-elected governor.
Marquez challenged Rodriguez victory. Marquez revealed that Rodriguez left the United
States where a charge, filed on November 12, 1985, is pending against the latter before the
Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted
grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a
ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code
(R.A. 7160).
COMELEC dismissed Marquezs petition. In the earlier MARQUEZ Decision, it was declared
that:x x x, fugitive from justice includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid prosecution.
In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same
position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for
disqualification before the COMELEC, based principally on the same allegation that Rodriguez
is a "fugitive from justice."
COMELEC ordered Rodriguez disqualified or ineligible from assuming and performing the
functions of Governor of Quezon Province. He was ordered to immediately vacate said office.
Further, he was disqualified from running for Governor for Quezon Province in the May 8,
1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections was set aside.
Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the
position of governor.
On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation
which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers
nonetheless proclaimed Rodriguez on May 12, 1995.
The COMELEC suspended Rodriguez' proclamation thus gave rise to the filing of the instant
petition for certiorari.
ISSUE
WON Rodriguez is a fugitive from justice and therefore disqualified.
HELD/RATIO
NO. The term "fugitive from justice" as a ground for the disqualification or ineligibility of a person
seeking to run for any elective local position under Section 40(e) of the Local Government Code,
should be understood according to the definition given in the MARQUEZ Decision, to wit:
"A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but
likewise those who, after being charged, flee to avoid prosecution."
Intent to evade on the part of a candidate must therefore be established by proof that there has
already been a conviction or at least, a charge has already been filed, at the time of flight.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the
Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of
Immigrations preceded the filing of the felony complaint in the Los Angeles Court on
November 12, 1985 and of the issuance on even date of the arrest warrant by that same
foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have
known about such felony complaint and arrest warrant at the time he left the US, as there
was in fact no complaint and arrest warrant much less conviction to speak of yet at such
time. What prosecution or punishment then was Rodriguez deliberately running away from
with his departure from the US? The very essence of being a "fugitive from justice" under the
MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez.
PROF. GISELLA N. DIZON-REYES
 20 Ma. Jessa M. Alvarez
Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the
Quezon Province gubernatorial post.
LECAROZ V. SANDIGANBAYAN | Bellosillo, 1999
FACTS
Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his
son,LenlieLecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay
BagongSilang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang
Bayan (SB) representing the Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay Jowil Red won as KB Chairman of Barangay
Matalaba, Santa Cruz.
Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as
member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality.
Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to
Red confirming his appointment and advising him further that copies of his appointment
papers would be sent to him in due time through the KB Regional Office. Red received the
telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian. In that
meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of
the municipal council until his appointment had been cleared by the Governor of
Marinduque.
Red finally received his appointment papers sometime in January 1986. But it was only on 23
April 1986, when then President Corazon C. Aquino was already in power that he forwarded
these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the
mayor to sit as sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to
LenlieLecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the
period 16 January 1986 to 30 January 1987. LenlieLecaroz signed the payroll for 1-15 January
1986 and then authorized someone else to sign all the other payrolls for the succeeding
quincenas and claim the corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his
appointment papers from President Marcos, Red was finally able to secure from the Aquino
Administration a confirmation of his appointment as KB Sectoral Representative to the
Sanggunian Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal complaints
against Mayor Francisco Lecaroz and LenlieLecaroz arising from the refusal of the two officials
to let him assume the position of KB sectoral representative.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty
on all counts of estafa through falsification of public documents.
ISSUE
(1) WON Mayor Lecaroz erred in not allowing Red to assume his position.
(2) WON Reds oath taking was valid.
HELD/RATIO
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011
(1) NO. Although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his
post after the expiration of his term in case his successor fails to qualify, it does not also say
that he is proscribed from holding over. Absent an express or implied constitutional or
statutory provision to the contrary, an officer is entitled to stay in office until his successor is
appointed or chosen and has qualified.
The law abhors a vacuum in public offices and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in
an executive or administrative office becoming, for any period of time, wholly vacant or
unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious
considerations of public policy, for the principle of holdover is specifically intended to prevent
public convenience from suffering because of a vacancy and to avoid a hiatus in the
performance of government functions.
(2) NO. Under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI
thereof, members of the then BatasangPambansa were not authorized to administer oaths. It
was only after the approval of RA No. 673314 ["An Act to Amend Section 21, Title I, Book I of
the Revised Administrative Code, and Section 41, Book I of the Adniinistrative Code of 1987,
Granting Members of Both Houses of the Congress of the Philippines the General Authority to
Administer Oaths, and for Other Purposes."] on 25 July 1989 and its subsequent publication in
a newspaper of general circulation that members of both Houses of Congress were vested for
the first time with the general authority to administer oaths. Clearly, under this circumstance,
the oath of office taken by Jowil Red before a member of the BatasangPambansa who had no
authority to administer oaths, was invalid and amounted to no oath at all.
An oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office. Only when the public officer has satisfied the prerequisite of oath
that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful
occupant. It is thus clear in the present case that since Red never qualified for the post,
petitioner LenlieLecaroz remained KB representative to the Sanggunian, albeit in a carry over
capacity, and was in every aspect a de jure officer, or at least a defacto officer entitled to
receive the salaries and all the emoluments appertaining to the position. As such, he could
not be considered an intruder and liable for encroachment of public office.
B. Disqualifications
1. General Disqualifications
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
2. Specific Disqualifications
CIVIL LIBERTIES UNION (CLU) V. EXECUTIVE SECRETARY, supra | Fernan, 1991
FACTS
Petitioner challenged EO 284 issued by Pres. Aquino, which in effect allowed Cabinet
members, their undersecretaries and assistant secretaries and other appointive officials of
the Executive Dept. to hold other positions (not more than two apart from their primary
positions) in the government albeit subject to limitations imposed therein.
The respondents in refuting the petitioners argument that the measure was violative of
Article VIII Section 13 of the Constitution, invoked Article IX-B Section 7,allowing the holding
of multiple positions by the appointive official if allowed by law or by pressing functions of
his position.
ISSUE
WON EO 284 is unconstitutional.
HELD/RATIO
YES. EO 284 is UNCONSTITUTIONAL. It allows cabinet members, undersecretaries or assistant
secretaries to hold multiple offices in direct contravention of the express mandate of Section 13,
Article VII of the Constitution. Court is alerted by the respondents to the impractical consequence
that strict construction of said provision will bring considering that Cabinet members would be
stripped of their offices held in an ex-officio capacity but SC clarifies that ex-officio posts or those
required by the primary functions of the executive official do not fall within the definition of any
other office indicated in the constitutional prohibition.
Article VIII, Section 12. The Members of the Supreme Court and of other courts established by law
shall not be designated to any agency performing quasi-judicial or administrative functions.
Exceptions to prohibition on executive officers from holding the additional positions
a. VP as member of the Cabinet
Article VII, Section 3. There shall be a Vice-Presidentwho shall have the same qualifications and
term of office and be elected with, and in the same manner, as the President. He may be removed
from office in the same manner as the President. The Vice-President may be appointed as a
Member of the Cabinet. Such appointment requires no confirmation.
Note: It is submitted, however, that although the VP may be appointed to the Cabinet, he may not
receive additional compensation in second capacity because of the absolute prohibition in Section
6, Article VII.
b. Secretary of Justice as member, Judicial Bar and Council (JBC)
Article VIII, Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private
sector.
c. Ex-officio positions
Prohibition under Sec. 13, Art. VII does not cover positions held without additional
compensation in ex-officio capacities as
provided by law and as required by the primary functions of the
concened officials office.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 21
Definition of ex-officio: from office or by virtue of office. Denotes an act done in an official
character, or as a consequence of office and without any other appointment or authority than
that conferred by the office.
Example: Secretary of Transportation and Communications is theex-officio Chairman of the
Board of the Philippine Ports Authority, and the Light Rail Transit Authority (LRTA)
- Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources FulgencioFactoran, Jr.,
Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have become moot and
academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. It has been held that
"in cases where there is no de jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate action recover the salary, fees and
other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.
DELA CRUZ V. COA | Sandoval-Guttierez, 2001
FACTS
The 20 petitioners were members of the Board of Directors of NHA.
COA issued a memorandum directing all unit heads who have issued additional compensation
to cabinet secretaries, their deputies and assistants or their representatives, in violation of
the rule on multiple positions to immediately cause the disallowance of such additional
compensation and to effect the refund thereof, pursuant to the ruling in CLU v. Exec.
Secretary declaring EO 284 unconstitutional.
NHA resident auditor issued a notice disallowing the representation allowances and per diems
of the Cabinet members who were the ex-officio members of the board of NHA and/or their
alternates.
Petitioners appealed to COA contending that (1) the decision of the SC in CLU v. Exec.
Secretary applies only to members of the Cabinet, their deputies or assistants and does not
cover other appointive officials with equivalent or lower rank than the Asst. Secretary; and (2)
NHA Directors are not Secretaries, Undersecretaries or Asst. Secretaries as they occupy a
lower position than the Asst. Secretaries.
COA ruled that the petitioners were not sitting in their own right but as representatives of
cabinet members who are constitutionally prohibited from holding any other office or
employment and receiving compensation therefor during their tenure. If the principal is
absolutely barred from holding the position and from receiving remuneration, so must the
agent be. The water cannot rise above its source.
ISSUE
WON the petitioners are entitled to the additional compensation.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 22 Ma. Jessa M. Alvarez
HELD/RATIO
YES. Sec. 7 of PD 757 creating the NHA provides that ...members of the board may have their
respective alternates... and whose acts shall be considered the acts of their principals. Petitioners
are alternates of said officers whose acts are considered the acts of their principals.
Sec. 13 Art. VII 1987 Constitution prohibits members of the cabinet to hold any other office or
employment during their tenure.
However, in CLU v. Exec. Secretary it was held that the prohibition must not, however, be
construed as applying to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of said officials' office.
The term ex-officio means 'from office; by virtue of office'. It refers to an 'authority derived
from official character merely, not expressly conferred upon the individual character, but
rather annexed to the official position.
The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional compensation
for his services in the said position. The reason is that these services are already paid
for and covered by the compensation attached to his principal office.
Since the Executive Department Secretaries, as ex-oficio members of the NHA Board,
are prohibited from receiving "extra (additional) compensation, whether it be in the
form of a per diem or an honorarium or an allowance, or some other such euphemism," it
follows that petitioners who sit as their alternates cannot likewise be entitled to receive such
compensation.
LECAROZ V. SANDIGANBAYAN, supra | Bellosillo, 1999
FACTS
Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son,
LenlieLecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay
BagongSilang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang
Bayan (SB) representing the Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay Jowil Red won as KB Chairman of Barangay
Matalaba, Santa Cruz.
Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as
member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality.
Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to
Red confirming his appointment and advising him further that copies of his appointment
papers would be sent to him in due time through the KB Regional Office. Red received the
telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral
representative of the KBs to the SB, Red attended the meeting of the Sanggunian. In that
meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of
the municipal council until his appointment had been cleared by the Governor of
Marinduque.
Red finally received his appointment papers sometime in January 1986. But it was only on 23
April 1986, when then President Corazon C. Aquino was already in power that he forwarded
these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the
mayor to sit as sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to
LenlieLecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
period 16 January 1986 to 30 January 1987. LenlieLecaroz signed the payroll for 1-15 January
1986 and then authorized someone else to sign all the other payrolls for the succeeding
quincenas and claim the corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his
appointment papers from President Marcos, Red was finally able to secure from the Aquino
Administration a confirmation of his appointment as KB Sectoral Representative to the
Sanggunian Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal complaints
against Mayor Francisco Lecaroz and LenlieLecaroz arising from the refusal of the two officials
to let him assume the position of KB sectoral representative.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty
on all counts of estafa through falsification of public documents.
ISSUE
(3) WON Mayor Lecaroz erred in not allowing Red to assume his position.
(4) WON Reds oath taking was valid.
HELD/RATIO
(3) NO. Although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his
post after the expiration of his term in case his successor fails to qualify, it does not also say
that he is proscribed from holding over. Absent an express or implied constitutional or
statutory provision to the contrary, an officer is entitled to stay in office until his successor is
appointed or chosen and has qualified.
The law abhors a vacuum in public offices and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in
an executive or administrative office becoming, for any period of time, wholly vacant or
unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious
considerations of public policy, for the principle of holdover is specifically intended to prevent
public convenience from suffering because of a vacancy and to avoid a hiatus in the
performance of government functions.
(4) NO. Under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI
thereof, members of the then BatasangPambansa were not authorized to administer oaths. It
was only after the approval of RA No. 673314 ["An Act to Amend Section 21, Title I, Book I of
the Revised Administrative Code, and Section 41, Book I of the Adniinistrative Code of 1987,
Granting Members of Both Houses of the Congress of the Philippines the General Authority to
Administer Oaths, and for Other Purposes."] on 25 July 1989 and its subsequent publication in
a newspaper of general circulation that members of both Houses of Congress were vested for
the first time with the general authority to administer oaths. Clearly, under this circumstance,
the oath of office taken by Jowil Red before a member of the BatasangPambansa who had no
authority to administer oaths, was invalid and amounted to no oath at all.
An oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office. Only when the public officer has satisfied the prerequisite of oath
that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful
occupant. It is thus clear in the present case that since Red never qualified for the post,
petitioner LenlieLecaroz remained KB representative to the Sanggunian, albeit in a carry over
capacity, and was in every aspect a de jure officer, or at least a defacto officer entitled to
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
receive the salaries and all the emoluments appertaining to the position. As such, he could
not be considered an intruder and liable for encroachment of public office.
FLORES V. DRILON, supra | Bellosillo, 1993
FACTS
Petitioners challenge the constitutionality of RA 7227: Bases Conversion and Development Act
of 1992 under which Mayor Richard Gordon of Olongapo City was appointed as Chairman and
Chief Executive of SBMA.
sec. 13 par. (d) contains a proviso saying that for the 1st year of its effectivity, the mayor of
Olongapo shall be appointed as chair and chief exec of SBMA. Petitioners claim this to be
violative of a) sec. 7 Art. IX-B Consti (no elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure) since mayor of
Olongapo is an elective office, b) sec 16 Art VII Consti (that the Pres shall appoint all other
ofcrs of govt whose appointments are not provided by law) since Congress through the
proviso appointed Gordon.
ISSUE
WON the appointment is unconstitutional.
HELD/RATIO
YES. The proviso directs the president to appoint an elective e official as chair of SBMA which is
exactly what the consti proscription seeks to prevent
sec.94 LGC permits the appointment of an elective official to another post if so allowed by law
or by primary functions of his office. However, no legislative act can prevail over the
fundamental law of the land.
it is argued that the SBMA posts are ex officio to the position of the mayor of Olongapo and is
thus an exception to the proscription. The argument is based on a wrong premise since
Congress did not contemplate the SBMA posts as ex officio or automatically attached to the
Office of the Mayor of Olongapo w/o need of appointment. The phrase shall be appointed
shows the intent to make the SBMA posts appointive.
the proviso is a legislative encroachment on the power of the president to appoint as it
already specified the person who is to occupy the position and the president has no choice
under the law but to appoint the mayor of olongapo.
being an elective official, Gordon is not eligible for appointment to the position of SBMA
chair. His appointment pursuant to a le3gislation contravening the consti cannot be sustained.
However, he remains to be the mayor of Olongapo and his acts as SBMA Chair are not
necessarily void since he may be deemed as 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 3rd 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 appointing body, or by reason of some
defect or irregularity in its exercise, or under color of an election or appointment by or
pursuant to a public unconstitutional law before the same is adjudged to be such.
in accordance w/ the ruling in CLU emoluments received by Gordon pursuant to his
appointment may be retained by him.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 23
ABETO V. GARCESA | Davide, 1995
FACTS
OCA received a complaint from Oscar Abeto charging Manuel Garcesa (stenographic reporter
in RTC Bacolod) with having misrepresented himself as a full-fledged lawyer and having acted
as one of the representatives of complainant in labor cases filed with the NLRC.
Garcesa admits having assisted the complainants but denies that he misrepresented himself
as a lawyer since he frankly informed complainants that he is only a court employee and that
he is only assisting them because at that time, no lawyer dared to assist the complainants in
their labor cases.
Deputy Court Administrator submitted a memorandum recommending that the complaint be
dismissed but that Garcesa be advised of the Civil Service Rules and the Courts memorandum
circular prohibiting govt employees from engaging in any private business, vocation, or
profession w/o permission from this Court .
SC directed OCA to reevaluate the case.
Deputy Court Administrator concluded that Sec. 12, Rule XVIII, Rev Civil Service Rules provides
that no officer or employee shall engage directly in any private business, vocation, or
profession ...that this prohibition will be absolute in the case of those officers or employees
whose duties require that their entire time be at the disposal of the govt. Also,
Administrative Circular No. 5 states that the entire time of judiciary officials and employees
must be devoted to the govt service to insure efficient and speedy administration of justice
considering the express prohibition in the Rules of Court and the nature of their work.
ISSUE
WON Memorandum No. 17 issued by Office of the President (as to moonlighting provided there is a
written permission from head) is applicable to employees of the courts.
HELD/RATIO
NO. In Administrative Circular No. 5 dated 4 October 1988, the SC said that the provisions of
Memorandum Circular No. 17 of the Executive Department are not applicable to officials or
employees of the courts considering the express prohibition in the Rules of Court and the
nature of their work which requires them to serve with the highest degree of efficiency and
responsibility, in order to maintain public confidence in the Judiciary. This prohibition is directed
against "moonlighting," which amounts to malfeasance in office (Biyaheros Mart Livelihood
Association, Inc. vs. Cabusao, 232 SCRA 707 [1994]).
RABE V. FLORES | Per Curiam, 1997
FACTS
Narita Rabe filed an administrative complaint for Conduct Unbecoming a Government
Employee, Acts Prejudicial to the Interest of the Service and Abuse of Authority against Delsa
Flores (interpreter III, RTC, Panabo, Davao). The specific act complained of is that Flores
claimed a stall at the extension of the Public Market when she is not a member of the
association and that she took the law into her own hands when she destroyed a stall and
brought it to the police station.
A Court resolution absolved Flores but required her to explain why she should not be
administratively dealt with for (1) being certified to be still connected w/ the Municipal
Government of Panabo on 3 Jun 1991 notwithstanding her assumption of her post in the RTC
as early as 16 May 1991; (2) not reporting her business interest in her sworn statement of
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 24 Ma. Jessa M. Alvarez 2003-29275
Assets , Liabilities and Net Worth, Disclosure of Business Interests and Financial Connections
for the years 1991-1994; (3) not divesting herself of her interest in said business; and (4) why
she indicated in her DTRs for August 1995 that she worked when her Contract of Lease with
the Municipal Government for the market stall states that she has to personally conduct
business and be present, otherwise the same would be cancelled.
In response, Flores avers that (1) the certification of the Municipal Treasurer is inaccurate.
Further, she assumed her job in compliance with a directive and that even prior to said date,
she already reported to the court in order to familiarize herself with the scope of her duties.
She also admitted to receiving salary from the municipality notwithstanding her transfer to
the Judiciary, but submitted that it was her desire to refund the amount but received her
salary only in the month of June when it is the time of enrolment and she needed the money
to defray registration expenses; (2) she did not divulge any business interest because she was
never engaged in business during said period although she had a stall in the market; and (3)
her Daily Time Record indicated that she held office in August because in truth and in fact she
did hold office on those days because her contract of lease was never implemented as it was
a subject of a civil case.
OCA found Flores guilty of dishonesty and failure to report her business dismissal and
recommended that the penalty of dismissal be imposed on her.
ISSUE
WON Flores should be dismissed.
HELD/RATIO
YES. Under the Omnibus Rules Implementing Book V of EO No. 292 known as the "Administrative
Code of 1987" and other pertinent Civil Service Laws, the penalty for dishonesty is dismissal, even
for the first offense.
Accordingly, for respondent's dishonesty in receiving and keeping what she was not lawfully
entitled to, this Court has the duty to impose on her the penalty prescribed by law: dismissal.
No position exacts a greater demand for moral righteousness and uprightness from an
individual than in the judiciary. Personnel in the judiciary should conduct themselves in such a
manner as to be beyond reproach and suspicion, and free from any appearance of
impropriety in their personal behavior, not only in the discharge of their official duties but
also in their everyday life. They are strictly mandated to maintain good moral character at all
times and to observe irreproachable behavior so as not to outrage public decency.
Failure of respondent to disclose her business interest which she herself admitted is
inexcusable and is a clear violation of Republic Act No. 6713. The requirement for public
officers, in general, to divest themselves of business interests upon assumption of a public
office is prompted by the need to avoid conflict of interests. In the absence of any showing
that a business interest will result in a conflict of interest, divestment of the same is
unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a conflict
of interest because an Interpreter III of the Regional Trial Court has a stall in the market. A
court, generally, is not engaged in the regulation of public market, nor does it concern itself
with the activities thereof. While respondent may not be compelled to divest herself of her
business interest, she had the legal obligation of divulging it.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
PUBLIC INTEREST CENTER, INC. V. ELMA | Chico-Nazario, 2006
FACTS
Magdangal Elma was appointed and took his oath of office as chairman of the PCGG. During
his tenure as PCGG Chair, Elma was appointed Chief Presidential Legal Counsel. He took his
oath of office the following day but he waived any remuneration that he may receive as CPLC.
Petitioners filed an action for certiorari to declare null and void Elmas concurrent
appointments for being contrary to Sec. 13 Art. VII and Sec. 7, par. 2 Art IX-B of the 1987
Constitution. Petitioners also maintained that Elma was holding incompatible offices.
Elma claims that the strict prohibition against holding multiple positions in Sec. 13 Art. VII
applies only to heads of executive departments, their Undersecretaries and Asst. Secretaries.
That it is Sec. 7, par. 2 Art IX-B of the 1987 Const. that should be applied in their case and that
this provision allows a public officer to hold multiple positions if (1) the law allows the
concurrent appointment of the official and (2) the primary functions of either position allows
such concurrent appointment. And since there is a close relation between the 2 positions,
there is no incompatibility between them and the primary functions of each position would
allow concurrent appointments to both positions.
ISSUE
WON PCGG Chair may concurrently hold the position of CPLC.
HELD/RATIO
NO. The general rule contained in Article IX-B of the 1987 Constitution permits an appointive
official to hold more than one office only if allowed by law or by the primary functions of his
position. In the case of Quimson v. Ozaeta, this Court ruled that, there is no legal objection to a
government official occupying two government offices and performing the functions of both as
long as there is no incompatibility. The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green - whether one office is subordinate to the
other, in the sense that one office has the right to interfere with the other.
Section 13, Article VII does not sanction this dual appointment. Appointment to the position
of PCGG Chairman is not required by the primary functions of the CPLC, and vice versa. The
primary functions of the PCGG Chairman involve the recovery of ill-gotten wealth
accumulated by former President Ferdinand E. Marcos, his family and associates, the
investigation of graft and corruption cases assigned to him by the President, and the adoption
of measures to prevent the occurrence of corruption. On the other hand, the primary
functions of the CPLC encompass a different matter, that is, the review and/or drafting of
legal orders referred to him by the President. And while respondent Elma did not receive
additional compensation in connection with his position as CPLC, he did not act as either CPLC
or PGCC Chairman in an ex-officio capacity. The fact that a separate appointment had to be
made for respondent Elma to qualify as CPLC negates the premise that he is acting in an ex-
officio capacity.
DEBULGADO V. CSC | Feliciano, 1994
FACTS
Debulgado is the incumbent mayor of San Carlos City, Negros Occidental. He appointed his
wife Victoria as General Services Officer, that is, head of the Office of General Services of the
city of San Carlos.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Victoria was one of the 3 employees who were considered for the position. Before such
promotion, she had been in the service of the city government for about 32 yrs. Through the
years she rose from the ranks.
CSC received a letter from Congressman Tranquilino Carmona calling attention to the
promotional appointment issued by mayor in favor of his wife. CSC later disapproved the
promotion of Victoria on the ground that it violated the statutory prohibition against nepotic
appointments.
Petitioners moved for reconsideration contending that the prohibition does not apply to
Victoria and that her right to due process was violated by unilaterally revoking her
appointment. MFR was denied.
Petitioners now contend that (1) Victoria can no longer be removed without giving her an
opportunity to be heard and to answer; (2) Victoria was the most qualified among the 3
candidates; (3) choosing Victoria was concurred in by the SangguniangPanglungsod; and (4)
the prohibition applies only to original appointments and not to promotional appointments.
ISSUE
WONpromotional appointment is covered by the legal prohibition against nepotism.
HELD/RATIO
YES. The prohibition applies to all appointments. The prohibition was cast in comprehensive and
unqualified terms. Firstly, it explicitly covers "all appointments", without seeking to make any
distinction between differing kinds or types of appointments. Secondly, Section 59 of Book 5, EO
292 covers all appointments to the national, provincial, city and municipal government, as well as
any branch or instrumentality thereof and all government owned or controlled corporations.
Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short list.
Both an original appointment and a promotion are particular species of personnel action. The
original appointment of a civil service employee and all subsequent personnel actions
undertaken by or in respect of that employee such as promotion, transfer, reinstatement,
reemployment, etc., must comply with the Implementing Rules including, of course, the
prohibition against nepotism in Rule XVIII.
To limit the thrust of the prohibition against nepotism to the appointment issued at the time
of initial entry into the government service, and to insulate from that prohibition
appointments subsequently issued when personnel actions are thereafter taken in respect of
the same employee, would be basically to render that prohibition, in the words of Laurel V,
etc. v. Civil Service Commission, "meaningless and toothless."
The purpose is to ensure that all appointments and other personnel actions in the civil service
should be based on merit and fitness and should never depend on how close or intimate an
appointee is to the appointing power.
The subsequent marriage of one to the other of petitioners did not retroactively convert the
original appointment of petitioner Victoria into a prohibited nepotic one. It is the promotional
appointment issued by petitioner Mayor to petitioner Victoria in 1 October 1982 that is at
stake.
Re violation of due process rights: The Commission, in approving or disapproving an
appointment, only examines the conformity of the appointment with applicable provisions of
law and whether the appointee possesses all the minimum qualifications and none of the
disqualifications. The approval issued by Director Escobia did not, as it could not, cure the
intrinsic vice of that appointment.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 25
CSC V. DACOYCOY | Pardo, 1999
FACTS
George Suan, a Citizens crime Watch VP filed with the CSC a complaint against Pedro
Dacoycoy for habitual drunkenness, misconduct and nepotism.
CSC found no substantial evidence to support the charge of habitual drunkenness and
misconduct but CSC found Dacoycoy guilty of nepotism on 2 counts as a result of the
appointment of his 2 sons, Rito and Ped, as driver and utility worker. They were under his
immediate supervision and control as the Vocational School Administrator, Balicuatro College
of Arts and Trades. CSC imposed the penalty of dismissal.
Dacoycoy filed MFR which the CSC denied. Dacoycoy filed certiorari w/ CA.
CA reversed the CSC ruling that Dacoycoy did not appoint or recommend his 2 sons, hence,
was not guilty of nepotism. It is the person who recommends or appoints who should be
sanctioned, as it is he who performs the prohibited act. Hence, this appeal.
ISSUE
WON Dacoycoy is covered by the ban on nepotism.
RATIO:
YES. Under the definition of nepotism in Sec. 59 EO 292, one is guilty of nepotism if any
appointment is issued in favour of a relative within the 3rd civil degree of consanguinity or affinity of
any of the following: (a) appointing or (b) recommending authority, or of the (c) chief of the bureau
or office, or of the (d) persons exercising immediate supervision over the appointee.
Clearly, there are four situations covered. In the last two mentioned situations, it is
immaterial who the appointing or recommending authority is. To constitute a violation of the
law, it suffices that an appointment is extended or issued in favor of a relative within the
third civil degree of consanguinity or affinity of the chief of the bureau or office, or the
person exercising immediate supervision over the appointee.
It is true that he did not appoint or recommend his two sons to the positions of driver and
utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag,
Head of the Vocational Department of the BCAT, who recommended the appointment of Rito.
Mr.Daclag's authority to recommend the appointment of first level positions such as
watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for
short durations of three to six months was recommended by respondent Dacoycoy and
approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions
shall be under Mr.Daclags immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II,
Director III, DECS Regional Office VIII, Palo, Leyte, appointed RitoDacoycoy driver of the
school. On January 3, 1993, Mr.Daclag also appointed PedDacoycoy casual utility worker.
However, it was respondent Dacoycoy who certified that funds are available for the
proposed appointment of RitoDacoycoy and even rated his performance as very
satisfactory. On the other hand, his son Ped stated in his position description form that his
father was his next higher supervisor. The circumvention of the ban on nepotism is quite
obvious. Unquestionably, Mr.Daclag was a subordinate of respondent Pedro O. Dacoycoy,
who was the school administrator. He authorized Mr.Daclag to recommend the appointment
of first level employees under his immediate supervision. Then Mr.Daclag recommended the
appointment of respondents two sons and placed them under respondents immediate
supervision serving as driver and utility worker of the school. Both positions are career
positions. To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the
PROF. GISELLA N. DIZON-REYES
 26 Ma. Jessa M. Alvarez
appointing or recommending authority in the appointment of his two sons. Clearly, he is
guilty of nepotism.
C. Acquisition of right or title to office
1. Appointment
PLM V. IAC | Guttierez, 1985
FACTS
Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the
government service for twenty-five (25) years. Until May 20, 1973, he was officially connected
with the Philippine College of Commerce, a state-owned educational institution as its Vice-
President for Academic Affairs. Board of Trustees of the College resolved to abolish the
position of Vice-President for Academic Affairs. Dr. Esteban was given the option to continue
teaching at the Philippine College of Commerce which he accepted until his transfer to the
PamantasanngLungsodngMaynila, upon the invitation of its president, Dr. Consuelo Blanco.
Dr. Esteban was initially extended an ad interim temporary appointment as VP for Admin by
Dr. Blanco. Dr. Esteban received from the Secretary of the Pamantasan a Notification of
Renewal of Temporary Appointment. His temporary appointment was renewed for several
times.
Later however, Dr. Esteban discovered that he was not included in the list of employees
recommended for permanent appointments. Worse,Dr. Blanco, issued a memorandum
circular terminating Dr. Esteban's appointment as VP for Administration. His appointment
dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be
confirmed by the Pamantasan Board of Regents.
Civil Service Commission ruled that "The temporary nature of the appointment issued to Dr.
Esteban as Vice President for Administration is conceded. Such being the case, his services
may be terminated at any time with or without cause.
Dr. Esteban filed a motion for the reconsideration of that ruling. The Civil Service Commission
ruled that he was fully qualified for the position of Vice-President for Administration and
certified him "for appointment therein under permanent status."
The Pamantasan, in turn, asked for the reconsideration of that ruling. The Commission again
modified its earlier resolution in his case. It ruled that Dr. Consuelo Blanco, had no authority
to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as
only the Board of Regents was empowered to do so. However, it ruled that, as a de facto
officer, he was entitled to be paid the salary of that position.
The Merits System Board was created and it required the Pamantasan to submit the complete
records of Dr. Estebans appointment and termination, which the Pamantasan failed to
produce.
For such failure, the CSC ruled that there is truth to the claim of Dr. Esteban that his
appointment was permanent. CSC further denied the Pamantasans MR.
Pamantasan filed a petition for certiorari with the CFI. CFI reversed CSC saying that the
appointment of Dr. Esteban was invalid.
IAM resversed the CFI declaring Dr. Estebans appointment as permanent.
ISSUE
WON, in view of his ad interim appointment, he holds the position in a permanent capacity as to
guarantee as security of tenure.
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HELD/RATIO
YES. PLM mistakenly understood the meaning of ad interim which it repeated gave Dr. Esteban. The
term is defined by Black to mean in the meantime or for the time being. Thus, an officer ad
interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1
978). But such is not the meaning nor the use intended in the context of Philippine law. In referring
to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given
to him. Rather, it is used to denote the manner in which said appointments were made, that is,
done by the President of the Pamantasan in the meantime, while the Board of Regents, which is
originally vested by the University Charter with the power of appointment, is unable to act. Thus,
we held in Summers v. Ozaeta (81 Phil. 760): ... an ad interim appointment is one made in
pursuance of paragraph (4), section 10, Article VII of the Constitution, which provides that the
President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.' lt is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on Appointments does not alter
its permanent character. An ad interim appointment is disapproved certainly for a reason other
than that its provisional period has expired. Said appointment is of course distinguishable from an
'acting' appointment which is merely temporary, good until another permanent appointment is
issued.
Not only is the appointment in question an ad interim appointment, but the same is also a
confirmed ad interim appointment. In its Resolution No. 485 (transcript of which PLM failed
to produce in court), the Pamantasan Board of Regents verified respondent Esteban's
appointment without condition nor limitation as to tenure. As of that moment, it became a
regular and permanent appointment.
In other words, if the Board of Regents is in session, the Pamantasan President merely
nominates while the Board issues the appointment. But when the Board is not in session, the
President is authorized to issue ad interim appointments. Such appointments are permanent
but their terms are only until the Board disapproves them. If confirmed, the appointee's term
is converted into the regular term inherent in the position.
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. lt is a
prerogative of the appointing power that may be availed of without liability, provided
however, that it is exercised in good faith for the advancement of the employer's interest and
not for the purpose of defeating or circumventing the rights of the employees under special
laws or under valid agreements, and provided further, that such prerogatives are not
exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or
spite (Government Service and Insurance System v. Ayroso 96 SCRA 213).
The general rule is that the power of appointment must remain unhampered by judicial
intervention. However, when the law is violated or when there is grave abuse of discretion,
we have to step in.
LUEGO V. CSC | Cruz, 1986
FACTS
FelimonLuego was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by
Mayor FlorentinoSolon. The appointment was described as "permanent" but the Civil Service
Commission approved it as "temporary," subject to the final action taken in the protest filed
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
by the FeliculaTuozo and another employee, and provided "there (was) no pending
administrative case against the appointee, no pending protest against the appointment nor
any decision by competent authority that will adversely affect the approval of the
appointment."
The CSC found the private respondent (Tuozo) better qualified than the petitioner for the
contested position and, accordingly, directed "that FeliculaTuozo be appointed to the position
of Administrative Officer II in the Administrative Division, Cebu City, in place of FelimonLuego
whose appointment as Administrative Officer II is hereby revoked." The private respondent
was so appointed by the new mayor, Mayor Ronald Duterte.
ISSUE
WON Civil Service Commission is authorized to disapprove a permanent appointment on the
ground that another person is better qualified than the appointee and, on the basis of this finding,
ordering his replacement by the latter.
HELD/RATIO
NO. The appointment of the petitioner was not temporary but permanent and was therefore
protected by Constitution. The appointing authority indicated that it was permanent, as he had the
right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it
temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the
appointment, which was clearly described as "Permanent" in the space provided for in Civil
Service Form No. 33. What was temporary was the approval of the appointment, not the
appointment itself. And what made the approval temporary was the fact that it was made to
depend on the condition specified therein and on the verification of the qualifications of the
appointee to the position.
The Civil Service Commission is not empowered to determine the kind or nature of the
appointment extended by the appointing officer, its authority being limited to approving or
reviewing the appointment in the light of the requirements of the Civil Service Law. When the
appointee is qualified and all the other legal requirements are satisfied, the Commission has
no choice but to attest to the appointment in accordance with the Civil Service Laws.
Appointment is an essentially discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition being that the appointee
should possess the qualifications required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who should have been preferred.
This is a political question involving considerations of wisdom which only the appointing
authority can decide.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of
the Civil Service Decree because it says the Commission has the power to "approve" and
"disapprove" appointments. However, a full reading of the provision will make it clear that all
the Commission is actually allowed to do is check whether or not the appointee possesses the
appropriate civil service eligibility or the required qualifications. If he does, his appointment is
approved; if not, it is disapproved.
CSC had no authority to revoke the said appointment simply because it believed that the
private respondent was better qualified for that would have constituted an encroachment on
the discretion vested solely in the city mayor.
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REGIS V. OSMEA | Davide, 1991
FACTS
Deogracias Regis was appointed by then Cebu City Mayor, Ramon Duterte, as driver of the
Cebu Police Department.
Regis was issued another appointment by then Cebu City Mayor Carlos J. Cuizon as 'Driver,
Civilian Employee' of the Cebu Police Department
Later, he was removed from his position in the Cebu Police Department without prior
investigation or hearing, the termination having been made in a letter of dismissal saying that
there was no more need for his services.
Regis is a civil service eligible, having passed the patrolman and/or detective (qualified) civil
service exam.
After his removal, his former position was filled up by the mayor with a non-civil service
eligible.
The lower court dismissed Regis petition on the ground that petitioner's questioned
appointment was temporary in nature and, therefore, terminable at the pleasure of the
appointing power.
Regis now alleges that his said removal was not for cause, and it was done without due
process in violation of Section 32 of R.A. No. 2260 which provides that "no officer or
employee in the civil service shall be removed or suspended except for cause provided by law
and after due process."
ISSUE
WON Regis appointment was temporary thus, he is terminable at the pleasure of the appointing
power.
HELD/RATIO
NO. Regis appointment was PROVISIONAL in nature. Provisional appointments are governed by
paragraph (c) of Section 24 of R.A. No. 2260 while temporary appointments are covered by
paragraph (d) of said Section:
(c) Provisional appointments A provisional appointment may be issued upon prior authorization
of the Commissioner in accordance with the provisions of the Act and the rules and standards
promulgated in pursuance thereto to a person who has not qualified in an appropriate examination
but who otherwise meets the requirements for appointment to a regular position in the
competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest
of the service and there is no appropriate register of eligibles at the time of appointment.
(d) Temporary appointment. A person may receive a temporary appointment to a position
needed only for a limited period not exceeding six months, provided that a preference in filling
such position be given to persons on appropriate eligible lists.
TEMPORARY APPOINTMENT is designed to fill "a position needed only for a limited period not
exceeding six months, PROVISIONAL APPOINTMENT is intended for the contingency that "a
vacancy occurs and the filling thereof is necessary in the interest of the service and there is no
appropriate register of eligibles at the time of appointment." The reason for extending a
provisional appointment is not because there is an occasional work or job to be done which is
expected to be finished in not more than six months but because the interest of the service
requires that certain work be done or functions be performed by a regular employee, only
that there is no one with appropriate eligibility, who can be appointed to do it, hence any
other eligible may be appointed to perform such work or functions in the meanwhile that a
suitable eligible does not qualify for the position.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 28 Ma. Jessa M. Alvarez
This is clearly implied by the mandate of the provision that a provisional appointment may be
extended only to "a person who has not qualified in an appropriate examination but who
otherwise meets the requirements for appointment to a regular position in the competitive
service," meaning one who must anyway be a civil service eligible. On the other hand, again,
in the case of a temporary appointment, all that the law enjoins is that "preference in filling
such position be given to persons on appropriate eligible lists." And merely giving preference,
of course, presupposes that even a non-eligible may be appointed. As a matter of fact, under
this provision, even if the appointee has the required civil service eligibility, his appointment
is still temporary, simply because such is the nature of the work to be done. The decisions
cited by appellants are not in point. They all refer to temporary appointments as such. None
of them involves a provisional appointment like the one herein in question.
That there was "no more need" for his service was not a valid and lawful cause and even if it
were so, it could not be availed of in this case since, as admitted by the parties, immediately
after the ouster a non-civil service eligible was appointed to replace petitioner and more
driver positions were included in the succeeding budget of the City of Cebu. These facts
negated the pretended basis for the dismissal. The real hidden cause was not that service of
the nature and character rendered by petitioner was no longer needed , but that petitioner
had become unacceptable to the appointing authority. Petitioner testified that his removal
was politically motivated, he was suspected of supporting the faction of Mr.Durano, a political
enemy of respondent City Mayor. We are not inclined to give full faith and credit to this
testimony considering that this point was not even alleged in the petition.
We agree, however, with the court below that the patrolman-detective civil service eligibility
of petitioner "is not intended for or appropriate to the position of driver; hence, it did not
convert his temporary [should be, correctly, provisional] appointment of driver to a
permanent one.
ACHACOSO V. MACARAIG | Cruz, 1991
FACTS
Tomas D. Achacoso was appointed Administrator of the POEA. In compliance with a request
addressed by the President of the Philippines to "all Department Heads, Undersecretaries,
Assistant Secretaries, Bureau Heads," and other government officials, he filed a courtesy
resignation. This was accepted by the President.
The Secretary of Labor requested him to turn over his office to the Deputy Administrator as
officer-in-charge. He protested his replacement and declared he was not surrendering his
office because his resignation was not voluntary but filed only in obedience to the President's
directive.
Respondent Jose N. Sarmiento was appointed Administrator of the POEA.
Achacosofiled a motion for reconsideration, but this was denied.
He now invokes security of tenure against his claimed removal without legal cause. The
respondents assert he is not entitled to the guaranty because he is not a career official.
ISSUE
WON Achacoso is a member of the Career Service of the Civil Service and so enjoys security of
tenure.
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HELD/RATIO
NO. Rules embodied in Part III, Article IV, Integrated Reorganization Plan as approved by P.D. 1 and
amended by P.D. 336 and P.D. 337, on the career executive service:
xxx c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the
President from a list of career executive eligibles recommended by the Board. Such appointments
shall be made on the basis of rank; provided that appointments to the higher ranks which qualify
the incumbents to assignments as undersecretary and heads of the bureaus and offices and
equivalent positions shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a Career Executive
Service eligible, provided that such appointee shall subsequently take the required Career
Executive Service examination and that he shall not be promoted to a higher class until he qualifies
in such examination.xxx
Petitioner was not a career executive service eligible at the time of his appointment, he came
under the exception to the above rule and so was subject to the provision that he "shall
subsequently take the required Career Executive Service examination and that he shall not be
promoted to a higher rank until he qualifies in such examination." Not having taken that
examination, he could not claim that his appointment was permanent and guaranteed him
security of tenure in his position.
A permanent appointment can be issued only "to a person who meets all the requirements
for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a
moment's notice," conformably to established jurisprudence.
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications.
Such right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as permanent even if it may be so
designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of
official functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee. The person named in an acting capacity accepts the
position under the condition that he shall surrender the office once he is called upon to do so
by the appointing authority. His term is understood at the outset as without any fixity and
enduring at the pleasure of the appointing authority. When required to relinquish his office,
he cannot complain that he is being removed in violation of his security of tenure because
removal imports the separation of the incumbent before the expiration of his term. This is
allowed by the Constitution only when it is for cause as provided by law. The acting appointee
is separated precisely because his term has expired. Expiration of the term is not covered by
the constitutional provision on security of tenure. Also, the petitioner could have been validly
replaced even if he had not filed his courtesy resignation.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
MAROHOMBSAR V. ALONTO | Guttierez, 1991
FACTS
Dr. Emily M. Marohombsar was designated as OIC of the Office of the Vice-Chancellor for
Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as VP for
External Studies.
The Office of the VP for External Studies was merged with the OVCAA. Marohombsar was
appointed acting VCAA on the same day. The Board of Regents approved her appointment.
Ahmad E. Alonto, MSU President, wrote Marohombsar informing her that he has decided to
tap her talent for the MSU system as VP for Academic Affairs. Marohombsar answered that
she cannot accept since she has already started several projects in the OVCAA.
Alonto designatedMacacuna Moslem as VCAA but the latter did not accept. Alonto then
issued Special Order No. 158-P designating Professor Corazon Batara as OIC of the OVCAA
effectively replacing Marohombsar.
Court issued a TRO directing the respondents to cease and desist from enforcing and/or
implementing Special Order No. 158-P and from interfering and/or preventing the petitioner
from performing her duties as VCAA.
Alonto submitted the SO for approval to the MSU BOR and so Marahombsar filed a motion to
cite him in contempt for violating the TRO.
Marohombsar claim: her appointment was permanent, hence she can only be removed after
a hearing and for cause.
Alontosdefense: (1) Marohombsars appointment was only in an acting capacity and thus
may be removed at will and (2) Marahombars permanent item is Professor IV, thus his
designation as Acting VCAA cannot be deemed as a permanent appointment as that would
create an anomalous situation where a person holds two permanent positions.
ISSUE
(1) WON Marohombsar, who was appointed ACTING VCAA of MSU by Alonto may be removed
from office even without cause.
(2) WON the fact that the permanent item of Marahombar is Professor IV militates against his
claimed permanent appointment as Acting VCAA.
HELD/RATIO
(1) NO. A bona fide appointment in an acting capacity is essentially temporary and revocable in
character and the holder of such appointment may be removed anytime even without
hearing or cause. There are circumstances, however, which rule against the routine or blind
application of the principle which governs acting appointments to this case. A public officer
appointed in an acting capacity cannot claim that the appointment shall in time ripen into a
permanent one. However, neither can the appointing power use the principle of temporary
appointments to evade or avoid the security of tenure principle in the Constitution and the
Civil Service Law.
In this case, the intent to make Marohombsar serve at the pleasure of Alonto is obvious.
When the Office of the VP for External Studies was merged with the OVCAA and
Marohombsar was appointed as Acting VCAA, the effectwas to abolish her permanent office
and give her a temporary appointment in the supposedly new office which replaced or
absorbed the former office. Another result was the loss of her permanent status.
There are reasons which indicate that these maneuverings by Alonto cannot be characterized
as bona fide. According the Code of Governance of MSU, the power to designate is vested in
the MSU President. The designation must be less than one year. It must be reported to the
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Board of Regents at the next regular meeting. After the meeting, another designation must be
issued if no permanent appointment was made. The earlier designation becomes void as the
Board is expected to fill the item permanently, not merely leaving it temporarily occupied. On
the other hand, the power to appoint is vested in the Board of Regents. If the President
merely designates, the Board of Regents does not confirm the designation. Since it is only for
the information of the Board, the President's action should be merely "noted."
When the Board of Regents confirmed the appointment of Marohombsar, it was acting on an
ad interim appointment effected by the President. If it was a mere designation, it needs no
confirmation. An ad interim appointment is one made during the time when the appointing
or confirming body is not in session and there is an existing clear and present urgency caused
by an impending obstruction or paralyzation of the functions assigned to the office if no
immediate appointment is made.
The intent to convert permanent items into temporary ones is also apparent when practically
all top officers below the President were converted into positions where the occupants serve
at the pleasure of the President and presumably, the Board of Regents.
(2) NO. In Tapales v. President and Board of Regents of the University of the Philippines, an
appointment as Professor is needed for salary rating purposes but does not detract from the
permanent nature of the administrative
DISPOSITIVE
The petitioner shall remain as the lawful occupant in a permanent capacity of the position of Vice-
Chancellor for Academic Affairs of MSU Marawi.
SINON V. CSC | Campos, 1992
FACTS
Prior to the reorganization of the then Minister of Agriculture and Food (the "MAF"), Juana
Banan was the incumbent Municipal Agricultural Officer (MAO) of Cagayan, while EliseoSinon
occupied the position of Fisheries Extension Specialist (FES) II in the Bureau of Fisheries and
Aquatic Resources (BFAR) in the same region.
However, the reorganization of the MAF into the Department of Agriculture (the "DA"), called
for the evaluation of employees by the Placement Committee which included Sinon but
excluded Banan.Banan filed an appeal with the DARAB for re-evaluation of the qualification.
In the re-evaluation of the DARAB, Sinon was displaced by Banan and this same resolution
was duly approved by the Secretary of the Department of Agriculture.
However, Sinon received an appointment as MAO for Cagayan as approved by Regional
Director Gumersindo D. Lasam on the basis of the first evaluation.Thus, Sinon filed an appeal
with the CSC as to the DARAB re-evaluation. The CSC then set aside the DARAB re-evaluation.
Banan filed an MR: to allow the findings of the Placement Committee to supersede the
DARAB resolution would be tantamount to giving precedence to the Placement Committee.
DARAB granted Banan's MR.
Sinon filed an MR.
CSC denied: The Placement Committee's function is recommendatory in nature. The decision
of the agency RAB has the imprimatur of the Secretary of that agency and is therefore
controlling in matters of and is therefore controlling in matters of appointment.
ISSUE
Which agency has the last say with respect to appointments? DARAB or Placement Commission?
PROF. GISELLA N. DIZON-REYES
 30 Ma. Jessa M. Alvarez
HELD/RATIO
DARAB. The Office of the President created the agency RAB to address the problem of the
employees affected by the reorganizations.The foregoing legal measures spell out the remedies of
aggrieved parties which make it impossible to give the status of finality to any appointment until all
protests or oppositions are duly heard.
Under R.A. 6656 the Placement Committee was created to assist the appointing authority in
the judicious selection and placement of personnel. To "assist" mean to lend an aid to, or to
contribute effort in the complete accomplishment of an ultimate purpose intended to be
effected by those engaged. In contrast, to "recommend" is to present one's advice or choice
as having one's approval or to represent or urge as advisable or expedient. It involves the Idea
that another has the final decision.
Hence, for as long as the re-evaluation of the qualification filed by Banan was pending, Sinon
cannot claim that he had been issued with a "complete" appointment. Neither is there any
point in asserting that his appointment had "cured" whatever changes was subsequently
recommended by the DARAB.
DISPOSITIVE
Petition is DENIED.
SEPARATE OPINION
GRIO-AQUINO, J., concurring:
In the result only for we ruled in Bustamante vs. Executive Secretary 186 SCRA 109 and Pari-an vs.
Civil Service Commission, 202 SCRA 772 that the reorganization of the Department of Agriculture
was null and void.
PROVINCE OF CAMARINES SUR V. CA | Kapunan, 1995
FACTS
Private respondent Tito Dato was appointed as Private Agent by then governor of Camarines
Sur, Apolonio Maleniza. He was promoted and was appointed Assistant Provincial warden by
then Governor Felix Alfelor, Sr. He had no civil service eligibility and could not be legally
extended a permanent appointment. Hence, only a temporary appointment which was
renewed annually.
Governor Alfelor approved Dato's status from temporary to permanent upon the latter's
representation that he passed the civil service examination for supervising security guards.
This was not favorably acted upon by the CSC reasoning that Tito Dato did not possess the
necessary civil service eligibility.
No other appointment was extended to him.
Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were filed
against him and a prison guard for allegedly conniving and/or consenting to evasion of
sentence of some detention prisoners who escaped from confinement.
On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B.
Rama, head of the Camarines Sur Unit of the Civil Service Commission, wrote the Governor of
Camarines Sur a letter informing him that the status of private respondent Tito Dato has been
changed from temporary to permanent, the latter having passed the examination for
Supervising Security Guard. The change of status was to be made retroactive to June 11,
1974, the date of release of said examination.
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SangguniangPanlalawigan, suppressed the appropriation for the position of Assistant
Provincial Warden and deleted Dato's name from the plantilla.
Dato was subsequently acquitted of the charges against him. Consequently, he requested the
Governor for reinstatement and backwages which was not heeded and so he filed an action
for mandamus before the RTC.
RTC: in favor of Dato and ordered that he be paid backwages.
CA: affirmed RTC.
Province of CamSur arguments: (1) the CSC approved as only temporary pending validation of
the results Datos examination for supervising security guard and (2) his subsequent
qualification for civil service eligibility did not ipso facto convert his temporary status to that
of permanent.
Datos argument: his appointment is permanent.
ISSUE
WON Dato was a permanent employee of the Province of Camarines Sur at the time he was
suspended.
HELD/RATIO
NO. The lack of a civil service eligibility made his appointment temporary and without a fixed and
definite term and is dependent entirely upon the pleasure of the appointing power. The fact that
Dato obtained civil service eligibility later on is of no moment as his having passed the supervising
security guard examination, did not ipso facto convert his temporary appointment into a
permanent one. What is required is a new appointment since a permanent appointment is not a
continuation of the temporary appointment these are two distinct acts of the appointing
authority.
The reliance of Dato on the letter of the CSC is also erroneous. The letter conferred upon Dato
a permanent appointment in lieu of his passing the eligibility exam for Supervising Security
Guard. Such action of the CSC is a clear arrogation of power properly belonging to the
appointing authority.
Time and again, the Court has defined the parameters within which the power of approval of
appointments shall be exercised by the Civil Service Commission. In Luego v. Civil Service
Commission, the Court ruled that CSC has the power to approve or disapprove an
appointment set before it. It does not have the power to make the appointment itself or to
direct the appointing authority to change the employment status of an employee. When it
issued the foregoing communication on March 19, 1976, it stepped on the toes of the
appointing authority, thereby encroaching on the discretion vested solely upon the latter.
DISPOSITIVE
The appealed decision is hereby REVERSED.
GLORIA V. DE GUZMAN | Hermosisima, 1995
FACTS
Private respondents were employees of the Philippine Air Force College of Aeronautics
(PAFCA) which was created by virtue of PD 1078. Under the said decree, the Board of Trustees
is vested with authority, among others, to appoint, as it did appoint, officials and employees
of the college, except the members of the Board of Trustees themselves and the President of
the college.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
The PAFCA Board of Trustees issued Resolution No. 91-026, which declared that "All
faculty/administrative employees are also subject to the required civil service eligibilities.
Thus, private respondents were issued only temporary appointments as they lacked
appropriate civil service eligibilities.
Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary
appointment to the position of Board Secretary II of PAFCA.
Cerillo wasrelieved as Board Secretary of the PAFCA in accordance with Board Resolution No.
92-017 by reason of loss of confidence. Subsequently, however, she was designated as
"Coordinator for Extension Services".
RA No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the
Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the
governing body of the PSCA. The power to make appointments was retained by the Board.
Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation
made anew by then DECS Secretary Isidro Cario.
Col. Loleng inform private respondents that they shall be deemed separated from the service
upon the expiration of their temporary appointments.
Private respondents a "Petition for Mandamus and Reinstatement, with Back Wages and
Damages", with the RTC. The complaint in effect prayed that then DECS Secretary Armand
Fabella complete the filling up of positions for Board of Trustees and order the Board of
Trustees to reinstate the respondents in the case at bench to their respective positions.
RTC (pertinent part): in favor of reinstating Cerillo as Coordinator for Extension Services.
ISSUE
WON the reinstatement of Cerillo is proper.
HELD/RATIO
NO. Cerillo was dismissed from her appointment as Board Secretary because of loss of confidence.
Thus, this cannot be properly the subject of a reinstatement proceeding. Cerillo's assignment as
"Coordinator for Extension Services" was a mere designation. Not being a permanent appointment,
the designation to the position cannot be the subject of a case for reinstatement. Even granting
that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her
reinstatement thereto would not be possible because the position is not provided for in the PSCA
plantilla. At any rate, a mere "designation" does not confer upon the designee security of tenure in
the position or office which he occupies in an acting capacity only.
Further, the fact Cerillo passed the requisite Civil Service Examination after the termination of
her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition
of civil service eligibility is not the sole factor for reappointment. Still to be considered by the
appointing authority are: performance, degree of education, work experience, training,
seniority, and, more importantly, as in this case, whether or not the applicant enjoys the
confidence and trust of the appointing power. The position of Board Secretary II, by its
nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of
the appointee for the duties of the office but primarily close intimacy which ensures freedom
from misgivings of betrayals of personal trust or confidential matters of state."
The questioned order of reinstatement amounts to an undue interference by the RTC in the
exercise of the discretionary power of appointment vested in the PSCA Board of Trustees.
DISPOSITIVE
Reinstatement of Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's
fees are hereby declared null and void.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 31
MATIBAG V. BENIPAYO | Carpio, 2002
FACTS
COMELEC en banc appointed Angelina Matibag as "Acting Director IV" of the Education and
Information Department. Her appointment was renewed twice in a "Temporary" capacity.
President Gloria Macapagal Arroyo appointed, ad interim, Alfredo Benipayo as COMELEC
Chairman, and Resurreccion Borra and Florentino Tuason as COMELEC Commissioners, each
for a term of seven years. They all took their oaths. The OP submitted to the COA the ad
interim appointments for confirmation. COA did not act on said appointments.
Arroyo twice renewed the ad interim appointments for the same term of seven years. They
took their oaths of office for a second and third time. The OP transmitted their appointments
to the COA for confirmation twice as well.
COMELEC Chairman Benipayo issued a Memorandum designating Velma Cinco Officer-in-
Charge of the EID and reassigning Matibag to the Law Department.
COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to Matibags reassignment
and questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the
reassignment of Matibag.
Matibag requested Benipayo to reconsider reassignment. She cited CSC Memorandum
Circular No. 7, reminding heads of government offices that "transfer and detail of employees
are prohibited during the election period."
Benipayo denied her citing COMELEC Resolution No. 3300 dated November 6, 2000, which
allows the COMELEC to reassign its personnel when necessary in the effective performance of
its mandated functions during the prohibited period.
Matibag appealed to the COMELEC and also filed an administrative and criminal complaint
with the Law Department against Benipayo.
During the pendency of her complaint before the Law Department, Matibag also filed an
instant petition with the SC questioning the appointment and the right to remain in office of
Benipayo, Borra and Tuason. Her arguments: (1) ad interim appointments of Benipayo, Borra
and Tuason violate the constitutional provisions on the independence of the COMELEC, as
well as on the prohibitions on temporary appointments and reappointments of its Chairman
and members.
ISSUE
(1) WON the ad interim appointments of Benipayo, Borra and Tuason are constitutional (Art. IX-
C, Sec. 1(2)).
(2) WON Matibags reassignment is legal.
HELD/RATIO:
(1) YES. It is constitutional as it is not in a temporary or acting capacity, rather it is a permanent
appointment. An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee has
qualified into office. The fact that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The Constitution itself makes an ad
interim appointment permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress.
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an
ad interim appointment takes effect immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the office.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 32 Ma. Jessa M. Alvarez 2003-29275
The term "ad interim appointment", as used in letters of appointment signed by the President,
means a permanent appointment made by the President in the meantime that Congress is in
recess.
An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitutional
protection that "[n]o officer or employee in the civil service shall be removed or suspended except
for cause provided by law."
An ad interim appointment can be terminated for two causes ,which are resolutory conditions,
specified in the Constitution: (1) disapproval of his ad interim appointment by the Commission on
Appointments and (2) adjournment of Congress without the Commission on Appointments acting
on his appointment. These resolutory conditions constitute, in effect, a Sword of Damocles over the
heads of ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an
appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power.
In this case, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity. The ad interim appointments of
Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the
President, during the recess of Congress, to make appointments that take effect immediately.
During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for re-
election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45
Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally
extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on
Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three
vacancies in the COMELEC, there would only have been one division functioning in the COMELEC
instead of two during the May 2001 elections. Considering that the Constitution requires that "all x
x x election cases shall be heard and decided in division", the remaining one division would have
been swamped with election cases. Moreover, since under the Constitution motions for
reconsideration "shall be decided by the Commission en banc", the mere absence of one of the
four remaining members would have prevented a quorum, a less than ideal situation considering
that the Commissioners are expected to travel around the country before, during and after the
elections.
Further, the President is free to renew the ad interim appointment of a by-passed appointee. The
prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment
cannot be revived by another ad interim appointment because the disapproval is final under
Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under
Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived
by a new ad interim appointment because there is no final disapproval under Section 16, Article VII
of the Constitution, and such new appointment will not result in the appointee serving beyond the
fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied)
There are four situations where this provision will apply:
a. 1. Where an ad interim appointee to the COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such person cannot be reappointed to the
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
COMELEC, whether as a member or as a chairman, because he will then be actually serving more
than seven years.
b. Where the appointee, after confirmation, serves a part of his term and then resigns before his
seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a
chair, to a vacancy arising from retirement because a reappointment will result in the appointee
also serving more than seven years.
c. Where the appointee is confirmed to serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired term. Such person cannot be reappointed,
whether as a member or chair, to a vacancy arising from retirement because a reappointment will
result in the appointee also serving more than seven years.
d. Where the appointee has previously served a term of less than seven years, and a vacancy arises
from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation
will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution whose terms of
office are less than seven years, but are barred from ever being reappointed under any situation.
An ad interim appointment that has lapsed by inaction of the Commission on Appointments does
not constitute a term of office. The period from the time the ad interim appointment is made to
the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that
the President by his unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on Appointments.
(2) YES. Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to
exercise all the powers of that office for so long as his ad interim appointment remains
effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative
Code, the Chairman of the COMELEC is expressly empowered on his own authority to transfer
or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of
this power, the Chairman is not required by law to secure the approval of the COMELEC en
banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director
IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service Commission.65 Obviously, petitioner does not
enjoy security of tenure as Director IV.
Having been appointed merely in a temporary or acting capacity, and not possessed of the
necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming
that her reassignment was contrary to the Civil Service Law.
Finally, the COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of
COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from
the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For
the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is legally
unassailable.
DISPOSITIVE
The petition is dismissed for lack of merit.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
ERASMO V. HOME INSURANCE & GUARANTY CORP. | Austria-Martinez, 2002
FACTS
Erly Erasmo started working with Home Insurance & Guaranty Corporation (HIGC) in 1982 as a
consultant on the Project Evaluation Department, and held various positions, including
Manager of Project Evaluation Department, Manager of Accounts, Assistant Vice-President of
Accounts Management, Manager II of Guaranty and Credit Insurance Department, and
Officer-in-Charge of Technical Service/Guaranty and Credit Insurance Group (TS/GCIG), until
finally, she was promoted to Vice-President of TS/GCIG. The nature of her appointment was
promotion and her employment status was "temporary," since the position is a Career
Executive Service Office (CESO) and petitioner lacks the required CES eligibility.
Erasmo was administratively charged with: (1) neglect of duty, (2) incompetence in the
performance of official duties, (3) conduct prejudicial to the best interest of the service, and
(4) directly or indirectly having financial and material interest in any transaction requiring the
approval of her office.
Erasmo appealed her temporary appointment to the CSC.
CSC: CES eligibility is required to a CES position, and even if one possesses such eligibility, still
the appointment cannot be considered permanent unless an appointment to the rank has
been granted by the President of the Philippines.
HIGC terminated the appointment of Ersamo and said that the pendency of the administrative
case against her precludes any renewal of her appointment.
CA: affirmed CSC.
ISSUE
WON Erasmo is entitled to be reinstated to the position of Vice-President of TS/GCIG of HIGC.
HELD/RATIO
NO. Erasmos promotional appointment as Vice-President of TS/GCIG is merely temporary in
nature. This is because petitioner does not possess a career executive service eligibility which is
necessary for the position of Vice-President of TS/GCIG, it being a career service executive office.
Her new appointment, being temporary in character, was terminable at the pleasure of the
appointing power with or without a cause, and she does not enjoy security of tenure.
Citing Achacoso v Macaraig: a permanent appointment can be issued only to a person who
meets all the requirements for the position to which he is being Appointed, including the
appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment
could be regarded only as temporary. And being so, it could be withdrawn at will by the
appointing authority and at a moments notice, conformably to established jurisprudence
Erasmo did not understand the implications of her promotional, albeit temporary,
appointment. In the first place, she was under no obligation to accept such promotion, for
there is no law that compels an employee to accept a promotion, as a promotion is in the
nature of a gift or reward, which a person has a right to refuse. And although she was
formerly holding a permanent appointment, she accepted such temporary appointment.
Having done so, she had abandoned or given up her former position. When she accepted the
temporary appointment, in effect, she abandoned her right to security of tenure.
DISPOSITIVE
The petition for review on certiorari is hereby DENIED for lack of merit.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 33
PADILLA V. CSC | Corona, 2003
FACTS
Remedios Padilla assumed the permanent position of Clerk II in the then Ministry of Labor
and Employment. She was promoted to the position of Labor Development Assistant. Without
waiting for the CSC's approval of her appointment, she assumed her new position.
CSC-NCR Regional Director Aurora de Leon sent a 1st Indorsement to the Minister of Labor
and Employment disapproving Padilla's appointment as Labor Development Assistant on the
ground that she failed to meet the eligibility requirement for the position.
Maria Esther Manigque, Officer-In-Charge of the Institute of Labor and Manpower Studies,
sought reconsideration of CSC's ruling by pointing out Padilla's satisfactory performance. It
was denied. Padilla resigned from the service citing "personal reasons."
Padilla took the Career Service Examination (Professional Level). After passing, she re-applied
at the DOLE. She was appointed as Casual Research Assistant which was extended.
Due to the implementation of RA 6758, otherwise known as the Salary Standardization Act of
1989, casual items such as Casual Research Assistant and Casual Technical were abolished.
Padilla was offered the position of Clerk II. However, she declined the offer.
Padilla was appointed Casual Clerk III. After the expiration of her appointment as a casual
employee, she was no longer given any position. She then requested the monetary
conversion of her unused sick and vacation leaves which DOLE granted.
Nevertheless, Padilla appealed her alleged termination as casual employee to the CSC but this
was dismissed for having been filed out of time.
Padilla then filed a letter-complaint addressed to then DOJ. The letter-complaint was
forwarded to DOLE and later to the CSC for appropriate action.
CSC: dismissed.
CA: dismissed. It held that the CSC had the power to revoke the appointment of a public
officer whose qualification did not meet the minimum requirements of the law. And although
Padilla was a civil service eligible, her acceptance of a temporary appointment as a casual
vested her no right to security of tenure.
ISSUE
WON Padillas termination is legal.
HELD/RATIO
YES. Padilla voluntarily resigned and was never removed from the service. Petitioner used to
occupy the permanent position of Clerk II before the disapproval of her appointment for Labor
Development Assistant, a higher permanent position. Thereafter, she voluntarily resigned and later
came back to occupy casual positions only despite passing the eligibility requirement for a
permanent position.
Like removal for just cause, voluntary resignation results in the abdication of all present and
future rights accorded to an employee and in the severance of all work-related ties between
the employer and the employee. When she returned to work for respondent DOLE, the same
was not a continuation of her previous service but the start of a new work slate. She could not
therefore demand from respondent DOLE her reinstatement to a permanent position under
Section 24 (d) of PD 807 inasmuch as she was never unjustly removed.
When Padilla re-applied for and was offered the position of Casual Research Assistant and
later Casual Technical, she readily and unqualifiedly accepted the said offer. Having accepted
the position of a casual employee, petitioner should have known that she had no security of
tenure and could thus be separated from the service anytime.
PROF. GISELLA N. DIZON-REYES
 34 Ma. Jessa M. Alvarez
Further, after finishing her contract as a Casual Technical, respondent DOLE offered to her the
permanent position of Clerk II (the only available permanent position then) for which the
Selection Board deemed her qualified. However, she declined the offer and instead opted to
accept another casual position as Casual Clerk III. On the ground of estoppel, petitioner is
barred from asserting her right to a permanent position.
DISPOSITIVE
The petition is hereby DENIED.
CSC V. DE LA CRUZ | Corona, 2004
FACTS
Saturnino de la Cruz is an employee of the Air Transportation Office (ATO), DOTC, presently
holding the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division.
Prior to such promotional appointment, he was a Check Pilot II in the ATO.
Annabella A. Calamba of the Aviation Security Division of the ATO formally filed with the
DOTC her protest against the promotional appointment of de la Cruz claiming that de la Cruz
did not meet the four-year supervisory requirement for said position.
DOTC: protest has no merit.
CSC-NCR: recalled the approval of de la Cruzs appointment for not meeting the requirements
of the position.
CSC-NCR (2nd decision): affirmed the approval of de la Cruzs appointment as Chief Aviation
Safety Regulation Officer for substantially satisfying the supervisory requirement
CSC-NCR (3rd decision): de la Cruz to be reverted to his former position.
CA: approved de la Cruzs appointment.
ISSUE
WON de la Cruz should retain his position considering that he does not possess the necessary
requirement for such position.
HELD/RATIO
YES. De la Cruz has sufficiently complied with the required experience standards.
The contested position required four years of work experience in managerial position(s) per
the Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of
experience in planning, organizing, directing, coordinating and supervising the enforcement of
air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen
and mechanics and regulation of the activities of flying schools per the above-stated ATO-
DOTC Qualification Standards.
It is a well-settled rule in statutory construction that the use of the term "and/or" means that
the word "and" and the word "or" are to be used interchangeably. The use of the disjunctive
term "or" in this controversy connotes that either the standard in the first clause or that in
the second clause may be applied in determining whether a prospective applicant for the
position under question may qualify. The work already rendered by de la Cruz in the ATO at
the time of his appointment was well within the supervisory standard in the second clause.
He, in fact, rendered 13 years of work prior to his appointment in four of the five sections of
the Aviation Safety Division of the ATO definitely met the minimum supervisory experience
required for the position.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
In Rapisora vs. Civil Service Commission, it was held that the rule that appointees must
possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail
an agencys discretionary power to appoint, as long as the appointee possesses other
qualifications required by law. The appellate court was therefore correct in setting aside the
assailed CSC resolutions and considering the respondents total work experience as sufficient
to meet the supervisory standards under the second clause, thereby finding respondent
qualified for appointment to the contested position.
Further, because of de la Cruzs excellent credentials, DOTC Assistant Secretary for
Administrative and Legal Affairs Wilfredo M. Trinidad, chair of the Personnel Selection Board,
strongly recommended his promotional appointment to the contested position.
De la Cruzs dedication to the service was demonstrated by his conceptualization and
establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national
airports in the country to ensure the security of both airport personnel and passengers.
Respondent also organized the Air Transportation Office Operations Center which now
provides air service assistance on a 24-hour basis.
In Teologo vs. Civil Service Commission, the Supreme Court ruled: "Promotions in the Civil
Service should always be made on the basis of qualifications, including occupational
competence, moral character, devotion to duty, and, not least important, loyalty to the
service. The last trait should always be given appropriate weight, to reward the civil servant
who has chosen to make his employment in the Government a lifetime career in which he can
expect advancement through the years for work well done. Political patronage should not be
necessary. His record alone should be sufficient assurance that when a higher position
becomes vacant, he shall be seriously considered for the promotion and, if warranted,
preferred to less devoted aspirants."
In the appointment of division chiefs, as in this case, the power to appoint rests on the head
of the department. Sufficient if not plenary discretion should be granted to those entrusted
with the responsibility of administering the offices concerned. They are in a position to
determine who can best fulfill the functions of the office vacated. Not only is the appointing
authority the officer primarily responsible for the administration of the office, he is also in the
best position to determine who among the prospective appointees can efficiently discharge
the functions of the position.
DISPOSITIVE
The appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED.
CSC V. DARANGINA | Sandoval-Guttierez, 2007
FACTS
Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of
Muslim Affairs (OMA). He was extended a temporary promotional appointment as director III,
Plans and Policy Services, in the same office. CSC approved this temporary appointment
effective for one (1) year from the date of its issuance unless sooner terminated.
OMA Executive Director Acmad Tomawis terminated the temporary appointment on the
ground that Darangina is not a career executive service eligible. Tomawis then appointed
Alongan Sani as director III. But he is not also a career executive service eligible. Thus, the CSC
disapproved his appointment, stating that Darangina could only be replaced by an eligible.
CSC: sustained termination of Darangina.
CA: reinstated Darangina.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
ISSUE
WON Darangina should be reinstated.
HELD/RATIO
NO. Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as
amended, classifying the appointment status of public officers and employees in the career service,
reads:
SEC. 27. Employment Status. Appointment in the career service shall be permanent or temporary.
(1) Permanent status. A permanent appointment shall be issued to a person who meets all the
requirements for the position to which he is being appointed, including appropriate eligibility
prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance
thereof.
(2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary appointment shall be issued 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,
but the appointee may be replaced sooner if a qualified civil service eligible becomes available.
It is clear that a permanent appointment can issue only to a person who possesses all the
requirements for the position to which he is being appointed, including the appropriate
eligibility. The exception to the rule is where, in the absence of appropriate eligibles, he or she
may be appointed to it merely in a temporary capacity. Such a temporary appointment is not
made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to
prevent a hiatus in the discharge of official functions by authorizing a person to discharge the
same pending the selection of a permanent appointee.
As to Darangins replacement by another non-eligible, the Court ruled that, where a non-
eligible holds a temporary appointment, his replacement by another non-eligible is not
prohibited.
Moreover, in Achacoso, the Court held that when a temporary appointee is required to
relinquish his office, he is being separated precisely because his term has expired. Thus,
reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term
upon his replacement, there is no longer any remaining term to be served. Consequently, he
can no longer be reinstated.
DISPOSITIVE
Respondents employment is validly terminated.
BAUTISTA V. SALONGA | Padilla, 1989
FACTS
President Corazon Aquino designated Mary Concepcion Bautista as "Acting Chairman,
Commission on Human Rights." She later extended a permanent appointment to Bautista.
Bautista took her oath of office before CJ Marcelo B. Fernan.
Bautista then discharged the functions and duties of the Office of Chairman of the
Commission on Human Rights.
COA requested her to submit certain information and documents to confirm her appointment
and requested her presence.
Bautista however replied that the COA has no jurisdiction to review her appointment. Her
reasons:
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 35
The Constitution, has expressly mentioned the government officials whose appointments are
subject to the confirmation of the Commission on Appointments of Congress; and (2) CHR is
an independent office.
COA then informed the Executive Secretary it disapproved Bautistas "ad interim
appointment' as Chairperson of the Commission on Human Rights in view of her refusal to
submit to its jurisdiction.
President Aquino as a result designated Hesiquio R. Mallillin as acting chairman of the
Commission pending the resolution of Bautista's case.
ISSUE
WON the President could extend another appointment (an "ad interim appointment") or any other
kind of appointment to the same office of Chairman of the Commission on Human Rights that
called for confirmation by the COA.
HELD/RATIO
YES. When the President converted Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human Rights, significantly she advised Bautista
(in the same appointment letter) that, by virtue of such appointment, she could qualify and enter
upon the performance of the duties of the office (of Chairman of the Commission on Human
Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously,
she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme
Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of
the Chairman of the Commission on Human Rights. Bautista's appointment therefore was a
completed act on the part of the President.
Constitutional Law, to begin with, is concerned with power not political convenience, wisdom,
exigency, or even necessity. Neither the Executive nor the Legislative (Commission on
Appointments) can create power where the Constitution confers none. The evident
constitutional intent is to strike a careful and delicate balance, in the matter of appointments
to public office, between the President and Congress (the latter acting through the
Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter
such balance of power. In other words, to the extent that the Constitution has blocked off
certain appointments for the President to make with the participation of the Commission on
Appointments, so also has the Constitution mandated that the President can confer no power
of participation in the Commission on Appointments over other appointments exclusively
reserved for her by the Constitution. The exercise of political options that finds no support in
the Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally
delimited power to review presidential appointments, create power to confirm appointments
that the Constitution has reserved to the President alone. Stated differently, when the
appointment is one that the Constitution mandates is for the President to make without the
participation of the Commission on Appointments, the executive's voluntary act of submitting
such appointment to the Commission on Appointments and the latter's act of confirming or
rejecting the same, are done without or in excess of jurisdiction.
Assuming that the Executive may voluntarily allow the Commission on Appointments to
exercise the power of review over an appointment otherwise solely vested by the
Constitution in the President. Yet, as already noted, when the President appointed Bautista
on 17 December 1988 to the position of Chairman of the Commission on Human Rights with
the advice to her that by virtue of such appointment (not, until confirmed by the Commission
on Appointments), she could qualify and enter upon the performance of her duties after
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 36 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

taking her oath of office, the presidential act of appointment to the subject position which,
under the Constitution, is to be made, in the first place, without the participation of the
Commission on Appointments, was then and there a complete and finished act, which, upon
the acceptance by Bautista, as shown by her taking of the oath of office and actual
assumption of the duties of said office, installed her, indubitably and unequivocally, as the
lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was
thus no vacancy in the subject office on 14 January 1989 to which an appointment could be
validly made. In fact, there is no vacancy in said office to this day.
Further, the appointment was not an ad interim appointment, because, under the
Constitutional design, ad interim appointments do not apply to appointments solely for the
President to make, i.e., without the participation of the Commission on Appointments. Ad
interim appointments, by their very nature under the 1987 Constitution, extend only to
appointments where the review of the Commission on Appointments is needed. That is why
ad interim appointments are to remain valid until disapproval by the Commission on
Appointments or until the next adjournment of Congress; but appointments that are for the
President solely to make, that is, without the participation of the Commission on
Appointments, cannot be ad interim appointments.
Finally, Bautista can still be removed but her removal must be for cause and with her right to
due process properly safeguarded. In the case of NASECO vs. NLRC, this Court held that
before a rank-and-file employee of the NASECO, a government-owned corporation, could be
dismissed, she was entitled to a hearing and due process. How much more, in the case of the
Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on
Human Rights.If there are charges against Bautista for misfeasance or malfeasance in office,
charges may be filed against her with the Ombudsman. If he finds a prima facie case against
her, the corresponding information/s can be filed with the Sandiganbayan which may in turn
order her suspension from office while the case or cases against her are pending before said
court.

DISPOSITIVE
Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human
Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of
said office.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
CORPUZ V. CA | Davide, 1998
FACTS
Atty. David Corpuz was appointed as the MTRCBs legal counsel-Prosecutor and Investigation
Services (Supervising Legal Staff Officer). The appointment was approved by Asst. Regional
Director Benita Santos of the CSC-NCR. As MTRCB legal counsel, Corpuz duties included
attendance in Board meetings.
MTRCB passed a resolution: An Act to Declare the Appointments of the Administrative and
Subordinate Employees of this Board as Null and Void. this resolution noted that the past
and present Chairmen failed to submit for approval the appointments to the MTRCB before
forwarding them to the CSC, in violation of sec 5 of PD 876-A and later, PD 1986. It declared
invalid all the appointments of the present administrative and subordinate employees of the
Board and that they shall hold on to their positions in a holdover capacity. Corpuz was
unaware of the resolution as he was on leave.
Henrietta Mendez was appointed MTRCB Chair. New members of the Board were likewise
appointed. At the MTRCB meetings, Mendez was informed of the resolution and an Ad Hoc
Committee was constituted to look into the appointments extended by former Chair Morato
as well as qualifications of the appointees. The committee resolved to recommend the
approval of the appointments, except that of Corpuz and 7 others.
Mendez informed Corpuz that his appointment was disapproved. Corpuz and Larry Rigor filed
a complaint w/ CSC requesting a formal investigation and hearing. CSC promulgated a
resolution granting MTRCB authority to fill up positions vacated due to appointments w/c
were not submitted to the MTRCB for approval. However, CSC in another resolution ruled in
favour of Corpuz saying that his appointment was signed by Morato, the duly authorized
signatory of MTRCB appointments and there being no direct action for revocation or recall,
Corpuz had already acquired security of tenure. MTRCBs MFR was denied. In the meantime,
Corpuz became a permanent employee of the Ombudsman.
MTRCB filed certiorari. CA declared the resolution null and void and ruled that since the appt
of Corpuz was not approved by the MTRCB, the appointment was invalid and he could not
invoke security of tenure.
Corpuz filed instant petition.
ISSUE
WON Corpuz ought to be reinstated.
HELD/RATIO
NO. Compliance with the legal requirements for an appointment to a civil service position is
essential in order to make it fully effective (Favis vs.Rupisan, cited in Mitra vs. Subido). Without the
favorable certification or approval of the Commission, in cases when such an approval is required,
no title to the office can yet be deemed to be permanent; vested in favor of the appointee, and the
appointment can still be recalled or withdrawn by the appointing authority (Grospe vs. Secretary of
Public Works and Communication, 105 Phil. 129; Villanueva vs. Balallo, 9 SCRA 407; Suarez vs.
Commission on Elections, 20 SCRA 797). Until an appointment has become a completed act, it
would likewise be precipitate to invoke the rule of security of tenure.
It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the
same cannot be considered as a valid appointment. As such, he cannot invoke security of
tenure, even if he has rendered service for a number of years.
Atty. David Corpuz did not acquire a vested right nor does he presently enjoy a [sic] security
of tenure to the subject position in the MTRCB for failure to comply with the legal
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 37
requirements needed for a valid appointment. Hence, he cannot be reinstated. Not being a
permanent employee of the Movie and Television Review and Classification Board, the tenure
of respondent Atty. Corpuz ceased when he was not properly appointed under present law.
There are two stages in the process of appointing MTRCB personnel, other than its Secretary,
namely: (a) recommendation by the Chairman which is accomplished by the signing of the
appointment paper, which is among his powers under Section 5(d) above; and (b) approval or
disapproval by the MTRCB of the appointment. As to the Secretary, it is the MTRCB itself that
is empowered to appoint said official pursuant to Section 16.
Where the power of appointment is absolute, and the appointee has been determined upon,
no further consent or approval is necessary, and the formal evidence of the appointment, the
commission, may issue at once. Where, however, the assent or confirmation of some other
officer or body is required, the commission can issue or the appointment may be complete
only when such assent or confirmation is obtained. In either case, the appointment becomes
complete when the last act required of the appointing power is performed. Until the process
is completed, the appointee can claim no vested right in the office nor invoke security of
tenure. Hence, in the case of Corpuz, since the last act required for the completion of his
appointment, viz., approval by the MTRCB itself, was not obtained, as a matter of fact, the
MTRCB ultimately disapproved it, his appointment ceased to have effect, if at all, and his
services were properly terminated.
The tolerance, acquiescence or mistake of the proper officials resulting in non-observance of
the requirements of law or rules to complete the appointment does not render the
requirements ineffective and unenforceable.
A public official or employee who assumed office under an incomplete appointment is merely
a de facto officer for the duration of his occupancy of the office for the reason that he
assumed office under color of a known appointment which is void by reason of some defect
or irregularity in its exercise.
LAPINID V. CSC | Cruz, 1991
FACTS
Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal
Supervisor at the Manila International Container Terminal.
This appointment was protested by Juanito Junsay, who reiterated his earlier representations
with the Appeals Board of the PPA, for a review of the decision of the Placement Committee.
He contended that he should be designated terminal supervisor, or to any other comparable
position, in view of his preferential right thereto.
Junsay, complaining that the PPA had not acted on his protest, went to the Civil Service
Commission and challenged Lapinid's appointment on the same grounds he had earlier raised
before the PPA.
The commission ruled that Appellants Juanito Junsay and Benjamin Villegas be appointed as
Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively.
ISSUE
WON Civil Service Commission is authorized to disapprove a permanent appointment on the
ground that another person is better qualified than the appointee and, on the basis of this finding,
order his replacement by the latter.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 38 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

HELD/RATIO
NO. Citing heavily from Luego v CSC and a catena of other cases involving same issue: it had no
authority to revoke the said appointment simply because it believed that the private respondent
was better qualified for that would have constituted an encroachment on the discretion vested
solely in the appointing authority.
The only function of the Civil Service Commission in cases of this nature, according to Luego,
is to review the appointment in the light of the requirements of the Civil Service Law, and
when it finds the appointee to be qualified and all other legal requirements have been
otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out
that the recognition by the Commission that both the appointee and the protestant are
qualified for the position in controversy renders it functus officio in the case and prevents it
from acting further thereon except to affirm the validity of the former's appointment.

Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego
v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this
point, the Court has leniently regarded the attitude of the public respondent on this matter as
imputable to a lack of comprehension and not to intentional intransigence. But we are no
longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by
the Civil Service Commission after the date of the promulgation of this decision shall be
considered contempt of this Court and shall be dealt with severely, in view especially of the
status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must stress, as
a necessary reminder, that every department and office in the Republic must know its place in
the scheme of the Constitution. The CSC should recognize that its acts are subject to reversal
by this Court, which expects full compliance with its decisions even if the Commission may not
agree with them.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
b. Appointment by the President
SARMIENTO V. MISON | Padilla, 1987
FACTS
In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the
Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin Salvador
Mison from performing the functions of the Office of Commissioner of the Bureau of Customs
and Guillermo Carague, as Secretary of the Department of Budget, from effecting
disbursements in payment of Mison's salaries and emoluments
Petitioners: Mison's appointment as Commissioner of the Bureau of Customs is
unconstitutional as it was not confirmed by the Commission on Appointments.
Mison, et al.: appointment was constitutional.
ISSUE
WON the President of the Philippines acted within her constitutional authority and power in
appointing Salvador Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation.
HELD/RATIO
YES. Under the provisions of the 1987 Constitution, there are 4 groups of officers whom the
President shall appoint.
a) the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution;
b) all other officers of the Government whose appointments are not otherwise provided
for by law;
c) those whom the President may be authorized by law to appoint;
d) officers lower in rank whose appointments the Congress may by law vest in the
President alone.
The first group of officers is appointed with the consent of the Commission on Appointments.
As to the second, third and fourth groups of officers, it is unclear as to whether they require
the consent of the COA.
By following the accepted rule in constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it would follow that only those
appointments to positions in the first group require such consent.
The historical background of the law shows that in the 1935 Constitution, almost all
presidential appointments required the consent (confirmation) of the Commission on
Appointments. On the other hand, the 1973 Constitution, consistent with the authoritarian
pattern in which it was molded and remolded by successive amendments, placed the absolute
power of appointment in the President with hardly any check on the part of the legislature.
Given the above two extremes, it is not difficult for the Court to state that the framers of the
1987 Constitution and the people adopting it, struck a "middle ground" by requiring the
consent (confirmation) of the COA for the first group of appointments and leaving to the
President, without such confirmation, the appointment of other officers.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original
text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986
Constitutional Commission is almost a verbatim copy of its counterpart provision in the 1935
Constitution. When the framers discussed on the floor of the Commission the proposed text
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 39
of Section 16, Article VII, a feeling was manifestly expressed to make the power of the
Commission on Appointments over presidential appointments more limited than that held by
the Commission in the 1935 Constitution.
It is, therefore, clear that appointments to the second and third groups of officers can be
made by the President without the consent (confirmation) of the Commission on
Appointments.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there
are officers whose appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank, compared to some officers whose
appointments have to be confirmed by the Commission on Appointments under the first
sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank
Governor requires no confirmation by the Commission on Appointments, even if he is higher
in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular
Service.
The power to appoint is fundamentally executive or presidential in character. Limitations on
or qualifications of such power should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is only in the first
sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to
the positions therein enumerated require the consent of the Commission on Appointments.
Further, the use of the word alone" after the word "President" in third sentence of Sec. 16,
Article VII is, more than anything else, a slip or lapsus in draftmanship. The clear and
expressed intent of its framers was to exclude presidential appointments from confirmation
by the Commission on Appointments, except appointments to offices expressly mentioned in
the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that
Congress may by law vest the appointment of lower-ranked officers in the President alone, or
in the courts, or in the heads of departments, because the power to appoint officers whom he
(the President) may be authorized by law to appoint is already vested in the President,
without need of confirmation by the Commission on Appointments, in the second sentence of
the same Sec. 16, Article VII. The word "alone" in the third sentence appears to be redundant
and this redundancy cannot prevail over the clear and positive intent of the framers.
Thus, it is evident that the position of Commissioner of the Bureau of Customs (a bureau
head) is not one of those within the first group of appointments where the consent of the
Commission on Appointments is required. Moreover, the President is expressly authorized by
law to appoint the Commissioner of the Bureau of Customs as provided in Republic Act No.
1937, otherwise known as the Tariff and Customs Code of the Philippines.
DISPOSITIVE
Petition dismissed.
Melencio-Herrera, concurring:
The difference in language used is significant. Under the first sentence it is clear that the President
nominates and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term 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. Deliberately eliminated was any reference to
nomination.
PROF. GISELLA N. DIZON-REYES
 40 Ma. Jessa M. Alvarez
Cruz, dissenting:
This interpretation is absurd! E.g. To illustrate: The USec of Foreign Affairs, not the head of his
department, does not have to be confirmed, but the ordinary consul, who is under his jurisdiction,
must be confirmed. The colonel is by any standard lower in rank than the Chairman of the CHR,
which was created by the Constitution; yet the former is subject to confirmation but the latter is
not becaus he does not come under the first sentence. The Special Prosecutor, whose appointment
is not vested by the Constitution in the President, is not subject to confirmation under the first
sentence, and neither are the Governor of the Central Bank and the members of the Monetary
Board because they fall under the second sentence as interpreted by the majority opinion. Yet in
the case of the multi-sectoral members of the regional consultative commission, whose
appointment is vested by the Constitution in the President under Article X, Section 18, their
confirmation is required although their rank is decidedly lower.
CALDERON V. CARALE | Padilla, 1992
FACTS
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442)
was approved. It provides in Section 13 thereof as follows: The Chairman, the Division
Presiding Commissioners and other Commissioners shall all be appointed by the President,
subject to confirmation by the Commission on Appointments. Appointments to any vacancy
shall come from the nominees of the sector which nominated the predecessor. The Executive
Labor Arbiters and Labor Arbiters shall also be appointed by the President, upon
recommendation of the Secretary of Labor and Employment, and shall be subject to the Civil
Service Law, rules and regulations.
Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners
of the NLRC representing the public, workers and employers sectors. After said appointments,
then Labor Secretary Franklin Drilon issued Administrative Order No. 161, series of 1989,
designating the places of assignment of the newly appointed commissioners.
ISSUE
(1) WON the the permanent appointments extended by the President to the Chairman and
Members of the NLRC are legal and constitutional without submitting the same to the COA for
confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715.
(2) WON Art. 215 of the LC as amended by RA 6715 transgressed Sec 16 Art VII of the
Constitution by expanding the confirmation powers of COA.
HELD/RATIO
(1) YES. The second sentence of Sec. 16, Art. VII refers to all other officers of the government
whose appointments are not otherwise provided for by law and those whom the President
may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section
16, Article VII of the Constitution, more specifically under the "third groups" of appointees
referred to in Mison, i.e. those whom the President may be authorized by law to appoint.
Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in
the first sentence of Section 16, Article VII whose appointments requires confirmation by the
Commission on Appointments.
(2) YES. It is unconstitutional because:
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
a. it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by
adding thereto appointments requiring confirmation by the Commission on
Appointments; and
b. it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by
imposing the confirmation of the Commission on Appointments on appointments which
are otherwise entrusted only with the President.
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a
judicial function. The Court respects the laudable intention of the legislature. Regretfully, however,
the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it
requires confirmation of the Commission on Appointments over appointments of the Chairman and
Member of the National Labor Relations Commission (NLRC) is beyond redemption if we are to
render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.
In Endencia and Jugo vs. David, 11 the Court held: The legislature cannot, upon passing law which
violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a
declaration that it shall be so construed as not to violate the constitutional inhibition.
We have already said that the Legislature under our form of government is assigned the task and
the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative
department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertained its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in
judicial processes and court decisions.
It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not
unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system
embodied in the 1935 Constitution where the Commission on Appointments exercised the power
of confirmation over almost all presidential appointments, leading to many cases of abuse of such
power of confirmation.
DISPOSITIVE
Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the
Commission on Appointments of appointments of the Chairman and Members of the National Labor
Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect.
DE CASTRO V. JBC | Bersamin, 2010
FACTS
Chief Justice Punos compulsory retirement was set on May 17, 2010, or seven days after the
presidential election.
Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the
JBC, requesting that the process for nominations to the office of the Chief Justice be
commenced immediately.
The JBC unanimously agreed to start the process of filling up the position of Chief Justice and
consequently published for that purpose its announcement opening the
application/recommendation for the position of CHIEF JUSTICE OF THE SUPREME COURT
which must be submitted not later than 4 February 2010.
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing
the names of the following candidates to invite the public to file their sworn complaint,
written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice
Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The
announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of
February 13, 2010.
ISSUE
WON an outgoing President has the power to appoint to the Judiciary within the long period
starting two months before the presidential elections until the end of the presidential term
(election ban).
HELD/RATIO
YES. Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary.
First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.
Art. VII pertains to the Executive, while Art. VIII goes for the Judiciary. Had the framers
intended to extend the prohibition contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly done so. They could not have
ignored the meticulous ordering of the provisions. They would have easily and surely written
the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4
(1), Article VIII.
Although Valenzuela came to hold that the prohibition covered even judicial appointments, it
cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior
Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the appointments to the
Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in
the Supreme Court was undoubtedly a special provision to establish a definite mandate for
the President as the appointing power, and cannot be defeated by mere judicial
interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was
"couched in stronger negative language." Such interpretation even turned out to be
conjectural, in light of the records of the Constitutional Commission's deliberations on Section
4 (1), Article VIII.
Second, Section 15, Article VII does not apply as well to all other appointments in the
Judiciary. The Constitutional Commission confined the prohibition to appointments made in
the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial positions to the unhurried and deliberate
prior process of the JBC ensured that there would no longer be midnight appointments to the
Judiciary. If midnight appointments in the mold of Aytona were made in haste and with
irregularities, or made by an outgoing Chief Executive in the last days of his administration out
of a desire to subvert the policies of the incoming President or for partisanship, the
appointments to the Judiciary made after the establishment of the JBC would not be suffering
from such defects because of the JBC s prior processing of candidates.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 41
Indeed, it is axiomatic in statutory construction that the ascertainment of the PURPOSE of the
enactment is a step in the process of ascertaining the INTENT or MEANING of the enactment,
because the reason for the enactment must necessarily shed considerable light on the law of
the statute, i.e., the intent; hence, the enactment should be construed with reference to its
intended scope and purpose, and the court should seek to carry out this purpose rather than
to defeat it.
Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can
be made for the purpose of buying votes in a coming presidential election, or of satisfying
partisan considerations. The experience from the time of the establishment of the JBC shows
that even candidates for judicial positions at any level backed by people influential with the
President could not always be assured of being recommended for the consideration of the
President, because they first had to undergo the vetting of the JBC and pass muster there.
Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating process was
absent from the Aytona midnight appointment.
Third, the fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations of the Constitutional
Commission.
Fourth, Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint.
The fact that Section 14 and Section 16 refer only to appointments within the Executive
Department renders conclusive that Section 15 also applies only to the Executive Department.
This conclusion is consistent with the rule that every part of the statute must be interpreted
with reference to the context, i.e. that every part must be considered together with the other
parts, and kept subservient to the general intent of the whole enactment. It is absurd to
assume that the framers deliberately situated Section 15 between Section 14 and Section 16,
if they intended Section 15 to cover all kinds of presidential appointments. If that was their
intention in respect of appointments to the Judiciary, the framers, if only to be clear, would
have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4
(1) thereof.
Fifth, to hold like the Court did in Valenzuela that Section 15 extends to appointments to the
Judiciary further undermines the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments. Such a holding will
tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders
vying for the Presidency in a presidential election. Consequently, the wisdom of having the
new President, instead of the current incumbent President, appoint the next Chief Justice is
itself suspect, and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment by the incumbent
President does not run the same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Sixth, the need for the incumbent President to appoint during the prohibition period the
successor of CJ Puno within the context of Sec 4 (1), Art VIII, because anyway there will still be
about 45 days of the 90 days mandated in Sec 4(1), Art VIII remaining? The argument is
flawed, because it is focused only on the coming vacancy occurring from CJ Puno s retirement
by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in
the SC.
PROF. GISELLA N. DIZON-REYES
 42 Ma. Jessa M. Alvarez
Seventh, as a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC
list is necessary at all for the President any President to appoint a Chief Justice if the
appointee is to come from the ranks of the sitting justices of the Supreme Court.
Appoint an acting CJ? With reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in an acting capacity. The express
reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief
Justice to head the membership of the Supreme Court. Otherwise, they would have simply
written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948
in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy
the plain intent of the Constitution. For sure, the framers intended the position of Chief
Justice to be permanent, not one to be occupied in an acting or temporary capacity.
DISPOSITIVE
Petition dismissed.
Dissenting Opinion
CARPIO MORALES, J.:
In reality, the essential question boils down to the limitation on the appointing power of the
President.
Constitutional draftsmanship style is the weakest aid in arriving at a constitutional
construction
The first ratiocination adverts to the "organization and arrangement of the provisions of the
Constitution" that was, as the ponencia declares, purposely made by the framers of the
Constitution to "reflect their intention and manifest their vision" of the charters contents. It
is a precept, however, that inferences drawn from title, chapter or section headings are
entitled to very little weight. And so must reliance on sub-headings, or the lack thereof, to
support a strained deduction be given the weight of helium. Section sequencing alone of
Sections 14, 15 and 16 of Article VII, as explained in the fourth ratiocination, does not suffice
to signify functional structuring.
That the power of judicial appointment was lodged in the President is a recognized measure
of limitation on the power of the judiciary, which measure, however, is counterbalanced by
the election ban due to the need to insulate the judiciary from the political climate of
presidential elections. To abandon this interplay of checks and balances on the mere
inference that the establishment of the JBC could de-politicize the process of judicial
appointments lacks constitutional mooring. The establishment of the JBC is not sufficient to
curtail the evils of midnight appointments in the judiciary
The constitutional prohibition in Section 15 found its roots in the case of Aytona v. Castillo,
where among the "midnight" or "last minute" appointments voided to abort the abuse of
presidential prerogatives or partisan efforts to fill vacant positions were one in the Supreme
Court and two in the Court of Appeals.
Heeding Aytonas admonition, the Constitutional Commission (ConCom) saw it fit to provide
for a comprehensive ban on midnight appointments, finding that the establishment of the JBC
is not enough to safeguard or insulate judicial appointments from politicization.
That about the end of the term of the President, he may prolong his rule indirectly by
appointing people to these sensitive positions, like the commissions, the Ombudsman, the
JUDICIARY, so he could perpetuate himself in power even beyond his term of office; therefore
foreclosing the right of his successor to make appointments to these positions. We should
realize that the term of the President is six years and under what we had voted on, there is no
reelection for him. Yet he can continue to rule the country through appointments made about
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2003-29275 October 6, 2011
the end of his term to these sensitive positions. The clear intent of the framers is thus for the
ban on midnight appointments to apply to the judiciary.
To hold that the ban on midnight appointments applies only to executive positions, and not to
vacancies in the judiciary and independent constitutional bodies, is to make the prohibition
practically useless. It bears noting that Section 15, Article VII of the Constitution already
allows the President, by way of exception, to make temporary appointments in the Executive
Department during the prohibited period. Under this view, there is virtually no restriction on
the Presidents power of appointment during the prohibited period.
The general rule is clear since the prohibition applies to ALL kinds of midnight appointments.
The Constitution made no distinction. Ubi lex non distinguit nec nos distinguere
debemos.Under the rules of statutory construction, exceptions, as a general rule, should be
strictly but reasonably construed; they extend only so far as their language fairly warrants,
and all doubts should be resolved in favor of the general provisions rather than the exception.
Where a general rule is established by statute with exceptions, the court will not curtail the
former nor add to the latter by implication.
It bears noting that the Court had spoken in one voice in Valenzuela. The ponencia should not
hastily reverse, on the sole basis of Justice Regalados opinion, the Courts unanimous en banc
decision penned by Chief Justice Andres Narvasa, and concurred in by, inter alia, Associate
Justices who later became Chief Justices Hilario Davide, Jr., Artemio Panganiban and
Reynato Puno.
The proper interpretation therefore depends more on how it was understood by the people
adopting it than in the framers' understanding thereof. The clear import of Section 15 of
Article VII is readily apparent. The people may not be of the same caliber as Justice Regalado,
but they simply could not read into Section 15 something that is not there. Casus omissus pro
omisso habendus est.
The 90-day period to fill a vacancy in the Supreme Court is suspended during the ban on
midnight appointments
Respecting the rationale for suspending the 90-day period, in cases where there is physical or
legal impossibility of compliance with the duty to fill the vacancy within the said period, the
fulfillment of the obligation is released because the law cannot exact compliance with what is
impossible. In the present case, there can only arise a legal impossibility when the JBC list is
submitted or the vacancy occurred during the appointments ban and the 90-day period would
expire before the end of the appointments ban, in which case the fresh 90-day period should
start to run at noon of June 30. This was the factual antecedent respecting the trial court
judges involved in Valenzuela. There also arises a legal impossibility when the list is submitted
or the vacancy occurred prior to the ban and no appointment was made before the ban
starts, rendering the lapse of the 90-day period within the period of the ban, in which case
the remaining period should resume to run at noon of June 30. The outgoing President would
be released from non-fulfillment of the constitutional obligation, and the duty devolves upon
the new President.
Considering also that Section 15 of Article VII is an express limitation on the Presidents power
of appointment, the running of the 90-day period is deemed suspended during the period of
the ban which takes effect only once every six years.
Otherwise stated, since there is a ban, then there is no duty to appoint as the power to
appoint does not even exist. Accordingly, the 90-day period is suspended once the ban sets in
and begins or continues to run only upon the expiration of the ban.
The Supreme Court can function effectively during the midnight appointments ban without an
appointed Chief Justice.
The ponencia also declares that the JBC should start the process of selecting the candidates to
fill the vacancy in the Supreme Court before the occurrence of the vacancy, explaining that
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
the 90-day period in the proviso, "Any vacancy shall be filled within ninety days from the
occurrence thereof," is addressed to the President, not to the JBC.
Such interpretation is absurd as it takes the application and nomination stages in isolation
from the whole appointment process. For the ponencia, the filling of the vacancy only
involves the President, and the JBC was not considered when the period was increased from
60 days to 90 days. The sense of the Concom is the exact opposite. The express allowance of a
90-day period of vacancy rebuts any policy argument on the necessity to avoid a vacuum of
even a single day in the position of an appointed Chief Justice.
NACHURA, J.:
"No amount of exigency can make this Court exercise a power where it is not proper."1
I am deeply impressed by the very well written ponencia of Justice Lucas P. Bersamin. However, I
am unable to concur in all of his conclusions. Instead, I vote to dismiss all the petitions because
they have utterly failed to present a justiciable controversy.
BRION, J.:
I AGREE with the conclusion that the President can appoint the Chief Justice and Members of
the Supreme Court two months before a presidential election up to the end of the Presidents
term, but DISAGREE with the conclusion that the authority to appoint extends to the whole
Judiciary.
Where, as in Valenzuela, the Chief Justice was not effectively ruling on Section 4(1) of Article
VIII, and was in fact ruling on a case involving lower court judges.
Section 9 does not impose a hard and fast rule on the period to be observed, apparently
because the urgency of the appointment may not be as great as in the appointment of
Members of the Supreme Court. The period for appointment can move at the discretion of
the JBC, although the exercise of this discretion also carries its own butt-in and implicit limits.
The former Chief Justices weightier reason arose from the Aytona where mass appointments
were recognized as an evil that could affect the integrity of our elections. Because of the
number of appointments that may currently be involved if appointments to lower courts are
allowed before the May 2010 election and the power and influence judges may exert over
their local communities, an exemption from the election ban may indeed bring about (or at
least give the appearance of bringing about) the evils that the framers of the Constitution and
this Court itself sought to remedy under Section 15, Article VII and the Aytona decision,
respectively.
For this reason, I do not disagree with Valenzuela for its ruling on lower court judges; Section
15, Article VII may indeed prevail over Section 9, Article VIII.
In contrast with this conclusion, an interpretation that Section 15, Article VII will similarly
prevail over Section 4(1), Article VIII is clearly misplaced. The structure, arrangement and
intent of the Constitution and the public policy reasons behind them simply speak against the
interpretation that appointments of Members of the Court should be subject to the election
ban.
AYTONA V. CASTILLO | Bengzon, 1962
FACTS
On December 29, 1961, President Carlos P. Garcia appointed Dominador R. Aytona as ad
interim Governor of the Central Bank. On the same day, the latter took the corresponding
oath.
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2003-29275 October 6, 2011 43
On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on
December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and
cancelling all ad interim appointment made by President Garcia after he had been proclaimed
elected by the Congress and appointed Andres V. Castillo on January 1, 1962, as ad interim
Governor of the Central Bank, and the latter qualified immediately.
Both appointed exercised the powers of their office, although Castillo informed Aytona of his
title thereto; and some unpleasantness developed in the premises of the Central Bank.
However, the next day and thereafter, Aytona was definitely prevented from holding office in
the Central Bank.
Aytona instituted a quo warranto proceeding. He claims that he was validly appointed, had
qualified for the post, and therefore, the subsequent appointment and qualification of Castillo
was void, because the position was then occupied by him.
Castillo replies that the appointment of Aytona had been revoked by Administrative Order
No. 2 of Macapagal
ISSUE
WON the new President had power to issue the order of cancellation of the ad interim
appointments made by the past President, even after the appointees had already qualified.
HELD/RATIO
YES. There were other appointments thus submitted by President Garcia on that date, December
29, 1961. All in all, about three hundred fifty (350) "midnight" or "last minute" appointments. In
revoking the appointments, President Macapagal is said to have acted for these and other reasons:
(1) the outgoing President should have refrained from filling vacancies to give the new President
opportunity to consider names in the light of his new policies, which were approved by the
electorate in the last elections; (2) these scandalously hurried appointments in mass do not fall
within the intent and spirit of the constitutional provision authorizing the issuance of ad interim
appointments; (3) the appointments were irregular, immoral and unjust, because they were issued
only upon the condition that the appointee would immediately qualify obviously to prevent a recall
or revocation by the incoming President, with the result that those deserving of promotion or
appointment who preferred to be named by the new President declined and were by-passed; and
(4) the abnormal conditions surrounding the appointment and qualifications evinced a desire on
the part of the outgoing President merely subvert the policies of the incoming administration.
It is common sense to believe that after the proclamation of the election of President
Macapagal, his was no more than a "care-taker" administration. He was duty bound to
prepare for the orderly transfer of authority the incoming President, and he should not do
acts which he ought to know, would embarrass or obstruct the policies of his successor. The
time for debate had passed; the electorate had spoken. It was not for him to use powers as
incumbent President to continue the political warfare that had ended or to avail himself of
presidential prerogatives to serve partisan purposes. The filling up vacancies in important
positions, if few, and so spaced to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee's qualifications may
undoubtedly be permitted. But the issuance of 350 appointments in one night and planned
induction of almost all of them a few hours before the inauguration of the new President
may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill all vacant positions1 irrespective of
fitness and other conditions, and thereby deprive the new administration of an opportunity to
make the corresponding appointments.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 44 Ma. Jessa M. Alvarez 2003-29275
Normally, when the President makes appointments the consent of the Commission on
Appointments, he has benefit of their advice. When he makes ad interim appointments, he
exercises a special prerogative and is bound to be prudent to insure approval of his selection
either previous consultation with the members of the Commission or by thereafter explaining
to them the reason such selection. Where, however, as in this case, the Commission on
Appointments that will consider the appointees is different from that existing at the time of
the appointment and where the names are to be submitted by successor, who may not
wholly approve of the selections, the President should be doubly careful in extending such
appointments. Now, it is hard to believe that in signing 350 appointments in one night,
President Garcia exercised such "double care" which was required and expected of him; and
therefore, there seems to be force to the contention that these appointments fall beyond the
intent and spirit of the constitutional provision granting to the Executive authority to issue ad
interim appointments.
IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA | Narvasa, 1998
FACTS
There is a standing issue as to the constitutionality of the President s appointment to the CA
of 8 associate justice (reached the CJ April 6, 1998). The initial position by the JBC courtesy of
Justice Regalado was that it is not within the election ban. However, they took note of the
fact that the appointments from OP were dated March 11 i.e. day before the ban). So it was
this playing safe by the OP (which did not subscribe to JBC s initial hypothesis) that made the
JBC suspicious of the constitutionality of the appointment.
However on May 12, 1998, Pres. Ramos appointed Valenzuela and Vallarta as judges of RTC
(presumably to counteract the suspicion stirred in the earlier appointments to the CA).
There is an apparent conflict between the election ban on appointments (2 months prior to
election) and the provision in the constitution which mandates president to fill vacancy within
90 days. Court considered the situation an administrative matter.
ISSUE
WON during the period of the ban on appointments imposed by Section 15, Article VII of the
Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of
Sections 4(1) and 9 of Article VIII.
HELD/RATIO
NO. Section 15, Article VII of the Constitution reads as follows: SEC 15. Two months immediately
before the next presidential elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.
On the other hand, appointments to fill vacancies in the Supreme court during the period
mentioned in the provision above could seemingly be justified by another provision of the
same Constitution. Section 4(1) of Article VIII which states:
SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. ** **. Any vacancy shall be filled within ninety days from the occurrence thereof.
Also pertinent is Section 9, Article VIII:
The Members of the Supreme Court and judges in lower courts shall be appointed by the
President from the list of at least three nominees prepared by the Judicial and Bar Council for
every vacancy. Such appointments need no confirmation.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
For the lower courts, the President shall issue the appointments within ninety days from the
submission of the list.
The Court's view is that during the period stated in Section 15, Article VII of the Constitution -
"2 months immediately before the next presidential elections and up to the end of his term" -
the President is neither required to make appointments to the courts nor allowed to do so;
and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill
vacancies in the courts within the time frames provided therein unless prohibited by Section
15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only
once every six years.
It appears that Section 15, Article VII is directed against two types of appointments: (1) those
made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are
similar to those which are declared election offenses in the Omnibus Election Code. The
second type of appointments prohibited by Section 15, Article VII consists of the so-called
"midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated
in his bid for reelection, became no more than a "caretaker" administrator whose duty was to
"prepare for the orderly transfer of authority to the incoming President."
As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new President. Such
appointments, so long as they are "few and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee's qualifications," can be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to have been well considered,
were upheld.
The prevention of vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide
the period of the ban which, incidentally and as earlier pointed out, comes to exist only once
in every six years. Moreover, those occurring in the lower courts can be filled temporarily by
designation.
The Constitution must be construed in its entirety as one, single, instrument.
The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the
Office of the Chief Justice on May 14, 1998) were unquestionably made during the period of
the ban. Consequently, they come within the operation of the first prohibition relating to
appointments which are considered to be for the purpose of buying votes or influencing the
election. While the filling of vacancies in the judiciary is undoubtedly in the public interest,
there is no showing in this case of any compelling reason to justify the making of the
appointments during the period of the ban. On the other hand, as already discussed, there is
a strong public policy for the prohibition against appointments made within the period of the
ban.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
c. Appointment under Civil Service Qualification Standard
JUCO V. NLRC | Hermosisima, 1997
FACTS
Benjamin C. Juco was hired as a project engineer of National Housing Corporation (NHC). He
was separated from the service for having been implicated in a crime of theft and/or
malversation of public funds.
Juco filed a complaint for illegal dismissal against the NHC with the Department of Labor.
Labor Arbiter: dismissed the complaint. NLRC had no jurisdiction.
NLRC: reversed Labor Arbiter.
NHC appealed before the SC.
SC: reinstated the decision of Labor Arbiter.
Juci filed with the CSC a complaint for illegal dismissal, with preliminary mandatory injunction.
CSC: dismissed for LOJ. NHC is a government corporation without an original charter but
organized/created under the Corporate Code thus not within the scope of the civil service
Juco filed with NLRC a complaint for illegal dismissal.
Labor Arbiter: Juco was illegally dismissed as there was evidence that the criminal case
against him was purely fabricated, prompting the trial court to dismiss the charges against
him.
NLRC: reversed the decision of Labor Arbiter on the ground of LOJ.
ISSUE
Whether Juco, an employee of the NHC, is covered by the Labor Code or the Civil Service Law.
HELD/RATIO
LABOR CODE. Under the laws then in force, employees of GOCC were governed by the Civil Service
Law. Hence, Article 277 of the Labor Code (PD 442) then provided: "The terms and conditions of
employment of all government employees, including employees of government-owned and
controlled corporations shall be governed by the Civil Service Law, rules and regulations x x x.
Further, the 1973 Constitution, Article II-B, Section 1(1), provided: The Civil Service embraces
every branch, agency, subdivision and instrumentality of the government, including
government-owned or controlled corporations.
However, the 1987 Constitution now provides that: The civil service embraces all branches,
subdivision, instrumentalities, and agencies of the Government, including government owned
or controlled corporations with original charter. (Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v. National Labor Relations Commission, though the
case arose at the time when the 1973 Constitution was still in effect the SC ruled that the
NLRC has jurisdiction over the employees of NASECO on the ground that it is the 1987
Constitution that governs because it is the Constitution in place at the time of the decision.
The new phrase with original charter means that government-owned and controlled
corporations refer to corporations chartered by special law as distinguished from
corporations organized under the Corporation Code.
DISPOSITIVE
NLRC reversed.
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2003-29275 October 6, 2011 45
ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU V CA | Purisima, 1998
FACTS
CSC Chairman Patricia A. Sto. Tomas required the Secretary of Finance to submit all
appointments in the EIIB.
Commissioner of EIIB Jose T. Almonte requested for confirmation of EIIBs exemption from
CSC rules and regulations invoking PD No. 14581 and LOI No. 712.
CSC: issued Resolution No. 89-400, denying Almontes request.
CSC: found Almonte guilty of indirect contempt of the Commission for complying with the
resolution.
Almonte went to the CA.
CA: dismissed the petition. (a) The civil service contemplated in the constitutional provision is
very comprehensive in its scope. (b) The fact that positions in the EIIB are primarily
confidential did not place it outside the domain of civil servants, since it is conceded that one
holding in the Government a primarily confidential position is in the Civil Service (Ingles v.
Mutuc, 26 SCRA 171). (c) That fact merely exempts confidential positions in the EIIB from the
constitutional rule 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 [Art.
IX (B), Sec. 2 (2) +.
ISSUE
WON the EIIB is covered by the Civil Service.
HELD/RATIO
YES. Succinct and clear is the provision of the Constitution in point that all government agencies,
without exception, are covered by the civil service. EIIB is a government agency under the
Department of Finance as provided by Section 17, Chapter 4, Title II, Book IV of the 1987
Administrative Code. Therefore, EIIB is within the ambit of the Civil Service Law.
Further, PD No. 1458 and LOI No. 71 provide for the exemption of petitioner EIIB only from
Civil Service Rules and Regulations relative to appointments and other personnel actions, but
not from the Civil Service Law or Civil Service Rules and Regulations relative to any other
matter.
Finally, reliance on Section 26 of Executive Order No. 127 is without merit. Membership of
EIIB in the intelligence community is of no moment, insofar as application of the Civil Service
Law is concerned. The National Bureau of Investigation (NBI), also a member of the
intelligence community which performs functions similar to those of EIIB, e.g., intelligence
gathering, investigation, research, etc., submits to the Civil Service Commission the
appointments of all NBI personnel, whether belonging to the career or non-career service.
DISPOSITIVE
1
Application of WAPCO and Civil Service Rules - Personnel of the FDIIB shall be exempted from
WAPCO and Civil Service Rules and Regulations relative to appointments and other personnel
actions: Provided, That they shall be entitled to the benefits and privileges accorded to government
employees ...
2
10. It is further directed that personnel of the BII shall be exempt from OCPC and Civil Service
Rules and Regulations relative to appointments and other personnel actions; Provided, That they
shall be entitled to the benefits accorded to government employees ... "
PROF. GISELLA N. DIZON-REYES
 46 Ma. Jessa M. Alvarez
Petition denied.
CHUA V. CSC | Padilla, 1992
FACTS
Lydia Chua believing that she is qualified to avail of the benefits of RA 66833 filed an
application with National Irrigation Administration (NIA).
NIA however denied and instead, offered her separation benefits equivalent to one half (1/2)
month basic pay for every year of service.
CSC: further denied her request.
Lydia asked for reconsideration and contended that (a) the law merely requires that a
government employee whether regular, temporary, emergency, or casual, should have two
consecutive years of government service in order to be entitled. (b) she meets the
requirements and (c) personnel of NIA special projects are entitled to the regular benefits,
such (sic) leaves, compulsory retirement and the like.
CSC: denied. (a) The provision of Section 3.1 of Joint DBM-CSC Circular Letter No. 89-1 does
not only require an applicant to have two years of satisfactory service on the date of
separation/retirement but further requires said applicant to be on a casual, emergency,
temporary or regular employment status as of the date of enactment of R.A. 6683 and (b) the
law does not contemplate contractual employees in the coverage.
Chua went to the SC by way of special civic action for certiorari. She argues that (a) she is not
among those excluded from the benefits of RA 6683 and (b) she is a full time employee of NIA
entitled to all the regular benefits provided for by the Civil Service Commission and (c) if
casuals and emergency employees were given the benefit of R.A. 6683 with more reason that
she who was holding a permanent status as Personnel Assistant A and has rendered almost
15 years of faithful, continuous service in the government should be similarly rewarded.
NIA and CSC: Lydia is excluded. (a) Lydia's employment is co-terminous with the project
(Watershed Management and Erosion Control Project (WMECP)), (b) she is not a regular and
career employee of NIA her position is not included in its regular plantilla; retirement
presupposes employment for a long period. The most that a non-career personnel can expect
upon the expiration of his employment is financial assistance; (c) assuming arguendo that her
appointment is permanent, security of tenure is available only for the term of office; (d) the
objective of RA 6683 is not really to grant separation or retirement benefits but
reorganization to streamline government functions. The application of the law must be made
consistent with the purpose for which it was enacted. Thus, it will not have any application to
3
An Act providing for benefits for early retirement and voluntary separation from the government
service as well as for involuntary separation due to reorganization. Deemed qualified to avail of its
benefits are those enumerated in Sec. 2 of the Act, as follows:
Sec. 2. Coverage. This Act shall cover all appointive officials and employees of the National
Government, including government-owned or controlled corporations with original charters, as
well as the personnel of all local government units. The benefits authorized under this Act shall
apply to all regular, temporary, casual and emergency employees, regardless of age, who have
rendered at least a total of two (2) consecutive years of government service as of the date of
separation. Uniformed personnel of the Armed Forces of the Philippines including those of the PC-
INP are excluded from the coverage of this Act.
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2003-29275 October 6, 2011
special projects such as the WMECP which exists only for a short and definite period; and (e)
the law applies only to employees of the national government, government-owned or
controlled corporations with original charters and local government units.
ISSUE
WON Lydia should be included in the coverave of the Early Retirement Law.
HELD/RATIO
YES. First, the definition of regular employee in the Labor Code is not applicable to the Civil
Service Law. The classification is career and non-career.
I. Career Service:
The appointment status may be:
1. permanent one issued to a person who has met the requirements of the position to which
appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and
Standards promulgated in pursuance thereof;
2. temporary In the absence of appropriate eligibles and it becomes necessary in the public
interest to fill a vacancy, a temporary appointment should be issued 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, but the
appointee may be replaced sooner if a qualified civil service eligible becomes available. 8
The Administrative Code of 1987 characterizes the Career Service as:
(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) Commission 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. 9
II. Non-Career Service:
(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.
Included in the non-career service are:
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 confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed terms of office and their personal
or confidential staff;
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
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.
5. emergency and seasonal personnel.
6. Casual where and when employment is not permanent but occasional, unpredictable,
sporadic and brief in nature.
The employment status of personnel hired under foreign assisted projects is considered co-
terminous, that is, they are considered employees for the duration of the project or until the
completion or cessation of said project (CSC Memorandum Circular No. 39, S. 1990, 27 June
1990).
Under CSC Memorandum Circular No. 11, series of 1991 (5 April 1991): Co-terminous status
shall be issued to a person whose entrance in the service is characterized by confidentiality by
the appointing authority OR that which is subject to his pleasure OR co-existent with his
tenure.
a) co-terminous with the project when the appointment is co-existent with the duration of
a particular project for which purpose employment was made or subject to the availability of
funds for the same;
b) co-terminous with the appointing authority when appointment is co-existent with the
tenure of the appointing authority.
c) co-terminous with the incumbent when appointment is co-existent with the appointee,
in that after the resignation, separation or termination of the services of the incumbent the
position shall be deemed automatically abolished; and
d) co-terminous with a specific period, e.g. "co-terminous for a period of 3 years" the
appointment is for a specific period and upon expiration thereof, the position is deemed
abolished.
In the last two classifications (c) and (d), what is termed co-terminous is the position, and not
the appointee-employee. Further, in (c) the security of tenure of the appointee is guaranteed
during his incumbency; in (d) the security of tenure is limited to a specific period.
What substantial differences exist, if any, between casual, emergency, seasonal, project, co-
terminous or contractual personnel? All are tenurial employees with no fixed term, non-
career, and temporary. A co-terminous employee is a non-career civil servant, like casual and
emergency employees. We see no solid reason why the latter are extended benefits under
the Early Retirement Law but the former are not.
The objective of the Early Retirement or Voluntary Separation Law is to trim the bureaucracy,
hence, vacated positions are deemed abolished upon early/voluntary retirement of their
occupants. Will the inclusion of co-terminous personnel defeat such objective?
Casual, temporary and contractual personnel serve for shorter periods, and yet, they only
have to establish two (2) years of continuous service to qualify. This, incidentally, negates the
OSG's argument that co-terminous or project employment is inherently short-lived,
temporary and transient, whereas, retirement presupposes employment for a long period.
Here, violation of the equal protection clause of the Constitution becomes glaring because
casuals are not even in the plantilla, and yet, they are entitled to the benefits of early
retirement. How can the objective of the Early Retirement Law of trimming the bureaucracy
be achieved by granting early retirement benefits to a group of employees (casual) without
plantilla positions? There would, in such a case, be no abolition of permanent positions or
streamlining of functions; it would merely be a removal of excess personnel; but the positions
remain, and future appointments can be made thereto.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 47
DISPOSITIVE
Petition granted.
CUEVAS V. BACAL | Mendoza, 2000
FACTS
Josefina G. Bacal passed the Career Executive Service Examinations. She was conferred CES
eligibility and was appointed Regional Director of the Public Attorneys Office. She was later
appointed by President Fidel V. Ramos to the rank of CESO III.
She was designated by the Secretary of Justice as Acting Chief Public Attorney which was
confirmed by President Ramos.
Carina J. Demaisip was appointed chief public defender by President Joseph Estrada.
Another appointment paper was issued by the President on July 6, 1998 designating
petitioner Demaisip as chief public defender (formerly chief public attorney) while, Bacal
appointed Regional Director, Public Defenders Office.
Bacal filed a petition for quo warranto questioning her replacement as Chief Public Attorney
CA: ruled in Bacals favor.
ISSUE
WON Bacals transfer amounted to a removal without cause.
HELD/RATIO
NO. Josefina G. Bacal is a CESO III and that the position of Regional Director of the PAO, to which
she was transferred, corresponds to her CES Rank Level III and Salary Grade 28. This was her
position before her appointment to the position of Chief Public Attorney of the PAO, which
requires a CES Rank Level I for appointment thereto. If she was paid a salary equivalent to Salary
Grade 30 while she was holding that office, it was only because, under the law, if a CESO is assigned
to a position with a higher salary grade than that corresponding to his/her rank, he/she will be
allowed the salary of the CES position.
Appointments, assignments, reassignments, and transfers in the Career Executive Service are
based on rank. On this point, the Integrated Reorganization Plan cannot be any clearer. It
provides: As to appointments: an incumbent who holds a permanent appointment to a
position embraced in the Career Executive Service shall continue to hold his position, but may
not advance to a higher class of position in the Career Executive Service unless or until he
qualifies for membership in the Career Executive Service. As to Assignments, Reassignments
and Transfers: members of the Service shall be assigned to occupy positions as may be
identified by the Board on the basis of the members functional expertise.
Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the
inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the
Board through a formal Board Resolution after an evaluation of the examinees performance
in the four stages of the CES eligibility examinations.
Upon conferment of a CES eligibility and compliance with the other requirements prescribed
by the Board, an incumbent of a CES position may qualify for appointment to a CES rank.
Appointment to a CES rank is made by the President upon the recommendation of the Board.
The appropriate CESO rank to which a CES eligible may be appointed depends on two major
qualification criteria, namely: (1) level of managerial responsibility; and, (2) performance.
PROF. GISELLA N. DIZON-REYES
 48 Ma. Jessa M. Alvarez
Further, security of tenure in the career executive service is thus acquired with respect to
rank and not to position.
Within the Career Executive Service, personnel can be shifted from one office or position to
another without violation of their right to security of tenure because their status and salaries
are based on their ranks and not on their jobs. Mobility and flexibility in the assignment of
personnel, the better to cope with the exigencies of public service, is the distinguishing
feature of the Career Executive Service.
The implementing rules and regulations of the CES Board provide:
Salary of Career Executive Service Officers. A CESO is compensated according to his CES rank
and not on the basis of the CES position he occupies. However, if a CESO is assigned to a CES
position with a higher salary grade than that of his CES rank, he is allowed to receive the
salary of the CES position.
Should he be assigned or made to occupy a CES position with a lower salary grade, he shall
continue to be paid the salary attached to his CES rank.
Petitioners are, therefore, right in arguing that respondent, "as a CESO, can be reassigned
from one CES position to another and from one department, bureau or office to another.
Further, respondent, as a CESO, can even be assigned or made to occupy a CES position with a
lower salary grade. In the instant case, respondent, who holds a CES Rank III, was correctly
and properly appointed by the appointing authority to the position of Regional Director, a
position which has a corresponding CES Rank Level III."
Indeed, even in the other branches of the civil service, the rule is that, unless an employee is
appointed to a particular office or station, he can claim no security of tenure in respect of any
office. This rule has been applied to such appointments as Director III or Director IV or
Attorney IV or V in the Civil Service Commission since the appointments are not to specified
offices but to particular ranks; Election Registrars; Election Officers, also in the Commission on
Elections; and Revenue District Officers in the Bureau of Internal Revenue. Reiterating the
principle in Sta. Maria v. Lopez, this Court said:. . . The rule that outlaws unconsented
transfers as anathema to security of tenure applies only to an officer who is appointed - not
merely assigned - to a particular station. Such a rule does not proscribe a transfer carried out
under a specific statute that empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the agency. The use of approved
techniques or methods in personnel management to harness the abilities of employees to
promote optimum public service cannot be objected to. . . .
Respondent's appointment to the position of Chief Public Attorney was merely temporary and
that, consequently, her subsequent transfer to the position of Regional Director of the same
office, which corresponds to her CESO rank, cannot be considered a demotion, much less a
violation of the security of tenure guarantee of the Constitution.
Finally. Justice Puno makes much of the fact that petitioner Carina J. Demaisip is not a CES
eligible. Suffice it to say the law allows in exceptional cases the appointment of non-CES
eligibles provided that the appointees subsequently pass the CES Examinations. Thus Part III,
Chap. I, Art. IV, par. 5 of the Integrated Reorganization Plan provides that the President may,
in exceptional cases, appoint any person who is not a Career Executive Service eligible;
provided that such appointee shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher class until he qualified in such
examination.
DISPOSITIVE
CA reversed.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
PAGCOR V. RILLORAZA | De Leon, 2001
FACTS
Administrative charges for dishonesty, grave misconduct, conduct prejudicial to the best
interest of the service, and loss of confidence, were brought against Carlos P. Rilloraza, a
casino operations manager resulting from his failure to prevent an irregularity and violations
of casino and regulations committed by co-officers.
PAGCOR dismissed Rilloraza on the ground that he was a confidential employee whose term
expired by reason of loss of confidence.
CSC: Rilloraza guilty of simple neglect of duty. Suspension of 1 month and 1 day.
CA: affirmed CSC.
PAGCOR filed an instant petition with the SC and argued that Rilloraza is a confidential
employee who holds holds office at the pleasure of the appointing power and may be
removed upon the cessation of confidence in him by the latter by virtue of Section 16 of
Presidential Decree No. 1869.4
ISSUE
WON Rilloraza is a confidential employee.
HELD/RATIO
NO. In Commissioner vs. Salas it was held 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).
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:
(a) when the President, upon recommendation of the Commissioner of Civil Service, has
declared the position to be primarily confidential; and,
(b) when by the nature of the functions of the office there exists "close intimacy" between
the appointee and appointing power.
When Republic Act No. 2260 (Civil Service Act) was enacted, Section 5 thereof provided 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 policy-
determining, primarily confidential, or highly technical in nature."
In the case of Piero, et al. vs. Hechanova, et al., the Court declared that it is the nature of the
position which determines whether a position is primarily confidential, policy-determining or
highly technical. In other words, it is the appointing power that determines the nature of the
position. In case of conflict then it is the Court that determines whether the position is
primarily confidential or not. Thus, Presidential Decree No. 1869 cannot be given a literally
stringent application without compromising the constitutionally protected right of an
employee to security of tenure.
This dictum still holds despite the fact that in the 1987 Constitution and the Administrative
Code of 1987, Book V the phrase "in nature" was deleted evidenced by the plenary session of
the 1986 ConCom.
4
Exemption.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" appointee.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
From the deliberations of the ConCom it is 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.
Justice Regalados incisive discourse yields three (3) important points: first, the classification
of a particular position as primarily confidential, policy-determining or highly technical
amounts to no more than an executive or legislative declaration that is not conclusive upon
the courts, the true test being the nature of the position. Second, whether primarily
confidential, policy-determining or highly technical, the exemption provided in the Charter
pertains to exemption from competitive examination to determine merit and fitness to enter
the civil service. Such employees are still protected by the mantle of security of tenure. Last,
and more to the point, Section 16 of P.D. 1869, insofar as it declares all positions within
PAGCOR as primarily confidential, is not absolutely binding on the courts.
As casino operations manager, Rillorazas duties and responsibilities call for a great measure
of both ability and dependability. They can hardly be characterized as routinary, for he is
required to exercise supervisory, recommendatory and disciplinary powers with a wide
latitude of authority. Lacking, however, is that amplitude of confidence reposed in him by the
appointing power so as to qualify his position as primarily confidential.
Further, a casino operations manager reports directly to the Branch Manager. It does not
appear from the record to whom the Branch Manager (or the Branch Manager for
Operations, as the case may be) reports. The stratum separating the casino operations
manager from reporting directly to the higher echelons renders remote the proposition of
proximity between respondent and the appointing power. There is no showing of that
element of trust indicative of a primarily confidential position because in De los Santos v.
Mallare it was 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.
DISPOSITIVE
CA affirmed.
AQUINO V. CSC | Medialdea, 1992
FACTS
Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo
City, was designated as Officer-in-Charge of the Division Supply Office by the DECS Regional
Director Saturnino R. Magturo in view of the retirement of the Supply Officer I, Mr. Jose I.
Aviquivil.
Prior to such designation, Aquino was designated as Property Inspector and In-Charge of the
Supply Office performing the duties and responsibilities of the Supply Officer I.
However, 2 years later the Division Superintendent of City Schools of San Pablo City, Milagros
Tagle, issued a promotional appointment to Leonarda D. de la Paz as Supply Officer I.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 49
At the time of her appointment, Leonarda was then holding the position of Clerk II. The Civil
Service approved her appointment as permanent "provided that there is no pending
administrative case against the appointee, no pending protest against the appointment, nor
any decision by competent authority that will adversely affect the approval of (the)
appointment".
Aquino filed a protest with the DECS Secretary questioning the qualification and competence
of Leonarda.
DECS Secretary Lourdes R. Quisumbing: revoked appointment of Leonarda on the ground that
Aquino was more competent and qualified.
Aquino was then issued issued a permanent appointment as Supply Officer I which was
approved by the Civil Service Regional Office.
Leonarda filed a notice of appeal to the Merit Systems Protection Board (MSPB).
MSPB: affirmed DECS.
CSC: reversed and restored Leonarda to her position.
ISSUE
WON CSC committed grave abuse of discretion in revoking the appointment of Aquino as it found
Leonarda better qualified.
HELD/RATIO
NO. Consistently, the Court has ruled that the Civil Service Commission has no authority to revoke
an appointment simply because it believed that another person is better qualified than the
appointee for it would constitute an encroachment on the discretion solely vested on the
appointing authority. However, the Civil Service Commission has authority to revoke the
appointment of the successful protestant, petitioner herein, when the right to security of tenure of
the prior appointee, private respondent herein, to the contested position had already attached, as
in this case. It must be noted that public CSC did not direct the appointment of a substitute of its
choice. It merely restored the appointment of Leonarda who was first appointed to the contested
position.
It is well-settled that once 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, 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 (Mitra v. Subido).
There is thus reasonable ground for the rule that the moment the discretionary power of
appointment has been exercised and the appointee assumed the duties and functions of the
position, the said appointment cannot be revoked by the appointing authority on the ground
merely that the protestant is more qualified than the first appointee, subject however to the
condition that the first appointee should possess the minimum qualifications required by law.
Otherwise, the security of tenure guaranteed by Article IX-B, Section 2 par. (3) of the 1987
Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop
in exercising its discretionary power of appointment.
Even on the assumption that the revocation of Leonarda's appointment was validly exercised
by DECS Secretary Quisumbing, still the appointment extended to Aquino was tainted with
irregularity as it was issued before the finality of the decision on the protest in violation of
CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant if
the protest case is not yet finally resolved, since there is no vacancy in the position pending
resolution of the protest case. There can be no appointment to a non-vacant position. The
PROF. GISELLA N. DIZON-REYES
 50 Ma. Jessa M. Alvarez
incumbent must first be legally removed or his appointment validly terminated. An
appointment to an office which is not vacant is null and void ab initio.
DISPOSITIVE
CSC affirmed.
DE LOS SANTOS V. MALLARE | Tuason, 1950
FACTS
Eduardo de los Santos was appointed City Engineer of Baguio by the President which was
confirmed by the COA.
Gil R. Mallare was extended an ad interim appointment by the President to the same position,
after which, 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.
ISSUE
WON the particular provision in Section 2545 of the RAC 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.
HELD/RATIO
YES. 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 is directly incompatible with 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."
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."
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."
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
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
merit and fitness, to be determined as far as practicable by competitive examination would
be adhered of meticulously in the first place.
The office of city engineer is neither primarily confidential, policy-determining, nor highly
technical. CONFIDENTIAL: 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.
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
HIGHLY TECHNICAL: 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.
DISPOSITIVE
De los Santos is entitled to remain in office as City Engineer of Baguio.
TRIA V. STO. TOMAS | Feliciano, 1991
FACTS
Rogelio A. Tria had been employed with Finance Ministry Intelligence Bureau (FMIB) as a
Management and Audit Analyst I, a position expressly described in the letter of appointment as
"confidential." The appointment was signed by Pelagio A. Cruz, Lieutenant General, AFP (Ret)
Commissioner, FMIBI."
Tria first wrote a confidential report to the FMIB Deputy Commissioner detailing the nonfeasance
of a FMIB lawyer assigned to Region 5.
Tria submitted another confidential report, but this time addressed to the Deputy Executive
Secretary, Office of the President, concerning Col. Jackson P. Alparce (Ret.). FMIB Region 5 Director.
Tria filed an application for vacation leave for 100 working days to take advantage of a Civil Service
circular which allows employees who propose to seek interim employment abroad, to go on
prolonged leave of absence without pay without being considered separated from the service.
When Tria was already in Manila attending to the processing of his travel papers, a Memorandum
was sent to him by Assistant FMIB Commissioner Brig. Gen. Miguel Villamor (Ret.), questioning his
direct submission to the Office of the President which affected the Bureaus image.
Tria failed to receive and respond and so, another Memorandum was issued informing him that his
application for leave has been disapproved. He was required to report for work otherwise, he
would be dropped from the rolls.
Tria, however, had already left the country. He was therefore considered to be on AWOL and
eventually terminated.
It was upon his return to the country that Tria came to know of Memoranda. He asked for
reinstatement, stating that his application for vacation leave had been approved by his immediate
chief and the personnel officer. With respect to the confidential report he had addressed to the
Deputy Executive Secretary, Tria explained that he earlier handed a report to the then Deputy
Commissioner regarding said irregularities committed particularly by Atty. Geronga, R-5 and
Director Col. Alfarce but no investigation was undertaken. Further, the FMIB-R-5 always appeared
in the local newspaper regarding the unscrupulous behavior of the director thus, he felt in good
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
faith that the matter should be brought to the attention of the Deputy Executive Secretary of
Malacaang so that appropriate action can be taken for the good of the service.
His reinstatement was denied.
ISSUE
WON an employee holding a position considered as "primarily confidential" may be dismissed on
grounds of "loss of confidence" by the appointing authority on the basis of the employee's having
gone on unauthorized leave of absence and of his having filed a confidential report on one of his
superiors directly with the Office of the President.
HELD/RATIO
NO. The effects of characterizing a position as "primarily confidential" are two-fold: firstly, such
characterization renders inapplicable the ordinary requirement of filling up a position in the Civil
Service on the basis of merit and fitness as determined by competitive examinations; and secondly,
while the 1987 Constitution does not exempt such positions from the operation of the principle set
out in Article IX (B), Section 2 (3) of the same Constitution that "no officer or employee of the Civil
Service shall be removed or suspended except for cause provided by law," the "cause provided by
law' includes "loss of confidence."
It is said to be a settled rule that those holding primarily confidential positions "continue for
so long as confidence in them endures. Their termination can be justified on the ground of
loss of confidence because in that case their cessation from office involves no removal but the
expiration of their term of office."
Notwithstanding the refined distinction between removal from office and expiration of the
term of a public officer, the net result is loss of tenure upon loss of confidence on the part of
the appointing power.
A position in the Civil Service may be considered primarily confidential: (1) when the
President of the Philippines, upon recommendation of the Civil Service Commission, has
declared that position to be primarily confidential; or (2) when the position, given the
character of the duties and functions attached to it, is primarily confidential in nature.
All positions in the EIIB were apparently declared as "highly confidential" by former President
Marcos in Letter of Implementation No. 71 however, the actual duties and functions of
petitioner as a "Management and Audit Analyst I" in the FMIB, as set out in the job
description of that position, one is struck by the ordinary and day to day character of such
duties and functions. In Piero v. Hechanova, 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 the Chief Executive to deny to any officer, by executive fiat, the protection of section 4,
Article XII, of the Constitution." In De los Santos v. Mallare, ". . . [T]hree 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 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.
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 and delegation and reporting] without
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 51
embarrassment or freedom from misgivings of betrayals of personal trust or confidential
matters of state. . . ."
It is evident that the duties of petitioner related to the study and analysis of organizational
structures and procedures, with the end in view of making recommendations designed to
increase the levels of efficiency and coordination within the organization so analyzed.
Moreover, the modest rank and fungible nature of the position occupied by petitioner, is
underscored by the fact that the salary attached to it was no more than P1,500.00 a month at
the time he went on leave (October, 1986). There thus appears nothing to suggest that
petitioner's position was "highly" or even "primarily confidential" in nature.
Accordingly, Tria's particular position of "Management and Audit Analyst I" is not a "primarily
confidential" position so as to render him removable upon, or the expiration of his term of
office concurrent with, "loss of confidence" on the part of the appointing power who, as
already noted, was the then Commissioner of the FMIB.
If petitioner Tria was not legally removable upon "loss of confidence" on the part of the FMIB
Commissioner, was there nonetheless legal cause provided by law for his dismissal from the
service? NO. We believe that the constitutional prohibition against suspension or dismissal of
an officer or employee of the Civil Service "except for cause provided by law" is a guaranty of
both procedural and substantive due process. Procedural due process requires that
suspension or dismissal come, as a general rule, only after notice and hearing. In the case at
bar, as already noted, the EIIB issued a Memorandum to petitioner, after he was already in
Manila, requiring him to explain why no disciplinary action should be taken against him for
having submitted a report directly to the Office of the President, Malacaang, "which
adversely affected the bureau's image and placed the Commissioner in an embarrassing
position," which Memorandum was not received by petitioner. However, after his return from
abroad and upon request of petitioner, another investigation was conducted by the EIIB
where petitioner had an opportunity to explain his side of the matter. The Court considers
that, under the circumstances of this case the subsequent investigation constituted
substantial compliance with the demands of procedural due process.
Substantive due process requires, among other things, that an officer or employee of the Civil
Service be suspended or dismissed only "for cause," a phrase which, so far as concerns
dismissals of public officers not holding positions which are "policy determining, highly
technical or primarily confidential," has acquired, according to this Court, the following "well-
defined concept." "It means for reasons which the law and sound policy recognize 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
cause. Moreover, the cause must relate to and effect the administration of the office, and
must be restricted to something of a substantial nature directly affecting the rights and
interests of the public."
In the instant case, we have noted earlier that petitioner was charged with violation of official
rules and regulations consisting more specifically, of: (1) having gone on an extended
unauthorized leave of absence; (2) having bypassed official channels in transmitting a report
concerning alleged misfeasance or non-feasance on the part of a superior officer of the EIIB
directly to the Office of the President through the Deputy Executive Secretary, rather than
through the respondent EIIB Commissioner.
It is true that petitioner was probably precipitate in taking off for abroad before his
application for vacation leave was formally approved by the FMIB Central Office in Quezon
City. We must, however, take into account the circumstance that his application for leave
without pay had been approved or indorsed for approval by his immediate superior in the
PROF. GISELLA N. DIZON-REYES
 52 Ma. Jessa M. Alvarez 2003-29275
FMIB, Region 5 Office, where petitioner was assigned, and so petitioner was not completely
without basis in believing that the formal approval of his application in the FMIB Central
Office would follow as a matter of course. It thus appears to the Court that, on balance, the
extreme penalty of dismissal from the service was unduly harsh in the case of petitioner; that
suspension for thirty (30) days would have been more than adequate punishment and that
the real and efficient cause of his dismissal from the service was the fact that he had bypassed
official channels in rendering the confidential report addressed to the Deputy Executive
Secretary, Office of the President, concerning the then Regional Director of FMIB, Region 5.
In the case at bar, we note that petitioner sent his confidential (and presumably sealed)
report to an office having overall administrative supervision and control over the FMIB (i.e.,
the Office of the President); the report was not, in other words, sent either to the media or to
an office or agency having no administrative jurisdiction over the public official or office
complained of. That report was a privileged communication and the author thereof enjoys the
benefit of the presumption that he acted in good faith. The respondents have not alleged that
petitioner acted with malice in fact. We do not believe that petitioner's act constituted
serious misconduct but rather, on the contrary, was an act of personal and civic courage by
which petitioner exhibited his loyalty to the FMIB as an institution and ultimately to the
Government of the Republic of the Philippines
DISPOSITIVE
Petitioner to be reinstated.
LAUREL V. CSC | Davide, 1991
FACTS
Batangas Governor Jose P. Laurel appointed his brother, Benjamin Laurel, as Senior Executive
Assistant in the Office of the Governor, a non-career service position which belongs to the
personal and confidential staff of an elective official.
The position of Provincial Administrator of Batangas became vacant due to the resignation of
Mr. Felimon C. Salcedo III. Jose designated his brother, Benjamin Laurel, as Acting Provincial
Administrator. He further issued Benjamin Laurel a promotional appointment as Civil Security
Officer, a position which the Civil Service Commission classifies as "primarily confidential"
pursuant to P.D. No. 868.
Lorenzo Sangalang wrote a letter to the Civil Service Commission to bring to its attention the (2)
"appointment" of Benjamin Laurel as Jose violated the rule on nepotism because the position
was a career service position.
CSC revoked the designation of Benjamin on the ground that it is "nepotic. It ruled that the
prohibitive mantle on nepotism would include designation, because what cannot be done
directly cannot be done indirectly. Finally it maintained that said position is not primarily-
confidential in nature.
ISSUE
(1) WON the position of Provincial administrator is confidential in nature.
(2) WON the rule on nepotism applies to mere dsignations.
HELD/RATIO
(1) NO.The position of Provincial Administrator is embraced within the Career Service under
Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of
Position Descriptions to wit:
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October 6, 2011
"Education: Bachelor's degree preferably in Law/Public or Business Administration.
Experience: Six years of progressively responsible experiences in planning, directing and
administration of provincial government operations. Experience in private agencies
considered are those that have been more or less familiar level of administrative proficiency.
Eligibility: RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First
Grade/Supervisor."
It may be added that the definition of its functions and its distinguishing characteristics as laid
down in the Manual, thus:
"2. DEFINITION:Under the direction of the Provincial Governor, responsible for the overall
coordination of the activities of the various national and local agencies in the province; and
general planning, direction and control of the personnel functions and the administrative
services of the Governor's Office.
3. DISTINGUISHING CHARACTERISTICS:This is the class for top professional level
management, administrative and organizational work in the operation of provincial
government with highly complex, involved relationship with considerable delegation of
authority and responsibility and a high degree of public contact."
It is indisputable that the position is in the career service which, per Section 5 of P.D. No. 807,
is characterized by (a) entrance based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on highly technical qualifications, (b)
opportunity for advancement to higher career positions, and (c) security of tenure. More
specifically, it is an open career position, for appointment to it requires prior qualification in
an appropriate examination. It falls within the second major level of positions in the career
service, per Section 7 of P.D. No. 807, which reads: "SECTION 7. Classes of Positions in the
Career Service. (a) Classes of positions in the career service appointment to which requires
examinations shall be grouped into three major levels as follows:
The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity
requiring at least four years of college work up to Division Chief level; . . . ."
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 the Chief Executive to deny to any officer, by
executive fiat, the protection of Section 4, Article XII 19 of the Constitution.
YES. Not being primarily confidential, appointment thereto must, inter alia, be subject to the
rule on nepotism.
Likewise there is one further obstacle to the occupation by Benjamin Laurel of the position of
Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he
was holding the position of Senior Executive Assistant in the Office of the Governor, a
primarily confidential position. He was thereafter promoted as Civil Security Officer, also a
primarily confidential position. Both positions belong to the non-career service under Section
6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and
validly designate Benjamin Laurel as Acting Provincial Administrator, a career position,
because Section 24 of R.A. 2260 provides that no person appointed to a position in the non-
competitive service (now non-career) shall perform the duties properly belonging to any
position in the competitive service (now career service).
Being embraced in the career service, the position of Provincial Administrator must, as
mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary
appointment. The first shall be issued to a person who meets all the requirements for the
position to which he is appointed, including the appropriate eligibility prescribed. In the
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
absence of appropriate eligibles and it becomes necessary in the public interest to fill a
vacancy, a temporary appointment shall be issued to a person who meets all the
requirements for the position except the appropriate civil service eligibility, provided,
however, that such temporary appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil service eligible becomes available.
Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said decree, career service positions
may be filled up only by appointment, either permanent or temporary; hence a designation of
a person to fill it up because it is vacant, is necessarily included in the term appointment, for it
precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed
included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on
nepotism would be meaningless and toothless. Any appointing authority may circumvent it by
merely designating, and not appointing, a relative within the prohibited degree to a vacant
position in the career service. Indeed, as correctly stated by public respondent, "what cannot
be done directly cannot be done indirectly.
GRINO V. CSC | Gancayco, 1991
FACTS:
Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He resigned and
recommended the elevation of Teotimo Arandela from Senior Legal Officer to Provincial
Attorney. OIC Governor Licurgo Tirador later on decided to appoint Arandela as the Provincial
Attorney.
Cirilo Gelvezon was promoted from Legal Officer II to Senior Legal Officer. Teodolfo Dato-on
and Nelson Geduspan were appointed to the position of Legal Officer II.
Simplicio Grio assumed office as the newly elected governor of Iloilo. He informed Arandela
and all the legal officers at the Provincial Attorney's Office about his decision to terminate
their services because 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.
Demaisip was reappointed as the Provincial Attorney and arranged the replacements of the
other legal officers. Cirilo Gelvezon was replaced by Santos Aguadera, Nelson Geduspan was
replaced by Manuel Casumpang and Manuel Travia took the place of Teodolfo Dato-on.
MSPB: declared the termination illegal.
CSC: Affirmed MSPB.
ISSUE
WON 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.
HELD/RATIO
PROVINCIAL ATTORNEY CONFIDENTIAL. SUBORDINATES NOT CONFIDENTIAL. Cadiente v Santos
is on fours with this case. Position of city legal officer is confidential . It 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. x x x 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
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 53
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.
The main difference between the primary confidential officer and the fixed term officer 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.
Citing Besa v PNB: 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.
The positions of city legal officer and provincial attorney were created under Republic Act No.
5185 which categorized them together as positions of trust. 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.
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. To rule otherwise would be
tantamount to classifying two positions with the same nature and functions in two
incompatible categories.
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. The personal character of the relationship prohibits its delegation in
favor of another attorney without the client's consent.
RE: delegated work of government lawyers: 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.
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. 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.
DISPOSITIVE
Arandela ordered to vacate. Subordinates to stay.
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 54 Ma. Jessa M. Alvarez 2003-29275
CSC V. SALAS | Regalado, 1997
FACTS
Rafael 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 allegedly for loss of confidence, after a
covert investigation conducted by the Intelligence Division of PAGCOR.
The summary of intelligence information claimed that Salas 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. The two polygraph tests taken
by Salas also yielded corroborative and unfavorable results.
MSPB: Salas is a confidential employee and his term of office merely expired.
CSC: affirmed MSPB.
CA: reversed. Salas is not a confidential employee, hence he may not be dismissed on the
ground of loss of confidence. CA applied the proxmity rule and 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.
ISSUE
WON Salas is a confidential employee.
HELD/RATIO
NO. 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 PAGCOR 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. Section 16 of Presidential Decree No. 1869
provides:
"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."
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. 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.
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October 6, 2011
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 non-competitive 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., it is the nature of the position which finally determines whether a
position is primarily confidential, policy-determining or highly technical. Executive
pronouncements, such as Presidential Decree No. 1869, can be no more than initial
determinations that are not conclusive in case of conflict. Piero doctrine is still controlling
even 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. 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.
Accordingly, 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.
Likewise, 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., 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 ensures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state. . . ." Thus, 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.
Private respondent does not enjoy such "close intimacy" with the appointing authority of
PAGCOR. Based on the nature of
functions of 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 ensure "freedom from misgivings of
betrayals of personal trust." 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
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
month. There thus appears nothing to suggest that private respondent's position was "highly"
or much less, "primarily" confidential in nature.
DISPOSITIVE
CA affirmed.
TARROSA V. SINGSON | Quiason, 1994
FACTS
A petition for prohibition was filed by Tarrosa as a "taxpayer," questioning the appointment
of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having
been confirmed by the Commission on Appointments.
The petition seeks to enjoin Singson from the performance of his functions as such official
until his appointment is confirmed by the Commission on Appointments and Salvador M.
Enriquez, Secretary of Budget and Management, from disbursing public funds in payment of
the salaries and emoluments of respondent Singson.
ISSUE
WON Tarrosa may commence this action.
HELD/RATIO
NO. The instant petition is in the nature of a quo warranto proceeding as it [1] seeks the ouster of
Singson and [2] alleges that the latter is unlawfully holding or exercising the powers of Governor of
the Bangko Sentral.
Such a special civil action can only be commenced by the Solicitor General OR by a person
claiming to be entitled to a public office or position unlawfully held or exercised by another
(Revised Rules of Court, Rule 66, Sec. 6).
Citing Sevilla v. Court of Appeals: Petitioner who did not aver that he was entitled to the office
of the City Engineer of Cabanatuan City, could not bring the action for quo warranto to oust
the respondent from said office as a mere usurper.
Citing Greene v. Knox: The question of title to an office, which must be resolved in a quo
warranto proceeding, may not be determined in a suit to restrain the payment of salary to the
person holding such office, brought by someone who does not claim to be the one
entitled to occupy the said office.
To uphold the action would encourage every disgruntled citizen to resort to the courts,
thereby causing incalculable mischief and hindrance to the efficient operation of the
governmental machinery.
MENDOZA V. ALLAS | Puno, 1999
FACTS
Pedro Mendoza joined the Bureau of Customs in 1972. He held the positions of Port Security
Chief from March 1972 to August 1972, Deputy Commissioner of Customs from August 1972
to September 1975, Acting Commissioner of Customs from September 1975 to April 1977 and
Customs Operations Chief I from October 1987 to February 1988.
He was appointed Customs Service Chief of the Customs Intelligence and Investigation Service
(CIIS). In 1989, the position of Customs Service Chief was reclassified by the Civil Service as
"Director III" in accordance with Republic Act No. 6758 and National Compensation Circular
No. 50. Petitioner's position was thus categorized as "Director III, CIIS" and he discharged the
function and duties of said office.
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2003-29275 October 6, 2011 55
Mendoza was temporarily designated as Acting District Collector, Collection District X,
Cagayan de Oro City. In his place, respondent Ray Allas was appointed as "Acting Director III"
of the CIIS. Despite petitioner's new assignment as Acting District Collector, however, he
continued to receive the salary and benefits of the position of Director III.
Mendoza received a letter from Deputy Customs Commissioner Cesar Z. Dario, informing him
of his termination from the Bureau of Customs, in view of Allas' appointment as Director III by
President Fidel V. Ramos.
Mendoza wrote the Customs Commissioner demanding his reinstatement with full back
wages and without loss of seniority rights. No reply was made
Mendoza filed a petition for quo warranto against Allas before the Regional Trial Court,
Paranaque, Branch 258. A decision was rendered granting the petition. The court found that
Mednoza was illegally terminated from office without due process of law and in violation of
his security of tenure, and that as he was deemed not to have vacated his office, the
appointment of respondent Allas to the same office was void ab initio. The court ordered the
ouster of respondent Allas from the position of Director III, and at the same time directed the
reinstatement of petitioner to the same position with payment of full back salaries and other
benefits appurtenant thereto.
Respondent Allas appealed to the Court of Appeals. On February 8, 1996, while the case was
pending before said court, respondent Allas was promoted by President Ramos to the
position of Deputy Commissioner of Customs for Assessment and Operations. As a
consequence of this promotion, petitioner moved to dismiss respondent's appeal as having
been rendered moot and academic.
The Court of Appeals granted the motion and dismissed the case accordingly. The order of
dismissal became final. On May 9, 1996, petitioner filed with the court a quo a Motion for
Execution of its decision. On July 24, 1996, the court denied the motion on the ground that
the contested position vacated by respondent Allas was now being occupied by respondent
Godofredo Olores who was not a party to the quo warranto petition.
Petitioner filed a special civil action for certiorari and mandamus with the Court of Appeals
questioning the order of the trial court. On November 27, 1997, the Court of Appeals
dismissed the petition.
ISSUE
WON Motion for Execution of the quo warranta case lies against Olores?
HELD/RATIO
NO. What is quo warranto? A demand made by the state upon some individual or corporation to
show by what right they exercise some franchise or privilege appertaining to the state which,
according to the Constitution and laws of the land, they cannot legally exercise except by virtue of a
grant or authority from the state.
A petition for quo warranto is a proceeding to determine the right of a person to the use or
exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not
well-founded, or if he has forfeited his right to enjoy the privilege.
Who may institute quo warrranto proceedings?
The action may be commenced for the Government by the Solicitor General or the fiscal
against individuals who usurp a public office, against a public officer whose acts constitute a
ground for the forfeiture of his office, and against an association which acts as a corporation
without being legally incorporated. The action may also be instituted by an individual in his
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 56 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

own name who claims to be entitled to the public office or position usurped or unlawfully
held or exercised by another.
What is the scope of judgment in a quo warranto case?
Ordinarily, a judgment against a public officer in regard to a public right binds his successor in
office. This rule, however, is not applicable in quo warranto cases. A judgment in quo
warranto does not bind the respondent's successor in office, even though such successor may
trace his title to the same source. This follows from the nature of the writ of quo warranto
itself. It is never directed to an officer as such, but always against the personto determine
whether he is constitutionally and legally authorized to perform any act in, or exercise any
function of the office to which he lays claim.
In the case at bar, the petition for quo warranto was filed solely against respondent Allas.
What was threshed out before the trial court was the qualification and right of Mendoza to
the contested position as against Ray Allas, not against Godofredo Olores.
Mendoza has apprised this Court that he reached the compulsory retirement age of 65 years
on November 13, 1997. Reinstatement not being possible, he now prays for the payment
of his back salaries and other benefits from the time he was illegally dismissed until finality of
and benefits. He was merely appointed to the subject position by the President of the
Philippines in the exercise of his constitutional power as Chief Executive. Neither can the
Bureau of Customs be compelled to pay the said back salaries and benefits of petitioner. The
Bureau of Customs was not a party to the petition for quo warranto.
ISSUE
WON Romualdez-Yap has the right to be reinstated.
HELD/RATIO
NO. Reorganization was valid. No bad faith may be imputed on the part of the bank. The fact that
the office was restored four years later is only becomes its only then that the bank became
commercially viable again.
A person claiming to be entitled to a public office or position usurped or unlawfully held or
exercised by another may bring an action for quo warranto (Rule 66, Sec. 6, Rules of Court).
The petitioner therein must show a clear legal right to the office allegedly held unlawfully by
another.
When should action for quo warranto be brought? An action for quo warranto should be
brought within 1 year after ouster from office; the failure to institute the same within the
reglementary period constitutes more than a sufficient basis for its dismissal since it is not
proper that the title to a public office be subjected to continued uncertainty. An EXCEPTION
to this prescriptive period lies only if the failure to file the action can be attributed to the acts
of a responsible government officer and not of the dismissed employee.
Restoring petitioner to her previous position with backwages would be unjust enrichment to
her, considering that she had abandoned or showed lack of interest in reclaiming the same
position when the bank was not yet fully rehabilitated and she only insisted on reinstatement
in August 1989 or 2 years after her alleged unjustified separation.

ROMUALDEZ-YAP V. CSC | Padilla, 1993

FACTS
Conchita Romualdez-Yap started working with the Philippine National Bank on 20 September
1972 as special assistant with the rank of Second Assistant Manager assigned to the office of
the PNB President.
After several promotions, she was appointed in 1983 Senior Vice President assigned to the
Fund Transfer Department. Starting 1 April 1986 up to 20 February 1987, petitioner filed
several applications for leave of absence (due to medical reasons) which were duly approved.
While she was on leave, Executive Order No. 80 (Revised Charter of the PNB) was approved
on 3 December 1986. Said executive order authorized the restructure/reorganization and
rehabilitation of PNB. Pursuant to the reorganization plan, the Fund Transfer Department was
abolished and its functions transferred to the International Department. Consequently,
petitioner was notified of her separation from the service in a letter dated 30 January 1987.
Petitioner's first recorded appeal to the Civil Service Commission questioning her separation is
a letter dated 4 August 1989. Then CSC Chairman Samilo N. Barlongay upheld the validity of
her separation from the service.
The CSC denied the motion for reconsideration. CSC mentioned that it should be noted that
granting arguendo that movant Yap's termination from the service was tainted with bad faith,
she however, is now barred from assailing the same as she did not seasonably assert her right
thereto.
Records show that she was separated from PNB on February 16, 1987 and it was only in 1989
or about 2 years thereafter when she brought this matter to this Commission. By her inaction
in questioning her termination within a period of one year, she is considered to have
acquiesced to her separation from the service and abandoned her right to the position."

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Ma. Jessa M. Alvarez
BAYBAY WATER DISTRICT V. COA | Mendoza, 1999
FACTS
The Resident Auditor of the BWD conducted an audit of its 1994 accounts. In the course of
the audit, the auditor disallowed payments of per diems in excess of those authorized by the
Local Water Utilities Administration (LWUA) and P. D. No. 198, RATA (representation and
transportation allowance) and rice allowances granted to the members of the board of
directors of the BWD, as well as duplication of claims for cash gifts as part of the Christmas
bonus of the general manager and travelling allowance of the officers of the BWD.
The members of the board, petitioners, and then General Manager Francis H. P. Militante, the
officers who had approved the release of these benefits, were served with notices of
disallowance.
Petitioners asked for reconsideration, but the Resident Auditor denied their request on the
ground that the disallowance had become final and executory. Instead, she advised them to
make their appeal to the Commission on Audit.
The BWD at first appealed to the COA Regional Office No. VIII at Tacloban City, which affirmed
the findings of the Resident Auditor of Baybay, Leyte, and then to the Commission on Audit.
The Commission rendered a decision, affirming the decision of the Director COA Regional
Office No. VIII. Petitioners filed a motion for reconsideration. Their motion was denied.
ISSUE
(1) WON members of the board of directors of water districts are entitled to receive benefits in
addition to those authorized to be paid pursuant to their charter and the guidelines of the LWUA
after the effectivity of R. A. No. 6758.
(2) WON the disallowance would impair vested rights, violate any rule against diminution of
benefits, and undermine the management prerogative of water districts.
HELD/RATIO
(1) NO. Petitioners are not entitled to receive benefits and allowances in excess of those allowed by
P.D. No. 198, the guidelines of the LWUA, and other applicable laws.
P. D. No. 198, 13, as amended by P. D. No. 768 and P. D. No. 1479, reads: Compensation.
Each director shall receive a per diem, to be determined by the board, for each meeting of the
board actually attended by him, but no director shall receive per diems in any given month in
excess of the equivalent of the total per diems of four meetings in any given month. No
director shall receive other compensation for services to the district.
Any per diem in excess of P50 shall be subject to approval of the Administration.
In the same manner, under 32 of the National Internal Revenue Code, compensation
includes fees, salaries, wages, commissions, and similar items for purposes of recognizing
taxable income. The definitions of the term compensation in these statutes are for limited
purposes only and cannot be deemed to comprehend such other purposes not specifically
included in the provisions thereof. The members of the board of directors of water districts
rights to compensation are governed by P. D. No. 198 13. Under 13, per diem is precisely
intended to be the compensation of members of board of directors of water districts. By
specifying the compensation which a director is entitled to receive and by limiting the amount
he/she is allowed to receive in a month, and, in the same paragraph, providing No director
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 57
shall receive other compensation than the amount provided for per diems, the law quite
clearly indicates that directors of water districts are authorized to receive only the per diem
authorized by law and no other compensation or allowance in whatever form.
(2) NO. Petitioners contend that the prohibition in P.D. No. 198, 13 against the grant of additional
compensation to board members must be deemed repealed by virtue of 22[10] of R. A. No. 6758,
otherwise known as the Salary Standardization Law. They contend that 13 of P.D. No. 198 is
inconsistent with provisions of the Salary Standardization Law.
R. A. No. 6758, 4 specifically provides that the Salary Standardization Law applies to
positions, appointive or elective, on full or part-time basis, now existing or hereafter created
in the government, including government-owned or controlled corporations and government
financial institutions. The Salary Standardization Law does not apply to petitioners because
directors of water districts are in fact limited to policy-making and are prohibited from the
management of the districts. P.D. No. 198, 18 described the functions of members of boards
of directors of water districts as follows: Sec. 18. Functions Limited to Policy-Making. The
function of the board shall be to establish policy. The Board shall not engage in the detailed
management of the district.
The fact that 12 and 17 of the Salary Standardization Law speak of allowances as benefits
paid in addition to the salaries incumbents are presently receiving makes it clear that the law
does not refer to the compensation of board of directors of water districts as these directors
do not receive salaries but per diems for their compensation. Even the Local Water Utilities
Administration (LWUA), in Resolution No. 313, s. 1995 on which petitioners rely for authority
to grant themselves additional benefits, acknowledges that directors of water districts are not
organic personnel and, as such, are deemed excluded from the coverage of the Salary
Standardization Law.
Petitioners contend that even before this Court declared in Davao City Water District v. Civil
Service Commission that water districts are government-owned and controlled corporations
subject to the jurisdiction of the COA, water districts had already been granting additional
benefits to members of the board of directors, with the approval of the Local Water Utilities
Administration (LWUA), and to their officers and employees and that they continued doing so
after the promulgation of the decision in that case. Petitioners contend they have thus
acquired a vested right to these benefits of which they cannot now be deprived without
violating their property rights and the rule on non-diminution of benefits. This contention too
has no merit. The erroneous application and enforcement of the law by public officers does
not estop the Government from making a subsequent correction of such errors. More
specifically, where there is an express provision of law prohibiting the grant of certain
benefits, the law must be enforced even if it prejudices certain parties due to an error
committed by public officials in granting the benefit. As already stated, P.D. No. 198 expressly
prohibits the grant of compensation other than the payment of per diems, as determined by
the LWUA pursuant to P. D. No. 198, to directors of water districts. Practice, no matter how
long continued, cannot give rise to any vested right if it is contrary to law.
Petitioners invoke management prerogative to justify the grant of allowances and other
benefits to both the board of directors of BWD and its officers and employees. With respect
to the board of directors, management prerogative refers to the right of an employer to
regulate all aspects of employment, such as the freedom to prescribe work assignments,
working methods, processes to be followed, regulation regarding transfer of employees,
supervision of their work, lay-off and discipline, and dismissal and recall of work. Clearly, the
existence of such right presupposes the existence of an employer-employee relationship.
BWD board of directors are not employees of BWD. Their function, as defined by P. D. No.
198, is limited to policy-making, implying that their relationship to the water district is more
PROF. GISELLA N. DIZON-REYES
 58 Ma. Jessa M. Alvarez 2003-29275
fiduciary than that of employer-employee. Moreover, the right of directors of water districts
to the payment of compensation is expressly provided for in P.D. No. 198, thus pre-empting
the exercise of any discretion by the water districts.
With respect to the officers and employees of BWD, it has been held that the terms and
conditions of employment of government employees are governed by law. Thus, the exercise
of management prerogative by government corporations is limited by the provisions of the
laws applicable to them. The cash gift granted to the general manager as part of his
Christmas bonus was in excess of that authorized by R. A. No. 6686. It cannot be justified by
the exercise of management prerogative as it is contrary to law. Finally, the disallowance of
the duplication of claims for transportation allowance does not fall under management
prerogative as this does not pertain to the power of management to determine the terms and
conditions of employment but pertains to whether or not the claims are properly accounted
for.
RODRIGO V. SANDIGANBAYAN | Kapunan, 1999
FACTS
Conrado B. Rodrigo and Reynaldo G. Mejica are the Mayor and Municipal Planning and
Development Coordinator, respectivley, of San Nicolas, Pangasinan, while petitioner
Alejandro A. Facundo is the former Municipal Treasurer of the same municipality.
The Muicipality of San Nicolas, represented by Mayor Rodrigo, entered into an agreement
with Philwood Construction, represented by Larry Lu, for the electrification of Barangay
Cabolan, San Nicolas, for the sum of P486, 386.18. Mejica, the Planning and Development
Coordinator of San Nicolas, prepared an Accomplishment Report stating that the Caboloan
Power Generation project was 97.5% accomplished.
Said report was supposedly approved by mayor Rodrigo and confirmed by Larry Lu. On the
basis of said report, payment of P452, 825.53 was effected by the Municipal Treasurer,
petitioner Facundo, to Philwood Construction.
Pettitioners received a Notice of Disallowance dated 21 June 1993 from the Provincial Auditor
of Pangasinan, Atty. Agustin Chan, Jr., who found that as per COA (Commission on Audit)
evaluation of the electrification project, only 60.0171% of the project (equivalent to P291,
915.07) was actually accomplished.
The Provincial Auditor thus disallowed the amount of P160, 910.46. Petitioners requested the
Provincial Auditor to lift the notice of disallowance and to re-inspect the project. The
Provincial Auditor, however, allegedly did not act on petitioners' requests.
Provincial Auditor filed a criminal complaint for estafa before the Ombudsman against
petitioners. Likewise impleaded were Larry Lu and Ramil Ang, President and General
Manager, and Project Engineer, respectively, of Philwood Construction.
Acting Ombudsman Francisco Villa approved the filing of an information against petitioners
for violation of Section 3 (e) of Republic Act No. 30196 [The Anti-Graft and Corrupt Practices
Act.] before the Sandiganbayan.
Petitioners filed a motion for reinvestigation before the Sandiganbayan. The Sandiganbayan
granted said motion. Office of the Special Prosecutor issued a memorandum recommending
that the charges against petitioners be maintained.
The Ombudsman approved said memorandum. Petitioners thereafter filed before the
Sandiganbayan a motion to quash the information. They instead faulted the Provincial Auditor
for instituting the complaint against them notwithstanding the pendency of their opposition
to the notice of disallowance.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
The Sandiganbayan denied said motion. The prosecution moved to suspend petitioners
pendente lite. Petitioners opposed the motion on the ground that the Sandiganbayan lacked
jurisdiction over them. In a Resolution, the Sandiganbayan ruled that it had jurisdiction over
the petitioners and ordered the suspension of petitioners and ordered the suspension of
petitioners pendente lite. Petitioners thus filed before this Court the instant petition for
certiorari under Rule 65.
ISSUE
WON Mayors (taking into consideration the meager salary they actually receive) are within the
jurisdiction of the SB.
Ratio:
YES. With the advent of the new Constitution, and in compliance with Section 5, Article IX-C,
Congress enacted R.A. No. 6758. Section 2 thereof declares it the policy of the State to provide
equal pay for substantially equal work and to base differences in pay upon substantive differences
in duties and responsibilities, and qualification requirements of the positions.
To give life to this policy, as well as the constitutional prescription to (take) into account the
nature of the responsibilities pertaining to, and the qualifications required for the positions
of government officials and employees, Congress adopted the scheme employed in P.D. No.
985 for classifying positions with comparable responsibilities and qualifications for the
purpose of according su ch positions similar salaries.
This scheme is known as the Grade which as defined in PD 985 includes all classes of
positions which, although different with respect to kind or subject matter of work, are
sufficiently equivalent as to level of difficulty and responsibilities and level of qualification
requirements of the work to warrant the inclusion of such classes of positions within one
range of basic compensation.
The Grade is therefore a means of grouping positions sufficiently equivalent as to level of
difficulty and responsibilities and level of qualification requirements of the work so that they
may be lumped together in one range of basic compensation.
Congress delegated the rest of this tedious task (of fixing Salary Grades) to the DBM, subject
to the standards contained in R.A. No. 6758, by authorizing the DBM to determine the
officials who are of equivalent rank to the foregoing officials, where applicable, and to assign
them the same Salary Grades subject to a set of guidelines found in said section.
For positions below those mentioned under Section 8, Section 9 directs the DBM to prepare
the Index of Occupational Services guided by (a) the Benchmark Position prescribed in
Section 9, and (b) the following factors: (1) the education and experience required to perform
the duties and responsibilities of the position; (2) nature and complexity of the work to be
performed;
the kind of supervision received; (4) mental and/or physical strain required in the completion
of the work; (5) nature and extent of internal and external relationships; (6) kind of
supervision exercised; (7) decision-making responsibility; (8) responsibility for accuracy of
records and reports; (9) accountability for funds, properties and equipment; and (10)
hardship, hazard and personal risk involved in the job.
Pursuant to such authority, the DBM drafted the 1989 Index of Occupational Services,
Position Titles and Salary Grades, later revised in 1997. In both versions, the position of
Municipal Mayor was assigned a Salary Grade 27.
- That petitioner received a salary less than that prescribed for such Grade is explained by
Sections 10 and 19 (b) of R.A. No. 6758. - Thus, a local government officials actual
salary may be less than what the Salary Schedule under Section 7 prescribes, depending on
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
the class and financial capability of his or her respective local government unit. This
circumstance, however, has no bearing on such officials Grade. As the foregoing
discussion shows, on officials salary is determined by the Grade accorded his position, and
ultimately by the nature of his position the level of difficulty and responsibilities and level of
qualification requirements of the work. To give credence to petitioners argument that Mayor
Rodrigos salary determines his Grade would be to misconstrue the provisions of R.A. No.
6758, and ignore the constitutional and statutory policies behind said law.
TEJADA V. DOMINGO | Davide, 1992
FACTS
Republic Act No. 6758, otherwise known as the Compensation and Position Classification Act
of 1989, Section 18 reads:
SECTION 18. Additional Compensation of Commission on Audit Personnel and of Other
Agencies. In order to preserve the independence and integrity of the Commission on Audit
(COA), its officials and employees are prohibited from receiving salaries, honoraria, bonuses,
allowances or other emoluments from any government entity, local government unit, and
government-owned and controlled corporations, and government financial institutions,
except those compensation paid directly by the COA out of its appropriations and
contributions.
Government entities, including government-owned or controlled corporations including
financial institutions and local government units are hereby prohibited from assessing or
billing other government entities, government-owned or controlled corporations including
financial institutions or local government units for services rendered by its officials and
employees as part of their regular functions for purposes of paying additional compensation
to said officials and employees.
The memorandum of the respondent dated 24 August 1989, the pertinent portion of which
reads:
". . . Thus effective July 1, 1989, the salaries, allowances and other emoluments to be received
by COA officials and employees, regardless of station or assignment, are only those that are
paid directly by COA out of its own appropriations and contributions.
Henceforth, the continued payment by any other government entity, whether in the national,
local or corporate sector, to any COA official or employee of such compensation, including
those incorporated in the computerized payroll, would no longer have legal basis.
Accordingly, in order not to delay the processing of the salary payroll of all COA officials and
employees for September, 1989, all such additional emoluments will be deleted in the
computation of the said payroll."
Petitioners Roseo U. Tejada and Radito C. Ching are senior clerks of the COA assigned to the
auditing units of the Philippine National Bank (PNB) and the Central Bank (CB), respectively.
Before the effectivity of R.A. No. 6758, Tejada's gross monthly compensation was P3,673.20
while Ching's was only P3,134.00. Only the basic salary and the cost of living allowance, in the
total sum of P2,323.00, were due each of them as senior clerks in the COA. The other benefits
were voluntarily given to them by the PNB and the CB, respectively.
Disagreeing with the respondent's stand, petitioners, together with other COA employees,
sent to the former a letter-request, 10 dated 27 September 1989, asking that the order for
the deletion from the COA Centralized or Special Payroll of their allowances, fringe benefits
and other emoluments, be reconsidered, and "be restored or at least considered in the
determination of their respective compensation rates as of 1 July 1989, so that they will not
suffer any salary deduction when the standardized salary rates are finally implemented."
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 59
On 27 October 1989, respondent issued another memorandum denying, in effect, the letter-
request. As a consequence, each of the petitioners presently receive the reduced salary of
P2,323.00.
ISSUE
WON under R.A. No. 6758 COA personnel may still be allowed to receive from any government
agency, local or national, including government-owned or controlled corporations and government
financing institutions, other allowances, emoluments and fringe benefits over and above their
legally set salaries and allowances as COA employees.
HELD/RATIO
NO. Petitioners assume that their gross compensation includes the extra emoluments given by the
GOCCs to which they are assigned, that Sections 12 and 17 of the Act grant them vested rights to
such extra emoluments and that they were directly paid by the COA out of its appropriations and
contributions.
Historical background of the law
Prior to the enactment of Presidential Decree No. 1445 (Government Auditing Code of the
Philippines), all officials and employees of the COA assigned to, inter alia, GOCCs, received
their salaries, allowances, additional compensation, emoluments and other fringe benefits
directly from such GOCCs. This practice was not deemed effective enough to enhance the
independence and protect the integrity of the COA. Thus, with the end in view of insulating
these COA officials and employees, particularly the auditors, from unwarranted influence,
thereby preserving the independence and integrity of the COA, PD No. 1445 expressly
mandates that the salaries and other forms of compensation of the personnel of the COA
shall follow a common position classification and compensation plan regardless of agency
assignment and shall be subject to P.D. No. 985; and that all officials and employees thereof,
including its representatives and support personnel, shall be paid their salaries, emoluments
and allowances directly by the COA out of the latter's appropriations and contributions, which
shall be considered as part of its operating expenses to be included in the annual
appropriations law, but funded from the assessments made upon, or from contributions of
the GOCCs. It directs GOCCs to appropriate in their respective budgets and remit to the
National Treasury an amount at least equivalent to the appropriation for the salaries and
allowances of the representatives and staff of the Commission during the preceding fiscal
year.
The requirement of a common position and compensation plan did away with the old practice
of agencies concerned determining the number, compensation and assignment of COA
representatives, which was both chaotic and unjust. The provision on direct payment by COA
of the salaries and other benefits was designed to instill institution loyalty.
This policy was further strengthened by Executive Order No. 19 which President Corazon C.
Aquino. Thus, the law is clear that the contributions from the GOCCs are limited to the cost of
audit services which are based on the actual cost of the audit function in the corporation
concerned plus a reasonable rate to cover overhead expenses. The actual audit cost shall
include personnel services, maintenance and other operating expenses, depreciation on
capital and equipment and out-of-pocket expenses.
Memorandum Order No. 177: limits the application of transition allowance provision
involving the grant of extra allowances and fringe benefits to their officials and employees
Corporate Budget Circular No. 15 issued by DBM to implement the MO No. 177 explicitly
excluded the personnel of COA - RA 6758 repealed Section 2 of P.D. No. 985 which
reads: . . . Provided, that notwithstanding a standardized salary system established for all
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 60 Ma. Jessa M. Alvarez 2003-29275
employees,additional financial incentives may be established by government corporations
and financial institutions for their employees to be supported fully from their corporate funds
and for such technical positions as may be approved by the President in critical government
agencies.
What can be deduced from the development of the law? A two-pronged strategy to preserve
and enhance the independence and integrity of the COA and make its personnel loyal to none
other except that institution and beholden to nobody but the people whose coffers they must
guard with dedication and responsibility. 1. The first aspect of the strategy is directed to the
COA itself. COA personnel assigned to auditing units of GOCCs or government financial
institutions can receive only such salaries, allowances or fringe benefits paid directly by the
COA out of its appropriations and contributions. The contributions referred to are the cost of
audit services earlier mentioned which cannot include the extra emoluments or benefits now
claimed by petitioners. The COA is further barred from assessing or billing GOCCs and
government financial institutions for services rendered by its personnel as part of their
regular audit functions for purposes of paying additional compensation to such personnel. 2.
The second aspect is addressed directly against the GOCCs and government financial
institutions. GOCCs and government financial institutions can no longer rely on Section 2 of
P.D. No. 985; moreover, fringe benefits and other emoluments in excess of the standardized
rates, which may be continued to be received in the concept of "transition allowance" under
Memorandum Order No. 177, in relation to Corporate Budget Circular No. 15 (15 July 1988),
apply only to the officials and employees of profit-making and financially viable GOCCs and
government financial institutions.
As to the issue at hand
The total removal of the temptation and enticement the extra emoluments provide would be
one effective way to vigorously and aggressively enforce the Constitutional provision
mandating the COA to prevent or disallow irregular, unnecessary, excessive,
extravagant,orunconscionableexpenditures,orusesofgovernmentfundsandproperties.
TheCOApersonnelassignedtotheGOCCs who have absolutely nothing to look forward to or
expect from the latter in terms of extra benefits would have no reason to accord special
treatment to the GOCCs by closing their eyes to irregular or unlawful expenditures or use of
funds or property, or conducting perfunctory audit. The law realizes that such extra benefits
could diminish the personnel's seriousness and dedication in the pursuit of their assigned
tasks, affect their impartiality and provide a continuing temptation to ingratiate themselves to
the GOCCs or government financial institutions concerned. In the end then, they would
become ineffective auditors.
As to applicability of transition allowance
Section 12 refers to the regular allowances and compensation which an instrumentality,
entity or agency of the government grants to its organic personnel. In the case of COA
personnel, such allowances and compensation cannot include allowances, fringe benefits or
extra emoluments, such as those claimed by petitioners, which are granted by GOCCs or
government financial institutions because Section 18 of the Act itself bans the COA personnel
from receiving them even as it also prohibits GOCCs and government financial institutions
from granting such benefits to personnel of other government instrumentalities, entities or
agencies assigned to them to perform the regular functions of their mother units.
As to meaning of incumbent
An incumbent is a person who is in present possession of an office; one who is legally
authorized to discharge the duties of an office. - An office is a public charge or employment,
an employment on behalf of the government in any station or public trust, not merely
transient, occasional or incidental. An incumbent then can only refer to the holder of an
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
office either by appointment or by election. Insofar as petitioners were concerned, they are
incumbents of the position to which they have been appointed senior clerks of the COA
and not of the PNB or the CB to which they are merely temporarily assigned.
SANTOS V. CA | Davide, 2000
FACTS
Santos was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office.
After the military-backed EDSA revolt, petitioner was reappointed to the same position.
Petitioner Santos optionally retired from the Judiciary under R.A. No. 910 as amended, and
received his retirement gratuity under the law for his entire years in the government service;
and five years thereafter he has been regularly receiving a monthly pension.
Petitioner re-entered the government service. He was appointed Director III of the Traffic
Operation Center of the MMA. His appointment was approved by the Civil Service
Commission (CSC). On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the
MMA and renamed it as Metropolitan Manila Development Authority (MMDA).
On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372
approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant thereto, the
MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of
separation benefits to the officials and employees of the former MMA who would be
separated as a result of the implementation of R.A. No. 7924.
On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in
view of his "voluntary option to be separated from the service" his services would
automatically cease effective at the close of office hours on 15 September 1996, and that he
would be entitled to "separation benefits equivalent to one and one-fourth (1) monthly
salary for every year of service as provided under Section 11 of the MMDA Law."
In view of some doubt or confusion as to the extent of his separation benefits, petitioner
submitted a Position Paper wherein he asserted that since the retirement gratuity he received
under R.A. No. 910, as amended, is not an additional or double compensation, all the years of
his government service, including those years in the Judiciary, should be credited in the
computation of his separation benefits under R.A. No. 7924.
The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional
Office of the CSC-NCR. Director IV Nelson Acebedo of the CSC-NCR handed down an opinion
that the payment of petitioners separation pay must be in accordance with Civil Service
Resolution No. 92-063. His motion for reconsideration having been denied, petitioner
elevated the opinion of Director Acebedo to the CSC.
CSC promulgated Resolution affirming the opinion of Director Acebedo and dismissing
petitioners appeal. Citing Chaves v. Mathay, it held that petitioner cannot be paid retirement
benefits twice - one under R.A. No. 910, as amended, and another under R.A. No. 7924 - for
the same services he rendered as MeTC Judge. He can only exercise one of two options in the
computation of his separation pay under R.A. 7924. These options are (1) to refund the
gratuity he received under R.A. No. 910, as amended, after he retired from the MeTC and get
the full separation pay for his entire years in the government, that is 9 years and 2 months
with the MeTC plus two (2) years and eight (8) months for his services as Director III in the
defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to
MMDA Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received for
his services as MeTC Judge but an equivalent amount shall be deducted from the separation
benefits due from the former MMA for his entire government service. CSC denied petitioners
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 61

motion for reconsideration. Accordingly, petitioner filed with the Court of Appeals a petition
to set aside these Resolutions.
The Court of Appeals promulgated its decision, now challenged in this case. It held that the
CSC was "correct in dismissing petitioners appeal from the opinion of Director Acebedo."

ISSUE
WON for the purpose of computing or determining petitioners separation pay under Section 11 of
R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay
should be solely confined to his services in the MMA

HELD/RATIO
YES. The case at bench is not, strictly speaking, about double pension. It is, however, about the
interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards separation
pay to those government employees who were displaced by the reorganization of the MMA into
the MMDA, which should be construed to preclude a government employee from receiving double
gratuity for the same years of service.
The last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of
one and one-fourth (1) months of salary for every year of service cannot by any stretch of
logic or imagination be interpreted to refer to the total length of service of an MMA employee
in the government, i.e., to include such service in the government outside the MMA. Since it
allows the grant of separation pay to employees who were to be displaced thereby the
separation pay can be based only on the length of service in the MMA. The displacement
amounted to an abolition of the office or position of the displaced employees, such as that of
petitioner. The rule is settled that Congress may abolish public offices. Such a power is a
consequent prerogative of its power to create public offices. However, the power to abolish is
subject to the condition that it be exercised in good faith. The separation partook of the
nature of a disturbance of compensation; hence, the separation pay must relate only to the
employment thus affected.
Petitioner himself must have realized that Section 11 does not allow the tacking in of his
previous government service. If he were convinced that it does he could have instead applied
for retirement benefits, since by adding his years of service in the MMA to his previous years
of service in the Government he could have retired under the third paragraph of Section 11.
After the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his
retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has been
receiving a monthly pension.
Second paragraph of Section 8 of Article IX-B of the Constitution (Pensions or gratuities shall
not be considered as additional, double, or indirect compensation.) simply means that a
retiree receiving pension or gratuity can continue to receive such pension or gratuity even if
he accepts another government position to which another compensation is attached.

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 62 Ma. Jessa M. Alvarez
PANIS V. CSC & VELOSO | Quiason, 1994
FACTS
The Cebu City Medical Center (CCMC), formerly known as the Cebu City Hospital, is operated
and maintained by the local government of Cebu City.
Petitioner Jaime Panis was employed as Administrative Officer of the hospital, while private
respondent Bella Veloso was Administrative Officer of the City Health Department detailed at
the said hospital.
The Mayor of Cebu City appointed Veloso to the position of Assistant Chief of Hospital for
Administration of CCMC. Panis, a candidate for the said position, promptly protested the
appointment before the Regional Office of the Civil Service Commission (CSC).
The CSC Regional Office, however, indorsed the matter to the Office of the City Mayor, which
in turn referred it to the Office of the City Attorney. The City Attorney, with the approval of
the City Mayor, dismissed petitioner's protest and upheld the appointment of Veloso. This
dismissal was affirmed by the CSC Regional Office and later on appeal, by respondent CSC.
Panis contends that: the position of Assistant Chief of Hospital for Administration was not
legally created; (2) assuming that it was, there was no qualification standard nor valid
screening procedure; and (3) the seniority and next-in-rank rules were disregarded.
ISSUE
WON Panis deserves the position more than Veloso by virtue of next-in-rank rule.
HELD/RATIO
NO. It is ironic that petitioner is personally interested in the subject position, the creation and
validity of which he himself originally questioned. Be that as it may, the "next in rank" rule
specifically applies only in cases of promotion (Medenilla v. CSC). The instant controversy, however,
involves a new office and a position created in the course of a valid reorganization.
Under the law, a vacancy not filled by promotion may be filled by transfer of present
employees in the government service, by reinstatement, by reemployment of those
separated from the service, and appointment of outsiders who have appropriate civil service
eligibility, but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec.
21 (5); Medenilla v. CSC). - It cannot be said that private respondent was an outsider.
Although directly employed by the City Health Department, she actually worked at the CCMC
prior to her appointment to the subject position. Besides, even, if she was an outsider, the
law does not prohibit
the employment of persons from the private sector so long as they have the appropriate civil
service eligibility.
Assuming nonetheless that a vacancy actually occurred that can be filled up only by
promotion, the concept of next in rank does not impose any mandatory or peremptory
requirement to appoint the person occupying the next lower position in the occupational
group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is
that if a vacancy is filled up by the promotion, the person holding the position next in rank
thereto "shall be considered for promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3)).
In other words, one who is "next in rank" to a vacancy is given preferential consideration for
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promotion to the vacant position, but it does nor necessarily follow that he alone and no one
else can be appointed. There is no vested right granted the next in rank nor a ministerial duty
imposed on the appointing authority to promote the holder to the vacant position (Santiago,
Jr. v. CSC).
An appointment, whether to a vacancy or to a newly created position, is essentially within the
discretionary power of whomsoever it is vested. Once a candidate possesses the minimum
qualities required by law, sufficient discretion, if not plenary, is granted to the appointing
authority (Medenilla v. CSC).
Veloso was detailed at the CCMC primarily to help in upgrading the level of performance of
the said hospital. She accomplished this mission by institutionalizing changes in the
management and financial reporting system of the hospital such that its income doubled in
less than two years since her detail. Private respondent's competence and her remarkable
achievement are things the appointing authority took notice of and which served as basis for
her appointment to the contested position.
DIVINAGRACIA V. STO. TOMAS | Bellosillo, 1995
FACTS
Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The
name of this office was changed to MPDC in March 1983. On 10 June 1985, Mayor Anastacio
M. Prila of Pili appointed Nacario, who was then holding the position of MBO of Pili, as MPDC.
Nacario accepted the appointment and assumed office.
Mayor Prila notified Mancita that her services as MDC would be terminated on the ground
that the office of MDC was abolished as a result of the reorganization of the local government
of Pili.
Nacario assumed her new office over the objection of Mancita who did not accept her
termination from the service and, instead, forthwith appealed to the Merit Systems
Protection Board (MSPB). MSPB declared illegal Mancita's termination from the service, ruled
that she was qualified for the position of MPDC, and ordered the new mayor, petitioner Delfin
N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with back salaries.
Divinagracia's appeal to the CSC was dismissed.
Mayor Divinagracia informed Nacario that her services as MPDC would be terminated in
compliance with the decision of the MSPB. Nacario would not accept her termination.
However, instead of going to the CSC for a possible reconsideration of CSC Resolution No. 90-
657, she filed with the Regional Trial Court (RTC) of Camarines Sur a petition for declaratory
relief and prohibition with preliminary injunction against CSC Chairperson Patricia a. Sto.
Tomas, Mayor Divinagracia, the CSC Regional Director, and Filomena Mancita. She prayed for
the annulment of CSC Resolution No. 90-657.
Nacario sent a query to the CSC asking about her status as a permanent employee of the
Municipality of Pili after she had accepted the position of MPDC. CSC opined that the
reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's
termination and since she was the former MBO, she has the right to return to the position of
MBO.
Divinagracia sought to reconsider the opinion for the reason that petitioner San Luis was
validly appointed as MBO by the Secretary of Budget and Management and that this
appointment was confirmed by the CSC. CSC denied the request and upheld Nacario's right to
security of tenure as MBO pursuant to Section 13, Rule VI of the Omnibus Rules Implementing
Book V of E.O. No. 292. This Section mandates the return of an appointment, in a chain of
promotions, to his former position once his appointment is subsequently disapproved.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
As regards her former office of MBO which Nacario vacated, several persons held it after she
had assumed office as MPDC pursuant to the appointment extended her by Mayor Prila. She
was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor Villarico who
served until 1 March 1990 when she resigned. It may be recalled that in 1988 the Local
Officers Services, which included the local budget office, was nationalized and placed under
the Department of Budget and Management (DBM). Consequently, the authority to appoint
the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of
qualified candidates for the position, the vacancy lasted until 30 September 1991. In the
meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-
charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO
of Naga City.
On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary
capacity petitioner Alexis San Luis, then Cashier II of the Department of Environment and
Natural Resources (DENR), as MBO of Pili.
On 22 June 1992, after control over the Local Government Officers Services was returned to
the local government units concerned by virtue of the Local Government Code of 1991 (R.A.
7160) as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity,
as MBO of Pili.
ISSUE
Who goes where? Who occupies what position?
HELD/RATIO
Alexis D. San Luis cannot hold on to the position of Municipal Budget Officer. On the other hand,
respondent Prescilla B. Nacario who is protected by law in her security of tenure should be
reinstated thereto.
Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292: All appointments involved in a
chain of promotions must be submitted
simultaneously for approval by the Commission. The disapproval of the appointment of a
person proposed to a higher position invalidates the promotion of those in lower positions
and automatically restores them to their former positions. However, the affected persons are
entitled to the payment of salaries for services actually rendered at a rate fixed in their
promotional appointments.
Before a public official or employee can be automatically restored to her former position,
there must first be a series of promotions; second, all appointments are simultaneously
submitted to the CSC for approval; and third, the CSC disapproves the appointment of a
person proposed to a higher position.
The essential requisites prescribed under Sec. 13 do not avail in the case at bench. To start
with, the movement of Nacario from the Budget Office to the Office of MPDC cannot be
considered a promotion for the term connotes an increase in duties and responsibilities as
well as a corresponding increase in salary. Conformably therewith, we find the movement of
Nacario one of lateral transfer.
A careful examination of the qualifications, powers and duties of a Budget Officer and an
MPDC provided under Secs. 475 and 4 76 of the LGC of 1991 shows that the latter office is not
burdened with more duties and responsibilities than the former. It is also interesting to note
that there was, on the contrary, a reduction in the basic salary of Nacario, from P30,505.20
per annum as Budget Officer to P27,732.00 per annum as MPDC.
Aside from the lack of a series of promotions, the other two (2) requisites are not also
present, i.e., the appointments of the parties concerned were not simultaneously submitted
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October 6, 2011 63
to the CSC for approval - the appointment (permanent) of Nacario was approved by the CSC
on 13 June 1985 while the appointment (permanent) of San Luis was approved by the CSC on
9 February 1993 - and, the ouster of Nacario from the Office of MPDC was a result of the
MSPB decision directing the reinstatement of Mancita and not because the CSC disapproved
her appointment as MPDC.
As to validity of Nacarios lateral transfer:
The submissive attitude displayed by private respondent towards her transfer is
understandable. Although Nacario was not informed of the reasons therefor she did not
complain to the mayor or appeal her case to the CSC if in fact the same was not made in the
interest of public service. For it is not common among local officials, even those permanent
appointees who are more secured and protected in their tenurial right, to oppose or question
the incumbent local executive on his policies and decisions no matter how improper they may
seem.
Nacario was the Budget Officer of Pili for almost 8 years until her transfer. She appeared to be
satisfied with her work and felt fulfilled as Budget Officer until Mayor Prila appointed her
MPDC to fill up the position, which was not even vacant at that time. It was only 7 days after
Nacario's appointment when Mayor Prila informed Mancita that her services were being
terminated. Simply put, Mayor Prila was so determined in terminating Mancita that he
conveniently pre-arranged her replacement by Nacario. Although Nacario continued to
discharge her duties, this did not discourage her from trying to regain her former position.
Undaunted, she applied with the Office of the Budget Secretary for the position of Budget
Officer upon learning that it was placed under the DBM. She was not however successful.
Citing Sta. Maria v Lopez on distinction between transfer and promotion: A TRANSFER is
a "movement from one position to another which is of equivalent rank, level and salary,
without break in service." PROMOTION is the "advancement from one position to another
with an increase in duties and responsibilities as authorized by law, and is usually
accompanied by an increase in salary" . . . A transfer that results in promotion or demotion,
advancement or reduction or a transfer that aims to "lure the employee away from his
permanent position," cannot be done without the employees' consent. For that would
constitute removal from office. Indeed, no permanent transfer can take place unless the
officer or employee is first removed from the position held, and then appointed to another
position.
Exception to the rule that unconsented transfers amount to removal: Some such transfers
can be effected without the need for charges being proffered, without trial or hearing, and
even without the consent of the employee . . . . The clue to such transfers may be found in
the "nature of the appointment." Where the appointment does not indicate a specific station,
an employee may be transferred or assigned provided the transfer affects no substantial
change in title, rank and salary . . . . Such a rule does not proscribe a transfer carried out
under a specific statute that empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the agency . . . . Neither does
illegality attach to the transfer or reassignment of an officer pending the determination of an
administrative charge against him; or to the transfer of an employee, from his assigned
station to the main office, effected in good faith and in the interest of the service pursuant to
Sec. 32 of the Civil Service Act
The unconsented lateral transfer of Nacario from the Budget Office to the Office of MPDC was
arbitrary for it amounted to removal without cause hence, invalid as it is anathema to security
of tenure. When Nacario was extended a permanent appointment on 1 August 1980 and she
assumed the position, she acquired a legal, not merely an equitable, right to the position.
Such right to security of tenure is protected not only by statute, but also by the Constitution
PROF. GISELLA N. DIZON-REYES
 64 Ma. Jessa M. Alvarez
and cannot be taken away from her either by removal, transfer or by revocation of
appointment, except for cause, and after prior notice.
Consequently, it could not be said that Nacario vacated her former position as Budget Officer
or abdicated her right to hold the office when she accepted the position of MPDC since, in
contemplation of law, she could not be deemed to have been separated from her former
position or to have terminated her official relations therewith notwithstanding that she was
actually discharging the functions and exercising the powers of MPDC.
The appointment of San Luis as Budget Officer carried with it a condition. At the back of his
appointment is inscribed the notation Sa kondisyon nasa ayos ang pagkakatiwalag sa
tungkulin ng dating nanunungkulan, which when translated means "Provided that the
separation of the former incumbent is in order." Considering that the separation of Nacario
who was the former incumbent was not in order, San Luis should relinquish his position in
favor of private respondent Nacario. This is, of course, without prejudice to San Luis' right to
be reinstated to his former position as Cashier II of the DENR, he being also a permanent
appointee equally guaranteed security of tenure.
SANTIAGO JR. V. CSC | 1989
FACTS
Customs Commissioner Wigberto E. Taada extended a permanent promotional
appointment, as Customs Collector III, to petitioner SANTIAGO, Jr. That appointment was
approved by the Civil Service Commission (CSC), National Capital Region Office. Prior thereto,
SANTIAGO held the position of Customs Collector I.
On 26 November 1986, respondent JOSE, a Customs Collector II, filed a protest with the Merit
Systems Promotion Board against SANTIAGO's promotional appointment mainly on the
ground that he was next-in-rank to the position of Collector of Customs III.
The Board referred the protest to Commissioner Taada for appropriate action. Taada
upheld SANTIAGO's promotional appointment on the grounds, among others, that: (1) the
next-in-rank rule is no longer mandatory; (2) the protestee is competent and qualified for the
position and such fact was not questioned by the protestant; and (3) existing law and
jurisprudence give wide latitude of discretion to the appointing authority provided there is no
clear showing of grave abuse of discretion or fraud.
On 29 December 1986, respondent JOSE appealed to the Board, which, on 17 March 1987,
decided to revoke petitioner SANTIAGO's appointment and directed that respondent JOSE be
appointed in his stead.
On 15 July 1987, the Board resolved to deny SANTIAGO's Motion for Reconsideration for lack
of merit.
On 28 December 1987, respondent Commission affirmed the Board Resolutions in its own
Resolution No. 87-554. The Commission ruled that although both SANTIAGO and JOSE are
qualified for the position of Customs Collector III, respondent JOSE has far better
qualifications in terms of educational attainment, civil service eligibilities, relevant seminars
and training courses taken, and holding as he does by permanent appointment a position
which is higher in rank and salary range. It added that the Commission is empowered to
administer and enforce the merit system as mandated by the 1973 and 1987 Constitutions
and to approve all appointments, whether original or promotional, to positions in the civil
service, subject to specified exceptions, pursuant to paragraphs (a) and (h), Section 9 of the
Civil Service Law.
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ISSUE
WON the CSC erred in revoking Santiagos appointment.
HELD/RATIO
YES. Citing Taduran vs. CSC: There is no mandatory nor peremptory requirement in the Civil Service
Law that a person next-in- rank are
entitled to preference in appointment. What it does provide is that they would be among the first
to be considered for the vacancy, if qualified, and if the vacancy is not filled by promotion, the
same shall be filled by transfer or other modes of appointment.
One who is next-in-rank is entitled to preferential consideration for promotion to the higher
vacancy but it does not necessarily follow that he and no one else can be appointed. The rule
neither grants a vested right to the holder nor imposes a ministerial duty on the appointing
authority to promote such person to the next higher position. However, the appointing
authority may promote an employee who is not next-in-rank but who possesses superior
qualifications and competence compared to a next-in-rank employee who merely meets the
minimum requirements for the position.
Commissioner Ta ada actually explained the reasons behind Santiago's appointment. He said
Jose was not recommended to any promotion while Santiago, when he was appointed as Task
Force Chief was credited with seizure of millions of pesos worth of smuggled goods and was
recipient of several citations as a good customs agent.
The power to appoint is a matter of discretion. The appointing power has wide latitude of
choice as to who is best qualified for the position. To apply the next-in-rank rule peremptorily
would impose a rigid formula on the appointing power contrary to the policy of the law that
among those qualified and eligible, the appointing authority is granted discretion and
prerogative of choice of the one he deems fit for appointment.
Meram vs. Edralin inapplicable to the factual situation herein. In said case, SC affirmed the
appointment of the next-in-rank because the original appointee's appointment was made in
consideration of political, ethnic, religious or blood ties totally against the very purpose
behind the establishment of professionalism in the civil service.
True, the Commission is empowered to approve all appointments, whether original or
promotional, to positions in the civil service and disapprove those where the appointees do
not possess the appropriate eligibility or required qualification (paragraph (h), Section 9, P.D.
No. 807). However, in Luego vs. CSC, it was held that all the commission is actually allowed to
do is check whether or not the appointee possesses the appropriate civil service eligibility or
the required qualifications. If he does, his appointment is approved; if not, it is disapproved.
No other criterion is permitted by law to be employed by the Commission when it acts on, or
as the decree says, "approves" or "disapproves" an appointment made by the proper
authorities. To be sure, it has no authority to revoke the said appointment simply because it
believed that Jose was better qualified for that would have constituted an encroachment on
the discretion vested solely in the appointing authority.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
ABILA V. CSC| Feliciano, 1991
FACTS
Amado Villafuerte retired from his position as Administrative Officer IV in the Health
Department of the City Government of Quezon City.
Then Quezon City Officer-in-Charge Brigido Simon, Jr. appointed petitioner Alex Abila as
Villafuerte's successor. Petitioner Abila who had theretofore been the Acting Assistant Civil
Security Officer, Civil Intelligence and Security Department of the Quezon City Government,
assumed the Administrative Officer IV position on 2 December 1987.
A day earlier, Florentina Eleria, Administrative Officer III of the Health Department, Quezon
City Government, filed a protest with the Merit System Protection Board ("Board") in respect
of Abila's appointment. The Board indorsed the protest to the new Quezon City Officer-in-
Charge, Reynaldo Bernardo, who rendered a decision dismissing the protest.
Eleria appealed to the Board which promulgated a decision revoking petitioner Abila's
appointment and directing the Quezon City Officer-in-Charge or Mayor to appoint private
respondent Eleria in lieu of petitioner Abila. The Board found that both petitioner Abila and
private respondent Eleria met the minimum eligibility and education requirements for
Administrative Officer IV, but ruled that respondent Eleria had the edge in terms of rank and
experience as an Administrative Officer. The Board also held that respondent Eleria was
holding a position next in rank to that of the vacancy, which circumstance, according to the
Board, under Section 4 of the Civil Service Commission Resolution No. 83-343, gave her
"promotional priority" over petitioner.
Petitioner Abila appealed to the Civil Service Commission. The Commission affirmed in toto
the Board's decision and resolution. Petitioner moved for reconsideration, without success.
Abila went to the Supreme Court on certiorari. He contends that the respondent Commission,
having verified that both petitioner and private respondent were legally qualified to fill the
vacancy, should not have proceeded to comparing the parties' qualifications and choosing the
person that it believed to be the appropriate appointee. Those functions, petitioner urges,
belong to the City Mayor as part of his appointing power and cannot be appropriated for itself
by the respondent Commission.
The Quezon City Government, represented by its elected Mayor, Brigido Simon, Jr., filed an
identical Petition with this Court, docketed as G.R. No. 92867, seeking annulment of
respondent Commission's resolution and upholding the validity of the appointment of
petitioner Abila on substantially the same grounds pleaded by the latter. The Court ordered
consolidation of the two (2) cases for their more convenient disposition.
ISSUE
WON CSC has authority to substitute its own judgment for that of the official authorized by law to
make an appointment to the government service, in the matter of weighing an appointee's
qualifications and fitness for a position, after it has been shown that the appointee possesses the
minimum qualifications prescribed for the position.
HELD/RATIO
NO. In a long line of cases, SC has held that respondent Commission has no such authority, the
power of appointment, which is essentially discretionary, being vested by law in the head of the
office concerned. The head of the office is the person on the spot. He occupies the ideal vantage
point from which to identify and designate the individual who can best fill the post and discharge
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its functions in the government agency he heads. The choice of an appointee from among those
who possess the required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of service which can best be made
by the head of the office concerned, the person most familiar with the organizational structure and
environmental circumstances within which the appointee must function.
CSC itself acknowledged that both Abila and Eleria are legally qualified for the position in
question. Having made the determination, CSC had exhausted its powers and may not act any
further except to affirm the validity of Abilas appointment. More specifically, it had no
authority to revoke his appointment because it believed that Eleria was better qualified for
the position involved; CSCs acts in this respect constituted an encroachment upon a
discretionary authority vested by law in the Quezon City Mayor and not in the CSC.
A vacant position in the Civil Service may be filled by promotion, transfer of present
employees, reinstatement and re-employment or appointment of outsiders who have the
necessary eligibility. The next-in-rank rule invoked by CSC to justify its choice of Eleria over
Abila, applies only where a vacancy is filled by promotion, a process which denotes a scalar
ascent of an officer to another position higher either in rank or salary. A promotion involves a
situation quite different from the situation in the case at bar where the appointment of Abila
was effected through lateral transfer from a position in one department of the city
government to a position of greater responsibility in another department of the same
government.
Citing Medenilla v CSC: We have already held in cases subsequent to Millares that the next-in-
rank rule is not absolute; it only applies in cases of promotion. And even in promotions, it can
be disregarded for sound reasons made known to the next-in-rank. The appointing authority,
under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present
employees, reinstatement, reemployment, and appointment of outsiders who have
appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a
vacancy must be filled only by promotion; the appointing authority is given wide discretion to
fill a vacancy from among the several alternatives provided for by law.
Even if the vacancy here had been filled by promotion rather than by lateral transfer, the
concept of "next in rank" does not import any mandatory or peremptory requirement that
the person next in rank must be appointed to the vacancy. What Section 19 (3) of P.D. No.
807, the Civil Service Law, provides is that if a vacancy is filled by a promotion, the person
holding the position next in rank thereto "shall be considered for promotion."
Citing Santiago Jr. v CSC: One who is next-in-rank is entitled to preferential consideration for
promotion to the higher vacancy but it does not necessarily follow that he and no one else
can be appointed. The rule neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such person to the next higher
position.
MEDENILLA V. CSC | Guttierez, 1991
FACTS
Ardeliza Medenilla was a contractual employee of the Department of Public Works and
Highways (DPWH) occupying the position of Public Relations Officer II.
Medenilla was detailed as Technical Assistant in the Office of the Assistant Secretary for
Administration and Manpower Management. Pursuant to Executive Order No. 124, a
reorganization ensued within the DPWH and all the positions therein were abolished. A
revised staffing pattern was issued.
PROF. GISELLA N. DIZON-REYES
 66 Ma. Jessa M. Alvarez
Included in the revised staffing pattern is the position of Supervising Human Resource
Development Officer. Medenilla was appointed to the disputed position. Respondents
Amparo Dellosa, Rosalinda Juria and Marita Burdeos together with Matilde Angeles, Catalina
Espinas, Alicia Nercelles and Ramon Racela, all of whom are employees in the Human
Resource Training and Material Development Division, Administrative and Manpower
Management Service of the DPWH, jointly lodged a protest before the DPWH task force on
reorganization contesting the appointment of the petitioner to the position. The protestants
alleged that since they are next-in-rank employees, one of them should have been appointed
to the said position. The task force on reorganization dismissed the protest. Not satisfied, the
private respondents appealed the decision to the Civil Service Commission. The Commission
found: " xxx Indeed, RA 6656 does not preclude the appointment of contractuals to a new
staffing pattern, however, in the presence and availability of qualified permanent next-in-rank
employees in the organization, the latter has to be preferred, unless a contractual employee
possesses superior qualifications that could justify her appointment. However, in this case, we
see no superior qualifications or any special reasons for preferring Medenilla over the
protestants. xxx
thwart the natural and reasonable expectation of the officer next-in-rank to any vacant
position, to be promoted to it. As held in Millores v. Subido,
in the event of there occurring a vacancy, the officer next-in-rank must, as far as practicable
and as the appointing authority sees it in his best judgment and estimation, be promoted . . .
and that it is only in cases of promotion, where an employee other than the ranking one is
promoted, is the appointing power under duty to give 'special reason or reasons' for his
action . . ." xxx
Thus, the Commission promulgated the assailed resolution where the Commission resolved to
disapprove the promotional appointment of Ardeliza Medenilla to the position of Supervising
Human Manpower Development Officer.
The commission denied the petitioners motion for reconsideration. Hence, this petition.
ISSUE
WON CSC erred in disapproving Medenillas appointment on the grounds given above (esp. her
professional experience).
HELD/RATIO
YES. It is not disputed that the Medenilla possesses the appropriate civil service eligibility and
requisite educational background. CSC itself,
in its resolution, considered the petitioner's PD No. 907 eligibility appropriate for the position.
Medenilla, not only was a cum laude graduate from the University of the Philippines, has also
acquired plenty of experience in the field of Human Resource Development.
CSC failed to consider that in her one year and seven months experience with Guthrie-Jensen,
she was engaged in research relating to performance appraisal systems and merit promotion
systems which duties are all related to Human Resource Development. Precisely, it was
because of her experience with Guthrie-Jensen that she was detailed from January 1987 until
December 1988 in the Office of the Assistant Secretary for Administration and Manpower
Management, where she was asked to assist in human resource planning.
It can be readily seen that the petitioner possesses superior qualifications. As earlier stated,
she is a cum laude graduate of the UP. She was ranked No. 1 in the department wide training
program handled by a private firm. Two of the respondents were ranked way below while a
third did not even participate. She was commended for exemplary performance as facilitator
during the Second Congress of Women in Government. She received the highest grades from
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DLSU in her MBA studies. She helped draft the human resource program for the entire DPWH.
Inspite of her being a new employee, she was assigned to conduct seminars on Performance
Appraisal Systems and on Management by Objectives and Results for the DPWH. She was
precisely drafted from a private firm to assist in human resource planning for the DPWH. Her
work is apparently highly satisfactory as the top administrators of the DPWH not only
appointed her but have asked the respondent Commission to validate the appointment.
Old employees should be considered first. But it does not necessarily follow that they should
then automatically be appointed. The preference given to permanent employees assumes
that employees working in a Department for longer periods have gained not only superior
skills but also greater dedication to the public service. This is not always true and the law,
moreover, does not preclude the infusion of new blood, younger dynamism, or necessary
talents into the government service. If, after considering all the current employees, the
Department Secretary cannot find among them the person he needs to revive a moribund
office or to upgrade second rate performance, there is nothing in the Civil Service Law to
prevent him from reaching out to other Departments or to the private sector provided all his
acts are bona fide for the best interest of the public service and the person chosen has the
needed qualifications. In the present case, there is no indication that the petitioner was
chosen for any other reason except to bring in a talented person with the necessary
eligibilities and qualifications for important assignments in the Department.
The reason behind P.D. No. 907 (which grants civil service eligibility to college graduates with
at least cum laude honors) of attracting honor graduates into the public service would be
negated if they always have to start as Clerk I and wait for hundreds of deadwood above them
to first go into retirement before they can hope for significant and fulfilling assignments.
Commission's reliance on the dictum in Millares v. Subido is misplaced. The ruling in Millares
has already been superseded by later decisions. We have already held in cases subsequent to
Millares that the next-in-rank rule is not absolute; it only applies in cases of promotion. And
even in promotions, it can be disregarded for sound reasons made known to the next-in-rank.
The appointing authority, under the Civil Service Law, is allowed to fill vacancies by
promotion, transfer of present employees, reinstatement, reemployment, and appointment
of outsiders who have appropriate civil service eligibility, not necessarily in that order.
The next-in-rank rule must give way to the exigencies of the public service. The intent of the
Civil Service Laws not merely to bestow upon permanent employees the advantage arising
from their long employment but most specially, it is to foster a more efficient public service.
Any other factor must, therefore, yield to the demand for an effective government, which
necessarily entails the appointment of competent, qualified and proficient personnel.
LUSTERIO V. IAC | Davide, 1991
FACTS
The Office of Supply Officer III (Division of Quezon) was rendered vacant when Epifanio
Pareo the incumbent, retired. The plaintiff Serafin Palomar was appointed to the position of
Supply Officer III by Mr. Lorenzo G. Caesar, Director of the Ministry of Education and Culture
(MEC), Region IV, which appointment was 'permanent' but qualified by the condition that it is
'subject to the final outcome' of the protest filed by Jose Lusterio.
The MEC denied LUSTERIO'S protest. LUSTERIO filed a motion for reconsideration with the
MEC which motion for reconsideration was also denied. LUSTERIO filed an appeal to the
Office of the President.
The Office of the President rendered a decision rescinding the appointment of Palomar in
favor of Lusterio. PALOMAR submitted a petition for reconsideration of the decision with the
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 67

Legal Affairs Office of the Office of the President the Division Superintendent of Schools, Mrs. Section 3 of Rule V on Promotions of the Civil Service Rules on Personnel Actions and Policies:
Lourdes Veluz referred the appointment of LUSTERIO as Division Supply Officer III vice A next-in-rank position refers to a position which, by reason of the hierarchical arrangement
PALOMAR whose appointment was rescinded in favor of LUSTERIO by virtue of the decision of of positions in the Department or agency or in the government, is determined to be in the
the Office of the President, to the Assistant Director, Officer-in-Charge, Ministry of Education nearest degree of relationship to a higher position taking into account the following: (1)
and Culture, Region V. organization structure/s as reflected in the approved organizational chart/s; (2) classification
The said appointment was received by the Civil Service Commission and approved as and/or functional relationships; (3) salary and/or range allocation; and (4) geographical
'permanent' subject to no condition. Defendant LUSTERIO assumed office as Division Supply location.
Officer III. The organizational unit is not the sole criterion. And even if We have to further concede that
The motion for reconsideration by plaintiff PALOMAR was dismissed for lack of merit by the Lusterio then occupied a next-in-rank position, that fact alone did not make it mandatory for
Office of the President. the appointing power to appoint him to the contested position.
The trial court ruled that pursuant to Section 19(3) of P.D. No. 807 (The Civil Service Decree) Section 19(3) of PD 807 (Civil Service Decree) merely provides that when a vacancy occurs in a
and the Rules on Personnel Actions and Policies promulgated by the Civil Service Commission position in the second level of the Career Service, the employee in the government service
on next-in-rank positions, the position of Supervisory Fiscal Clerk previously occupied by who occupies the next lower positions in the occupational group under which the vacant
private respondent, is immediately next to the contested position in the organizational chart position is classified and in other functionally related occupational groups and who are
of the Division of Quezon for the Administrative Staff. competent, qualified and with the appropriate civil service eligibility, "shall be considered for
Upon the other hand, petitioner, prior to his appointment to the contested position, was promotion". It does not say "shall be promoted".
Supply Officer I in Lucban National High School in Lucban, Quezon; consequently, he does not
belong to the organizational unit where the vacancy exists.
Circular No. 5, Series of 1963 of the then Ministry of Education, Culture and Sports provides
that "for reasons of equity and morale, fully qualified employees within the organizational
unit, all circumstances being equal, should have first call upon promotional opportunities,"
Unable to accept that decision, petitioner herein appealed to the then Intermediate Appellate
Court. He asks said Court to overturn the decision of the trial court because it erred in
declaring valid, effective, and in accordance with law the appointment of private respondent
as Supply Officer III the Intermediate Court rules that the appeal has no merit and sustains the
findings and conclusion of the trial court that private respondent has a better right to the
contested position than petitioner because the latter, unlike the former, does not belong to
the organizational unit where the vacancy exists. It further holds that private respondent
possesses the requisite educational competence and civil service eligibility, has completed in-
service training courses on supply and property management and had performed the duties
of Supply Officer III from April 1977 up to October 1979.
Petitioner now seeks to set aside the decision of the Intermediate Appellate Court.

ISSUE
WON CSC and TC erred in revoking Lusterios appointment in favor of the purported next-in-rank
Palomar.

HELD/RATIO
YES. Palomar was a Supervising Fiscal Clerk before his appointment to the contested position. His
functions then covered an aspect of supply activities, i.e., the fiscal requirements of supplies and
materials for the division office. Moreover, he had completed in service courses in supply and
property management. As correctly ruled by the Secretary of Education and Culture, and held by
the trial court and the respondent IAC, Palomar meets all the requirements for the position of
Supply Officer III. Even if We grant for the sake of argument that Lusterio is also qualified, the
appointing authority had the discretion to determine who of those qualified should be appointed to
the contested position.
It was an error for both courts below to restrictively limit the concept of next-in-rank to the
organizational unit where the vacancy occurs, which is, in this case, the division office of
Quezon and more specifically, to the Administrative Staff therein.

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 68 Ma. Jessa M. Alvarez 2003-29275
b. Transfer
Movement from one position to another which is of equivalent rank, level or salary
without break in service.
May be imposed as an administrative remedy.
GENERAL RULE: If UNconsented = violation security of tenure.
EXCEPTIONS:
o Temporary Appointee
o Career Executive Service Personnel whose status and salaries are based on
ranks ( positions)
PEOPLE V. REYES | Puno, 1995
FACTS
Buenaventura C. Maniego, Collector of Customs of the Bureau of Customs, Manila
International Container Port (MICP), issued MICP Customs Personnel Order No. 21-92 dated
January 10, 1992 assigning Jovencio D. Ebio, Customs Operation Chief, MICP to the Office of
the Deputy Collector of Customs for Operations as Special Assistant. The actual transfer of
Ebio was made on January 14, 1992.
Ebio filed with the COMELEC a letter-complaint protesting his transfer. Ebio claimed that his
new assignment violated COMELEC Resolution No. 2333 and section 261 (h) of B.P. Blg. 881,
the Omnibus Election Code, which prohibit the transfer of any employee in the civil service
120 days before the May 11, 1992 synchronized national and local elections.
COMELEC filed an information with the Regional Trial Court charging Maniego with a
violation of Section 261 (h) of B. P. Blg. 881.
Maniego moved to quash the information on the ground that the facts alleged do not
constitute an offense. He contended that the transfer of Ebio on January 14, 1992 did not
violate B.P. Blg. 881 because on that date the act was not yet punishable as an election
offense. It purportedly became punishable only on January 15, 1992, the date of effectivity of
COMELEC Resolution No. 2333 implementing Section 261 (h) of B.P. Blg. 881.
RTC: granted Maniego's motion to quash.
ISSUE
(1) WON the transfer of Ebio is made during the election period.
(2) WON Ebios transfer is valid.
HELD/RATIO
(1) YES. The Constitution has fixed the election period for all elections to commence ninety (90)
days before the day of election and end thirty (30) days thereafter, unless otherwise fixed in
special cases by the COMELEC. For the May 11, 1992 synchronized national and local
elections, the COMELEC fixed a longer election period of one hundred twenty (120) days
before the scheduled elections and thirty (30) days thereafter. It issued Resolution No. 2314
on September 23, 1991 primarily adopting therein a calendar of activities. In the process, it
designated January 12, 1992 to June 10, 1992 as the election period.
Resolution No. 2333 was published in the January 8, 1992 issues of Malaya and the Manila
Standard. Hence, it took effect on January 15, 1992, the seventh day after its publication.
(2) YES. It ought to be immediately obvious that Section 261 (h) of B.P. Blg. 8815 does not per se
outlaw the transfer of a government officer or employee during the election period. To be
5
Sec. 261. Prohibited acts. The following shall be guilty of any election offense:
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
sure, the transfer or detail of a public officer or employee is a prerogative of the appointing
authority. It is necessary to meet the exigencies of public service sometimes too difficult to
perceive and predict. Without this inherent prerogative, the appointing authority may not be
able to cope with emergencies to the detriment of public service. Clearly then, the transfer or
detail of government officer or employee will not be penalized by Section 261 (h) of B.P. Blg.
881 if done to promote efficiency in the government service.
Further, Section 2 of Resolution No. 2333 provides that the COMELEC has to pass upon the
reason for the proposed transfer or detail, viz: "Any request for authority to make or cause
any transfer or detail of any officer or employee in the civil service, including public school
teachers, shall be submitted in writing to the Commission indicating therein the office and
place to which the officer or employee is proposed to be transferred or detailed, and stating
the reason therefor.
Prescinding from this predicate, two (2) elements must be established to prove a violation of
Section 261 (h) of B.P. Blg. 881, viz: (1) The fact of transfer or detail of a public officer or
employee within the election period as fixed by the COMELEC, and (2) the transfer or detail
was effected without prior approval of the COMELEC in accordance with its implementing
rules and regulations.
Before the effectivity of these rules, it cannot be said that Section 261 (h) of B.P. Blg. 881, a
penal provision, was already enforceable. Needless to state, Maniego could not be charged
with failing to secure the approval of the COMELEC when he transferred Ebio on January 14,
1992 as on that day, the rules of the COMELEC on the subject were yet in existent.
VINZONS-CHATO V. NATIVIDAD | Mendoza, 1995
FACTS
President Fidel V. Ramos issued E.O. No. 132, entitled "Approving the Streamlining of the
Bureau of Internal Revenue."
BIR Commissioner Liwayway Vinzons R. Chato issued Revenue Administrative Order No. 5-93,
"Redefining the areas of jurisdiction and renumbering of regional district offices," which
subdivided the nineteen revenue regions into 115 revenue districts and renumbered the
resulting RDOs and abolished the previous classification treating all RDOs as the same class.
CIR, citing the "exigencies of the revenue service," issued Revenue Travel Assignment Order
No. 80-93 (RTAO 80-93), directing ninety revenue district officers to report to new
assignments in the redesignated and renumbered revenue district offices nationwide.
Among those affected was private respondent Salvador Nori Blas, who was ordered to report
to Revenue District No. 14 in Tuguegarao, Cagayan. In turn, petitioner Solon B. Alcantara was
ordered to report to Blas' former post in San Fernando, Pampanga, now known as Revenue
District No. 21.
Blas wrote Commissioner requesting a reconsideration. He felt that (1) his accomplishments
and performance had not been taken into consideration in the reshuffle; (2) that his transfer
from what he thought is the larger revenue district of San Fernando, Pampanga to the smaller
district in Tuguegarao, Cagayan was a demotion (3) He claimed that he was among the top
ten examiners of Revenue Region No. 5 for six consecutive years and that he was a model
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. Any public official who makes
or causes any transfer or detail whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon prior approval of the Commission.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
employee in 1981; and (4) he was a diabetic and that he needed to be near his doctor, and
could not endure long travels.
Blas letter was unacted upon, so he filed with the RTC a verified complaint for "Injunction
with Preliminary Injunction and Temporary Restraining Order" against the Commissioner and
Alcantara. (1) the transfer was without his consent would cause his "dislocation" and
demotion or "a diminution in rank, status, and span of duties and responsibilities." He invoked
E.O. No. 132.6
RTC: issued a temporary restraining and granted the writ of preliminary injunction
Commissioner Vinzons-Chatos arguments: (1) Blas did not have any vested right to his since
he was only designated to the post and not appointed; (2) the transfer was made pursuant to
E.O. No. 132, and this being so, it is non-disciplinary which does not require the employee's
consent; (3) transfer was not a demotion, since there was no reduction in duties,
responsibilities, status, rank, or salary; (4) failure to exhaust all administrative remedies; and
(5) issue is moot and academic since Alcantara took his post as revenue district officer before
the action was filed.
Blas arguments: (1) does not claim that he has any vested right, all that he asserts is his
constitutional right to protection from a demotion not for cause, and without his consent; (2)
his transfer constitutes a demotion because his span of control in terms of jurisdiction and
personnel has been considerably diminished; (3) denies that Alcantara assumed office as
revenue district officer of Pampanga because he never relinquished his position.
ISSUE
WON Blas transfer is valid.
HELD/RATIO
YES. His transfer to the Tuguegarao revenue district did not really entail any diminution in rank,
salary, status and responsibilities. His claim that the Tuguegarao revenue district is smaller than
that in San Fernando, Pampanga has no basis because, as already noted, the classification of RDOs'
into Class A-1, A, B, C and D has been abolished and all RDO's are now considered to be of the same
class.
Blas transfer is part of a nationwide reshuffle or reassignment of revenue district officers
designed to improve revenue collection. More specifically the objective of the reassignment,
as stated in Revenue Administrative Order No. 5-93, is "to strengthen the decentralization of
the Bureau's set-up for the purpose of maximizing tax assessments and revenue collections,
intensifying enforcement of revenue laws and regulations and bringing the revenue service
closer to the taxpaying public."
His new assignment should be considered by him a challenge to his leadership as revenue
district officer rather than a demotion or a penalty. In Department of Education, Culture and
Sports vs. Court of Appeals, MEC Circular No. 26, Series of 1972s purpose was explained. This
circular refers to the policy of the Ministry of Education that principals, district supervisors,
academic supervisors, general education supervisors, school administrative officers and
6 2. Redeployment of Personnel. The redeployment of officials and other personnel on
the basis of the streamlining embodied in this Executive Order shall not result in the dislocation of
existing personnel nor in the diminution of rank and compensation and shall take into account
pertinent Civil Service Law and rules.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 69
superintendent are to be transferred upon completion of five (5) years of service in one
station. Such policy was based on the experience that when school officials have stayed long
enough in one station, there is a tendency for them to become stale and unchallenged by new
situations and conditions, and that some administrative problems accumulate for a good
number of years.
Further, any employee who questions the validity of his transfer should appeal to the Civil
Service Commission.
VINZONS-CHATO V. ZENOROSA | Buena, 2000
FACTS
BIR Commissioner Liwayway Vinzons-Chato issued Revenue Travel Assignment Order (RTAO)
No. 8 95. Pursuant thereto, Estrella V. Martinez was reassigned from Assistant Revenue
District Officer of RDO No. 34 to Assistant Division Chief. Assigned in her place, was Jacinto T.
Marcelo.
Martinez filed with the RTC, a petition for injunction with prayer for issuance of a writ of
preliminary injunction and temporary restraining order. She alleged that prior to the
questioned RTAO 8-95, the retiring Revenue Officer of RDO No. 34, Jose T. Jacalan, wrote the
BIR Commissioner endorsing and strongly recommending her as a replacement, but another
BIR employee Isidro Tecson Jr., was assigned. Because of this she filed with the Grievance
Committee of the Department of Finance a complaint for violation of Merit Promotion. The
Grievance Committee issued a resolution enjoining the BIR to strictly adhere to the
established and CSC-approved merit promotion plan. Instead of complying with the said
resolution, Chato issued the now questioned RTAO 8-95.
Martinez claims that: (1) RTAO 8-95 is tantamount to a demotion since the position she was
transferred to does not involve assessment and is totally alien to her past experience and
skills; (2) she will be dislocated since she has no experience in the collection service, in
violation of Executive Order No. 132 which prohibits the transfer of personnel resulting in
dislocation.
RTC: issued a temporary restraining order and granted the writ of preliminary injunction
enjoining the implementation of RTAO 8-95.
Petitioners argue: (1) the reassignment of revenue district officers was made pursuant to
Executive Order No. 132 for the purpose of improving revenue collection; (2) Martinez failed
to show any legal or vested right to her position since she was merely assigned thereto and
neither did she show any right to be exempted from the reorganization; and (3) Martinez
holds the appointment of Chief Revenue Officer II and, whether she be assigned to another
revenue district, revenue region or to the national office, she remains Chief Revenue Officer
II, thus, there was no demotion.
ISSUE
WON Martinezs transfer is valid.
HELD/RATIO
YES. The Commissioner of Internal Revenue is authorized to assign or reassign internal revenue
officers and employees of the BIR as the exigencies of service may require, without demotion in
rank and salary in accordance with Civil Service Rules and Regulation.
The primary reason why Martinez refuses to comply with RTAO 8-95 was because she took it
as an act of vindictiveness and reprisal on the part of the Commissioner, consequent to her
filing a complaint against the assigned RDO of RDO No. 34 Isidoro Tecson, Jr., on the basis of a
PROF. GISELLA N. DIZON-REYES
 70 Ma. Jessa M. Alvarez
prior assignment order issued by the Commissioner. Nowhere in the assignment order, RTAO
8-95, can it be gleaned that the reassignment was for the purpose of harassing private
respondent. In fact, private respondent was not the only one reassigned to a new post.
Martinez holds the appointment of Chief Revenue Officer II and such appointment will not be
altered by her subsequent reassignment. Such reassignment is not a demotion for there is no
diminution of rank, salary, status and responsibilities. It entails the prevention of familiarity
and patronage between BIR officers and taxpayers of a particular area.
c. Detail
Movement of an employee from one agency to another without the issuance of an
appointment.
Only for a limited period in case of employees occupying professional, technical and
scientific positions.
consent of the detailed employee .
If employee believes theres no justification for the detail, he may appeal the case to
CSC. Pending appeal, the decision to detail the employee shall be executory, unless
otherwise ordered by CSC
Sec. 24 (f) of PD 807: Temporary and does not involve reduction in rank, status or salary
and requires only an official order (not appointment).
REPUBLIC OF THE PHILIPPINES V. COURT OF APPEALS | Melencio-Herrera, 1990
FACTS
Luz Corpuz and Jose Lopez, Jr., were the former Director and Assistant Director, of the now
defunct Child and Youth Research Center (CYRC) of DECS. Corpuz is a Doctor of Medicine
while Lopez is a Bachelor of Laws graduate but not yet a member of the Bar.
Lopez protested Corpuz appointment as CYRC Director on the ground that he had a better
right to the position.
CSC: dismissed the protest.
SC: affrimed CSC.
MECS Minister Jaime C. Laya "temporarily detailed" Lopez to the MECS Legal Office until
further advice "in the exigencies of the service." Sometime later, he was transferred to the
Planning Service Office of the MECS, it appearing that he was facing charges before the Legal
Division, which he, however, denied.
Domingo B. Nunez, Research Specialist and Chief of the Intellectual Emotional Development
Research Unit of the CYRC, tendered his resignation as such "because I cannot stand the
harassment of the Assistant Director, Mr. Jose P. Lopez, is doing to us employees. I am afraid I
cannot continue working with dignity and with peace of mind in such situation." In another
letter of the same date, Joseph D. de los Santos, Senior Educational Researcher of the CYRC,
also reported on an act of harassment on his person by Respondent Lopez and concluding "I
doubt whether I can stay long enough with the office with this kind of environment."
After about 6-1/12 months of re-assignment, Lopez wrote a letter to Minister Laya expressing
his intention to resume his official position as CYRC Assistant Director. Having received no
response, he returned to the CYRC as Assistant Director without official authorization.
Corpuz issued two (2) Memoranda: The first was addressed to the CYRC Staff advising that
Lopez would not be considered an active member of the Staff until he first secured the proper
authorization for his transfer. The other was addressed to Lopez himself requesting him to
submit an official order terminating his "detail."
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2003-29275 October 6, 2011
Lopez insisted on the validity of his resumption of office stating that "no one can be detailed
for more than three (3) months without the written consent of the employee concerned" and
that "detailed assignment beyond six (6) months has to be approved by the CSC and the
Office of the President."
Lopez wrote a letter to the then MECS Deputy Minister requesting clarification on the matter.
The same advice as to the necessity of prior authorization was given.
Corpuz addressed another memorandum to Respondent Lopez insisting on his compliance
with her directive and withheld salaries because Lopez's refusal to comply.
Lopez filed a Petition for mandamus with Damages against Corpuz, Minister Laya, and the
Chief, Administrative Services, before the RTC.
During the pendency of the case Minister Laya advised Respondent Lopez that his "temporary
detail" in the Planning Service Office of the Ministry had been rectified to "temporary
assignment" and that approval from the office should first be secured before returning to the
CYRC. His clearance was left unanswered and so he assumed office.
RTC: ordered Corpuz to pay Lopezs salary.
CA: affirmed.
ISSUE
WON Corpuz was justified in refusing to take official cognizance of Lopez's attendance as Assistant
Director at the CYRC and in withholding his salaries corresponding to the period.
HELD/RATIO
YES. Lopez returned to the CYRC at his own instance without any authorization from higher
authorities. Corpuz as CYRC Director, officially advised him to secure that clearance, but he
adamantly refused to obey a directive from his immediate superior. Under the circumstances,
Corpuz as head of the office, was left with no alternative but to withhold recognition of his
attendance at the CYRC. To maintain discipline in the office, and in the interests of the service, she
could do no less.
Further, it must be noted that the use of the term "detail" was defective. The proper
terminology shouldve been "re-assignment,". Indeed, a "detail" is the movement from one
Department or Agency to another which is temporary in nature (Section 4, Rule VI, Civil
Service Rules on Personal Actions and Policies) whereas a "re-assignment" is the movement of
an employee from one organizational unit to another in the same Department or Agency
(Section 5, Ibid.).
Be that as it may, the official intent of the directive was clear to move Respondent Lopez
away from the CYRC and locate him in the head office, "in the exigencies of the service."
Lopez brought upon himself the withholding of his salaries. When he reported back to the
CYRC he did so at his own instance without prior authorization. He was advised to secure such
clearance but he refused. The directive to obtain the same was reiterated by Corpuz. Instead
of complying, he addressed a letter to the Deputy Minister requesting clarification. He was
given the same opinion. He was again reminded and was required to submit a record of his
attendance duly signed by the Chief of the MECS Planning Services or an approved application
for leave of absence before he could be entitled to his salary. He reacted by stating that the
requirement was "superfluous." And when he did comply, discrepancies were discovered
between his submissions and those in the CYRC logbook. Respondent Lopez was himself,
therefore, recreant in complying with the requirements for the release of his salaries.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
d. Reassignment
An employee may be reassigned from one organizational unit to another in the SAME
agency
Shall NOT involved a REDUCTION in rank, status or salary, otherwise, its constructive
removal and violation of right to security of tenure.
It is a management prerogative of the CSC and any dept or agency embraced in the Civil
Service.
It does NOT constitute removal without cause.
REQUIREMENTS:
o NO reduction in rank, status or salary.
o Should have a definite date or duration (c.f. Detail). Otherwise, a floating
assignment = a diminution in status or rank.
TEOTICO V. AGDA | Davide, 1991
FACTS
Democrito Agda was appointed as Chief Fiber Development Officer, but his appointment does
not indicate any specific station or place of assignment. On the same date, FIDA Administrator
Cesar Lanuza issued Special Order No. 29, series of 1984 which designated Agda as "Acting
Regional Administrator for FIDA Regions I and II."
3 years later and through Special Order No. 219, Administrator temporarily re-assigned
Agda, in the interest of the service, at the main office of the Administrator to perform
special functions which may be assigned to him, and Administrators cousin, Epitacio Lanuza,
was designated Officer in Charge of FIDA Region I.
Joaquin Teotico (new Acting Adminstrator) issued a Memorandum to Agda directing him to
immediately submit his development programs for Region I for the years 1988 to 1993 and his
proposals concerning the potentials for sericulture and the maguey industry in the Region.
Agda did not comply because he was reassigned at the FIDA Central Office (through Special
Order No. 219). He suggested though that if compliance is imperative, Teotico must set aside
the aforementioned order.
Meanwhile, FIDA Region I OIC Wilfredo Seguritan, requested Teotico to require Agda to turn
over to him the keys of the vault in FIDA Region I "for the safekeeping of our blank checks,
official receipts, approved checks but not yet issued to payee creditors, salaries and other
vital official documents of the Region".
Agda indorsed the above routing slip request to the Secretary of the Department of
Agriculture wherein he admits that he has the key of the safety vault, but impliedly asserts
that he will not yield it to anybody alleging that his petition to stop the implementation of
Special Order No. 219 and to nullify it is still unresolved and, besides, the intended re-
assignment is merely temporary; hence, it would be in keeping with substantial justice if a
status quo of things be maintained.
Teotico formally charged Agda for insubordination and conduct prejudicial to the best interest
of the service for, among others, his failure to comply with the memorandum and with the
routing slip request.
Agda also lodged a complaint with the COMELEC alleging that Special Order No. 219 was in
violation of the appointment ban.
Lower court granted preliminary injunction for implementation of Special Order No. 219.
ISSUE
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2003-29275 October 6, 2011 71
WON Agda should be reinstated to his former position as Fiber Regional Administrator FIDA Region
I.
HELD/RATIO
NO. Agda was not appointed as Fiber Regional Administrator, FIDA Region I, but as CHIEF FIBER
DEVELOPMENT OFFICER; he was not appointed to any specific station. He was merely designated as
Acting Regional Administrator For FIDA Regions I and II.
Not having been appointed to any specific station, he could be transferred or assigned to any
other place by the head of office where in the opinion of the latter his services may be utilized
more effectively.
Cuadra vs. Cordova ruling applicable to Agda: Temporary appointments or appointments in an
acting capacity are terminable at the pleasure of the appointing authority. He can neither
claim a vested right to the station to which he was assigned nor to security of tenure thereat.
Agda could be re-assigned to any place and Special Order No. 219 dated 13 November 1987
reassigning private respondent at the Office of the Administrator of the FIDA "in the interest
of the service" was in order. Although denominated as "reassignment", it was in fact a mere
detail in that office.
The Civil Service Decree, P.D. No. 807, allows transfer, detail and re-assignment. If the
employee concerned believes that there is no justification therefore, he "may appeal his case
to" the Civil Service Commission. Unless otherwise ordered by the Commission, the decision
to detail an employee shall be executory. Agda invoked the appellate jurisdiction of the
Commission when he filed his Urgent Petition To Stay Implementation and Nullify the Special
Order in question with the Civil Service Commission. It does not, however, appear to Us that
he exerted genuine and sincere efforts to obtain an expeditious resolution thereof What
appears to be clear is that he used its pendency as an excuse for his refusal to comply with
the memorandum of Teotico of 7 January 1988 and the routing slip request of 11 March 1988
for the key to the safety vault.
As to the appointment ban:
Even in the cases of transfer or detail within the prohibited period prior to an election, an
aggrieved party is provided an appropriate administrative remedy.
Section 6 of Rule VI of the Civil Service Rules on Personnel Actions and Policies: Except when
the exigencies of the service require, an official or employee of the government may not be
ordered detailed or reassigned during the three-month period before any local or national
election, and if he believes that the order for his detail or reassignment is due to harassment,
coercion, intimidation, or other personal reasons, he may appeal the order to the
Commission. Until this is proven, however, the order is presumed to be in the interest of the
service and notwithstanding the appeal, the decision to detail or reassign him shall be
executory, but the Commission may order deferment of suspension of the detail or
reassignment ex parte."
CARIO V. DAOAS | Kapunan, 2002
FACTS
Cristina Jenny Cario was appointed Accountant III in the Office of the Northern Cultural
Communities (ONCC), now known as the National Commission for Indigenous People.
Cario was reassigned by Atty. David Daoas, ONCC Executive Director, to the position of
Technical Assistant of the Socio-Economic Division of the ONCC.
PROF. GISELLA N. DIZON-REYES
 72 Ma. Jessa M. Alvarez
Cario alleged that her reassignment was an offshoot of her refusal to sign a Disbursement
Voucher for the travel expenses to Indonesia of ONCC Regional Director Rosalina Bistoyong.
She further alleged that the position was non-existent.
Cario filed an administrative complaint for Grave Misconduct, Oppression and Conduct
Prejudicial to the Best Interest of the Service against Bistoyong. Bistoyong allegedly asked
Cario a number of times to withdraw the case in exchange for reinstatement to her former
position. Cario refused whereupon Bistoyong threatened to reassign her to the ONCC
Region II in Cagayan or in Manila.
Cario received a faxed memorandum from Bistoyong directing her to report to the ONCC
Region II office, in view of the reassignment of one Milagros Bonnit to the central office.
Carino inquired with the Regional Director of CSC regarding the propriety and legality of her
reassignment.
CSC Regional Director: reassignment was not in order.
Atty. Daoas issued a memorandum to Carino, reprimanding her for her failure to report at the
Region II office.
Cario continued to report for work in Region I. Bistoyong issued a memorandum ordering
Cario to refrain from reporting for work in Region I. Carino stopped reporting for work.
Atty. Daoas issued a Notice/Order of Separation informing Carino that she was dropped from
the rolls because of her absence.
CSC: issued Resolution No. 97-3754 dismissing the appeal of Atty. Daoas and Bistoyong and
ordering them to return Cario to Region I.
Cario reported back to work only to be informed, through a memorandum, that the CSC
resolution was rendered moot and academic by her having been dropped from the rolls.
CSC: issued Resolution No. 98-0488 dismissing Cario's appeal and affirming her dropping
from the rolls.
CA: denied Carinos appeal.
ISSUE
WON Carinos reassignment is valid.
HELD/RATIO
NO. The validity of the reassignment of petitioner was already settled by the pronouncement of the
Civil Service Commission that such reassignment was not valid and that she could not be
transferred to another region without her consent.
It is true that the transfer or detail of a public officer or employee is a prerogative of the
appointing authority and that it can be done as the exigencies of the public service may
require. As such, this Court in a number of cases allowed the reassignment of personnel but in
such instances, they were not appointed to a specific station or particular unit or agency.
The rule proscribes transfers without consent of officers appointed - not merely assigned - to
a particular station, such as in the case of herein petitioner who was appointed as Accountant
III in Region I. Hence, she could not be reassigned to another station or region without her
consent. Otherwise, the unconsented transfer would amount to a removal.
The appellate court cited Resolution No. 98-0488 of the CSC which mandates that a
reassigned employee who does not agree with the order must nevertheless comply until its
implementation is restrained or it is declared to be not in the interest of the service or have
been issued with grave abuse of discretion.
According to CA, Carino should have asked CSC to enjoin the effectivity of her reassignment
order, and for her failure to do so, she had only herself to blame. We do not agree. It was not
petitioner who appealed to the CSC as there was no need for her to do so. The situation
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prevailing in the case at bar was that the CSC Regional Officer issued a legal opinion that
petitioners reassignment was not in order and that her present assignment at the ONCC
Regional Office No. 1 must not be disturbed. It was in fact due to this legal opinion that
private respondents went to the Commission on appeal, which appeal was eventually denied.
As we stated earlier, the Commission eventually declared the reassignment of petitioner as
not valid, and respondent Daoas was directed to return petitioner to Region I.
The CSC Regional Office must be accorded the presumption of regularity in the performance
of its duties. Hence, when it rendered a legal opinion as regards the reassignment of
petitioner, it must be considered in order and should be respected pending appeal by private
respondents. Petitioner is thus justified in not heeding her reassignment order because her
basis was not, as stated by the appellate court, her firm belief that her transfer was illegal,
but the legal opinion of a regional office of the Civil Service Commission. Petitioner could not
therefore be considered AWOL because she was in fact reporting for work in Region I until 29
April 1997 when Bistoyong issued a memorandum ordering her to refrain from reporting for
work therein.
PASTOR V. CITY OF PASIG | Mendoza, 2002
FACTS
Remedios Pastor is Budget Officer of the Municipality of Pasig.
She was reassigned to the Office of the Municipal Administrator by the newly-elected Mayor of
Pasig, Vicente P. Eusebio pending investigation of reports against her concerning the issuance of
Advice of Allotments by her.
After three years with no case filed against her, she asked for reinstatement to her former position.
She was instead reassigned to another unit of the now city government.
CSC: ordered her reinstatement as Budget Officer of the City of Pasig. The CSC held that, while
Pastors reassignment was originally made in the exigency of the service without reduction in her
rank, status, or salary, City Mayor failed to advance sufficient reason to warrant her continuous
reassignment for more than three years which appears too long for one to conduct the study
assigned to her.
CA: reversed.
ISSUE
WON Pastors reassignment is valid.
HELD/RATIO
NO. Book V, Title I, Subtitle A, 26(7) of E.O. No. 292: Reassignment. An employee may be
reassigned from one organizational unit to another in the same agency: Provided, That such
reassignment shall not involve a reduction in rank, status, or salary.
A reassignment that is indefinite and results in a reduction in rank, status, and salary is in
effect a constructive removal from the service. In this case, contrary to the ruling of the CA,
Pastors reassignment to different offices in the local government of Pasig City is indefinite.
Petitioner has been on virtual floating assignments which cannot but amount to a diminution
of her rank, hence impermissible under the law.
As already noted, her reassignment began in 1992 with her detail to the Office of the (now)
City Administrator pending investigation of reports that she had issued Advice of Allotments
without sufficient cash collections. However, no investigation appears to have ever been
conducted on the said charge. To justify her continuing reassignment, respondent City Mayor
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
claimed that the same was due to petitioners long years of experience in finance which
especially fitted her for studies regarding the citys revenues.
Her reassignment to various offices should be considered more than merely a temporary one.
For all intents and purposes, her reassignment, lasting nearly ten years now, is a removal
without cause as Budget Officer of the City of Pasig.
There was a diminution of rank. As head of the Pasig City Hall Annex, her budget proposals for
the same will be subject to review by the City Budget Officer. Moreover, the position of City
Budget Officer is created by statute, while that of the head of the Pasig City Hall Annex is
created by mere ordinance.
Citing Cruz v Navarro: There is no question that we recognize the validity and indispensable
necessity of the well established rule that for the good of public service and whenever public
interest demands, [a] public official may be temporarily assigned or detailed to other duties
even over his objection without necessarily violating his fundamental and legal rights to
security of tenure in the civil service. But as we have already stated, such cannot be
undertaken when the transfer of the employee is with a view to his removal and if the
transfer is resorted to as a scheme to lure the employee away from his permanent position
because such attitude is improper as it would in effect result in a circumvention of the
prohibition which safeguards the tenure of office of those who are in the civil service.
e. Reinstatement
Technically the issuance of a new appointment and is discretionary on the part of the
appointing power.
It cannot be the subject of an application for a writ of mandamus.
Who may be reinstated to a position in the same level for which he is qualified:
o Any permanent appointee of a career service position
o No commission of delinquency or misconduct, and is not separated.
Same effect as Executive Clemency, which completely obliterates the adverse effects of
the administrative decisionwhich found him guilty of dishonesty. He is restored ipso
facto upon grant of such.
Application for reinstatement = unnecessary.
CRISTOBAL V. MELCHOR | Muoz Palma, 1977
FACTS
Jose Cristobal was employed as a private secretary in the President's Private Office. He is a
third grade civil service eligible.
Executive Secretary Amelito R. Mutuc informed the plaintiff that his services were
terminated. A similar letter was addressed by Secretary Mutuc to some other employees in
the Office of the President.
The dismissed employees appealed to the President.
Secretary Mutuc: denied.
Five of the employees who were separated (not including the herein plaintiff) filed a civil
action before the Court of First Instance of Manila against Secretary Mutuc and the cash
disbursing officer of the Office of the President praying for reinstatement and the payment of
their salaries.
CFI: dismissed complaint.
SC: reversed the dismissal of their complaint and declared their removal from office as illegal
and contrary to law.
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When the civil action filed by Raul R. Ingles, et al. was still pending the dismissed employees
who filed said action were recalled to their positions in the Office of the President, without
prejudice to the continuation of their civil action. With respect to the other employees who
were not reinstated, efforts were exerted by Secretary Mutuc to look for placements outside
of Malacaang so that they may be re-employed.
Jose Cristobal was one of those who had not been fortunate enough to be reappointed to any
positions as befits his qualifications.
After the decision of the Supreme Court was promulgated the plaintiff addressed a letter to
the Office of the President requesting reinstatement to his former position and the payment
of salary. This request was denied.
Jose Cristobal filed with the Court of First Instance of Manila a complaint naming then
Executive Secretary, Alejandro Melchor and Federico Arcala, cash disbursing officer, Office of
the President of the Philippines, as defendants.
CFI: dismissed the complaint reasoning that Section 16 of Rule 66 of the Rules of Court
expressly provides that an action against a public office or employee may not be filed for the
plaintiff's ouster from office unless the same is commenced within one year after the cause of
the ouster, or the right of the plaintiff to hold such office or position arose. This period of one
year is a condition precedent for the existence of the cause of action for quo warranto. The
rationale of this doctrine is that the Government must be immediately informed or advised if
any person claims to be entitled to an office or position in the civil service, as against another
actually holding, it, so that the Government may not be faced with the predicament of having
to pay two salaries, one for the person actually holding the office although illegally, and
another for one not actually rendering service although entitled to do so. The pendency of
administrative remedies does not operate to suspend the period of one year within which a
petition for quo warranto should be filed. Public interest requires that the right to a public
office should be determined as speedily as practicable.
ISSUE
WON Cristobal should be reinstated.
HELD/RATIO
YES. There was no acquiescence to or inaction on the part of Jose Cristobal amounting to
abandonment of his right to reinstatement in office. His non-participation is not fatal to his cause of
action. During the pendency of the civil case Cristobal continued to press his request for
reinstatement together with the other employees who had filed the complaint and was in fact
promised reinstatement as will be shown more in detail later.
Cristobal could be expected - without necessarily spending time and money by going to court
- to rely upon the outcome of the case filed by his co-employees to protect his interests
considering the similarity of his situation to that of the plaintiffs therein and the identical
relief being sought.
Citing Southern Pacific vs. Bogert: The essence of laches is not merely lapse of time. It is
essential that there be also acquiescence in the alleged wrong or lack of diligence in seeking a
remedy. Here plaintiffs, or others representing them, protested ... and ever since they have ...
persisted in the diligent pursuit of a remedy ... Where the cause of action of such a nature
that a suit to enforce it would be brought on behalf, not only the Plaintiff, but of all persons
similarly situated, it is not essential that each such person should intervene in the suit brought
in order that he be deemed thereafter free from the laches which bars those no sleep on the
rights.
PROF. GISELLA N. DIZON-REYES
 74 Ma. Jessa M. Alvarez
It was an act of the government through its responsible officials more particularly then
Executive Secretary Mutuc and his successors which contributed to the alleged delay in the
filing of Cristobal's present complaint for reinstatement. It was this continued promise of the
government officials concerned which led Cristobal to bide his time and wait for the Office of
the President to comply with its commitment. Furthermore, he had behind him the decision
of the Supreme Court in Ingles vs. Mutuc which he believed should be applied in his favor.
There was no evidence to indicate that the respective positions of the dismissed plaintiffs
were "primarily confidential" in nature and on the contrary the compensation attached and
the designation given thereto suggest the purely or at least mainly clerical nature of their
work; and consequently,, considering that the plaintiffs were admittedly civil service eligibles
with several years of service in the Government, their removal from office was illegal and
contrary to law
To summarize, with the circumstances thus surrounding this particular case, viz: (a) Jose
Cristobal consistently pressed for a reconsideration of his separation from the service; (b) he
was given assurance that would be recalled at the opportune time; and (c) that he sudden
termination of his employment without cause after eight years of service in the government is
contrary to law following the ruling Ingles vs, Mutuc which inures to the benefit of Cristobal
who is similarly situated as the plaintiffs in said case and who merely desisted from joining the
suit because of the assurance given him that he would be recalled to the service.
SABELLO V. DECS | Gancayco, 1989
FACTS
Isabelo Sabello was the Elementary School Principal of Talisay and also the Assistant Principal
of the Talisay Barangay High School of the Division of Gingoog City.
The barangay high school was in deficit at that time due to the fact that the students could
hardly pay for their monthly tuition fees. Since at that time also, the President of the
Philippines who was earnestly campaigning was giving aid in the amount of P2,000.00 for
each barrio, the barrio council through proper resolutions alloted the amount of P840.00 to
cover up for the salaries of the high school teachers, with the honest thought in mind that the
barrio high school was a barrio project and as such therefore, was entitled to its share of the
RICD fund in question.
The only part that Sabello played was his being authorized by the said barrio council to
withdraw the above amount and which was subsequently deposited in the City Treasurer's
Office in the name of the Talisay Barrio High School. That was a grave error on the part of the
herein petitioner as it involves the very intricacies in the disbursement of government funds
and of its technicalities.
Thus, Sabello, together with the barrio captain, were charged of the violation of Republic Act
3019, and both were convicted.
Sabello was granted an ABSOLUTE PARDON by the President of the Republic of the
Philippines, restoring him to 'full civil and political rights.' With this instrument on hand,
Sabello applied for reinstatement to the government service, only to be reinstated to the
wrong position of a mere classroom teacher and not to his former position as Elementary
School Principal I.
ISSUE
WON Sabello should be reinstated to his former position as Elementary School Principal.
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HELD/RATIO
YES. As a general rule, the question of whether or not petitioner should be reappointed to his
former position is a matter of discretion of the appointing authority, but under the circumstances
of this case, if the petitioner had been unfairly deprived of' what is rightfully his, the discretion is
qualified by the requirements of giving justice to the petitioner. It is no longer a matter of
discretion on the part of the appointing power, but discretion tempered with fairness and justice.
Citing Monsanto v Factoran: The absolute disqualification from office or ineligibility from
public office forms part of the punishment prescribed under the penal code and that pardon
frees the individual from all the penalties and legal disabilities and restores him to all his civil
rights. Although such pardon restores his eligibility to a public office it does not entitle him to
automatic reinstatement. He should apply for reappointment to said office.
As there are no circumstances that would warrant the diminution in his rank, justice and
equity dictate that he be returned to his former position of Elementary School Principal I and
not to that of a mere classroom teacher.
MONSANTO V. FACTORAN | Fernan, 1989
FACTS
Sandiganbayan convicted Salvacion A. Monsanto (then assistant treasurer of Calbayog City)
and three other accused, of the complex crime of estafa thru falsification of public
documents.
Monsanto appealed her conviction to this Court which subsequently affirmed the same.
She then filed a motion for reconsideration but while said motion was pending, she was
extended on December 17, 1984 by then President Marcos absolute pardon which she
accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be
restored to her former post as assistant city treasurer since the same was still vacant.
The Finance Ministry ruled that petitioner may be reinstated to her position without the
necessity of a new appointment not earlier than the date she was extended the absolute
pardon.
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry stressing that
the full pardon bestowed on her has wiped out the crime which implies that her service in the
government has never been interrupted and therefore the date of her reinstatement should
correspond to the date of her preventive suspension which is August 1, 1982; that she is
entitled to backpay for the entire period of her suspension.
Office of the President through Deputy Executive Secretary Fulgencio S. Factoran, Jr. held that
In line with the government's crusade to restore absolute honesty in public service, acquittal,
not absolute pardon, of a former public officer is the only ground for reinstatement to his
former position and entitlement to payment of his salaries, benefits and emoluments due to
him during the period of his suspension pendente lite.
Her subsequent motion for reconsideration having been denied, petitioner filed the present
petition.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by
reason of the fact that she was extended executive clemency while her conviction was still
pending appeal in this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to have been terminated
or forfeited.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
ISSUE
WON a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled
to reinstatement to her former position without need of a new appointment.
HELD/RATIO
NO. The penalty of prision mayor carries the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage, enforceable during
the term of the principal pena lty. Temporary absolute disqualification bars the convict from public
office or employment, such disqualification to last during the term of the sentence. Even if the
offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same
have been expressly remitted by the pardon. The penalty of prision correccional carries, as one of
its accessory penalties, suspension from public office.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed. It is the private, though official act
of the executive magistrate, delivered to the individual for whose benefit it is intended, and
not communicated officially to the Court. ... A pardon is a deed, to the validity of which
delivery is essential, and delivery is not complete without acceptance."
Pardon granted after conviction frees the individual from all the penalties and legal disabilities
and restores him to all his civil rights. But unless expressly grounded on the person's
innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing. This must be constantly kept in mind lest we lose track of the true character and
purpose of the privilege.
She may apply for reappointment to the office which was forfeited by reason of her
conviction. And in considering her qualifications and suitability for the public post, the facts
constituting her offense must be and should be evaluated and taken into account to
determine ultimately whether she can once again be entrusted with public funds. The pardon
granted to her has resulted in removing her disqualification from holding public employment
but it cannot go beyond that. To regain her former post as assistant city treasurer, she must
re-apply and undergo the usual procedure required for a new appointment.
CABAGNOT V. CSC | Romero, 1993
FACTS
A new organizational structure and staffing pattern of the provincial government of Aklan was
approved by the Joint Commission on Local Government Personnel Administration (JCLGPA)
thru the Director of the Bureau of Local Government Supervision.
The reorganization provided three hundred sixty four (364) regular plantilla positions from
the previous three hundred thirty nine (339) with the office of the Governor allocated one
hundred forty four (144) from the previous three hundred thirty nine (339) with the Office of
the Governor allocated one hundred fourty four (144) from the previous sixty (60) positions.
Governor Corazon L. Cabagnot issued a Memorandum inviting all provincial officials and
employees to apply for any of the authorized positions in the new staffing pattern for the
evaluation and assessment of the Provincial Placement Committee which she subsequently
created thru Executive Order No. 0II-88.
The list of employees newly appointed and re-appointed was posted. Individual letters were
sent to all employees in the list directing them to accomplish and submit the necessary
documents to complete their appointment and to report to their assigned offices.
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2003-29275 October 6, 2011 75
21 supposedly aggrieved employees jointly appealed to Cabagnot pursuant to Section 18 of
the Rules on Government Reorganization issued by the Civil Services Commission and
Sections 2, 3, 4, 5 and 12 of Republic Act 6656 (1988) entitled An Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of Government
Reorganization . They prayed that they be appointed to the positions they applied for to
which they are eligible, having the required educational background, training and experience.
They likewise sent Cabagnot individual letters reiterating their qualifications and praying for
reconsideration of their new appointments to positions lower in rank than their positions
prior to the reorganization.
Cabagnot denied their appeal reasoning that since reorganization renders all positions vacant,
the employees have no vested right to their original positions. Moreover, as the appointing
authority, she enjoys the prerogative to transfer employees to offices other than those they
previously occupied if such is necessary to make them function more effectively. Lastly, the
appointments of private respondents did not violate the Civil Service Law on security of
tenure as the items offered them carried the same rate and salary they were receiving prior
to the reorganization, i.e., there was no diminution or reduction of their salary.
17 of the original 21, private respondents herein, instituted a collective appeal before the Civil
Service Regional Office in Iloilo City.
Civil Service Commission found Cabagnot to have violated Sec. 7 of the Rules on
Reorganization and Memorandum Circular No. 5, s. of 1988 providing preference for
appointment of employees holding permanent positions considering that private respondents
who were all holding permanent appointments to regular items prior to the reorganization
were proposed to positions much lower than their former items despite the fact that their old
items were carried over in the new staffing pattern.
Cabagnot filed a motion for reconsideration to which the CSC promulgatged its 2nd resolution
declaring that private respondents have been demoted. Moreover, Cabagnot was found to
have violated Section 4 of Rep. Act No. 6656 providing preference for appointment of
permanent employees to the new positions or if there are not enough comparable ones, to
positions next lower in rank. Petitioner filed the present petition.
ISSUE
WON, as a result of the reorganization undertaken by the Provincial Government of Aklan, the
security of tenure of the appealing employees is impaired.
HELD/RATIO
YES. A glaring disparity exists between the former positions held by private respondents and the
positions proposed to them by petitioner. This is fairly obvious in the case of respondents Bautista,
et al. who were given positions which were, not only lower by two grades to as much as fourteen,
but which also changed the nature of their work. This is also true with respect to respondents
Martirez, et al. who were given positions lower by one grade despite the showing that comparable
positions exist. In the case of respondents Silva, et al. there were differences in their proposed
positions, by one or two steps. Finally, in the case of Briones, the disparity consists, not so much in
the salary grade and/or step, but in the nature of the work.
Sec. 1 of Rep. Act No. 6656 declares as the policy of the State, the protection of the security of
tenure of civil service officers and employees in the reorganization of the various agencies of
the government. Sec. 2 requires prior determination of a valid cause after due notice and
hearing before any officer or employee in the career service can be removed, or demoted,
which in effect is a removal.
PROF. GISELLA N. DIZON-REYES
 76 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

In order to show that valid cause for demotion exists, Cabagnot submits an evaluation security of tenure and due process. In the present case, the issuance by the CSC of the
supposedly made by the Placement Committee showing that the employees were questioned resolutions, for the reasons clearly explained therein, is indubitably in the
recommended to positions to which they are best fitted and where they would be performing performance of its constitutional task of protecting and strengthening the civil service.
more effectively as demanded by the interest of public service.
However, the employees raise some serious objections regarding this evaluation. [1] This f. Reemployment
supposed evaluation was not certified by any member of the Placement Committee. [2] The Names of persons who have been appointed permanently to positions in the career
evaluation is not complete, meaning, not all of the employees have their respective service and who have been separated as a result of reduction in force and/or
evaluation. [3] Its validity is dubious because different typewriters were used which could reorganization, shall be entered in a list from which selection from reemployment shall
mean that other entries were belatedly entered. [4] This evaluation was not submitted before be made.
the CSC and offered only to this Court for the first time.
In view of the seriousness of the objections raised against the evaluation which was the only
proof evidencing the existence of valid cause for demotion, it was expected that petitioner
would meet squarely these objections. However, she chose to ignore the same. Thus, as a
result of the reorganization of the provincial government of Aklan, these employees have
been demoted by their assignment to positions which are lower than those they previously
held, or which, though of equivalent salary grade and step, drastically changes the nature of
their work without a showing by petitioner of the existence of a valid cause for such
demotion, which in effect is a removal, determined after due notice and hearing.
Citing Mendoza v. Quisumbing: If a person is dismissed from his job, he should be informed of
the reason. The reason should be in the Civil Service Law or, at least, in the law authorizing
the removal. The reason must have a reasonable relationship to the employee's merit and
fitness for the job. He must be given, before he is fired, an opportunity to show that the cause
for removal does not apply to him. Elementary principles of fairness and compassion are
essential. Only then can the reconciliation and unity so earnestly sought today be achieved.
Assigning an employee to a lower position in the same service which has a lower rate of
compensation is a clear case of demotion tantamount to removal when no cause is shown for
it or when it is not a part of any disciplinary action. Thus, petitioner stresses the fact that since
private respondents would be receiving the same rate of salary they were receiving before
the reorganization, therefore they are not demoted. In the case of Floreza, we ruled that
there was demotion even if Floreza was allowed to receive the same salary as his previous
higher position. Similarly, we find that private respondents, notwithstanding non-diminution
of their salary, have been demoted. This arbitrariness has no place in a government that
nurtures the constitutional mandates of security of tenure and due process.
In addition to a finding of demotion, the CSC also found petitioner to have violated the rule on
preference for appointment of permanent employees based on Sec. 4 of RA 6656, Sec. 7 of
Rules on Organization and Memorandum Circular No. 5, s. 1988 of the CSC. The rule means
that "old employees should be considered first" on the assumption, though not absolutely
true, that they have gained "not only superior skills but also greater dedication to the public
service." This is not to say, however, that they should be automatically appointed because
"the law does not preclude the infusion of new blood, younger dynamism, or necessary
talents into the government service" provided that the acts of the appointing power are
"bonafide for the best interest of the public service and the person chosen has the needed
qualifications." It is less than accurate, however, to conclude that petitioner violated the rule
on preference for appointment of permanent employees because not all appointees to the
positions formerly held by private respondents or to those comparable positions were new
appointees.
Citing Gayatao v. CSC: It is within the power of public respondent to order the reinstatement
of government employees who have been unlawfully dismissed. As the central personnel
agency, CSC has the obligation to implement and safeguard the constitutional provisions on

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Ma. Jessa M. Alvarez
6. Right to Self Organization
Implementing Rules, Rule XII, Sec. 1: The right to self-organization shall not be denied to
government employees.
Sec. 8, Art. III, 1987 Constitution: The right of people including those employed in the public
and private sectors to form associations, unions or societies for purposes not contrary to law
shall not be abridged.
Sec. 3, Art. XIII, 1987 Constitution: Guarantee the rights of all workers to self-organization,
collective bargaining and negotiations and peaceful concerted activities including the right to
strike in accordance with law.
PROHIBITED CONCERTED ACTIVITY or MASS ACTION refers to any collective activity
undertaken by government employees either by themselves or through their employees
organizations, with intent of effecting work stoppage or service disruption in order to realized
their demands or force concessions or otherwise, from their respective agencies or the
government.
HOWEVER, if done outside of government office hours, it may be allowed and shall not be
deemed prohibited as long as such would not result in disruption of work.
Government agencies shall not approve or warrant mass leave of absences substantially
intended to enable employees to join or take part in prohibited mass actions.
MASS LEAVE OF ABSENCES occur when five or more employees of the same agency apply
for leave simultaneously or at the same time under circumstances evidencing collusion or
common design to participate in a prohibited mass action.
Government employees have right to collective negotiation
TUPAS V. NHA | Regalado, 1989
FACTS
NHC is a GOCC Incorporated under the former corporation law. Trade Unions of the
Philippines and Allied Services (TUPAS) is a legitimate labor organization with a chapter in
NHC.
TUPAS filed a petition for the conduct of a certification election with Regional Office of the
Department of Labor in order to determine the exclusive bargaining representative of the
workers in NHC. It was claimed that its members comprised the majority of the employees of
the corporation.
MA Eusebio M. Jimenez: dismissed petition. NHC being a GOCC its employees/workers are
prohibited to form, join or assist any labor organization for purposes of collective bargaining
pursuant to Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor
Code."
TUPAS appealed to the BLR.
BLR Director Carmelo C. Noriel: reversed.
OIC Virgilio S.J. Sy: set aside ruling of BLR.
ISSUE
WON the employees and workers of the NHC have the right to form unions or employees
organization.
HELD/RATIO
YES. The 1987 Constitution declares that "(t)he civil service embraces all branches, subdivisions,
instrumentalities and agencies of the government, including government-owned or controlled
corporations with original charters."
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Consequently, the civil service now covers only GOCCs with original or legislative charters,
that is those created by an act of Congress or by special law, and not those incorporated
under and pursuant to a general legislation. The SC declared that the 1987 Constitutional
implies that the Civil Service does not include GOCCs which are organized as subsidiaries of
GOCCs under the general corporation law.
The workers or employees of NHC undoubtedly have the right to form unions or employees'
organizations. The right to unionize or to form organizations is now explicitly recognized and
granted to employees in both the governmental and the private sectors. The Bill of Rights
provides that "(t)he right of the people, including those employed in the public and private
sectors, to form unions, associations or societies for purposes not contrary to law shall not be
abridged"
This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice
and Human Rights, which mandates that the State "shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law ...." Specifically with respect to
government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article
IX B 12 which provides that "(t)he right to self-organization shall not be denied to government
employees."
There is, therefore, no impediment to the holding of a certification election among the
workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a
government-owned and/or controlled corporation without an original charter. Statutory
implementation of the last cited section of the Constitution is found in Article 244 of the
Labor Code, as amended by Executive Order No. 111, thus: ... Right of employees in the public
service Employees of the government corporations established under the Corporation
Code shall have the right to organize and to bargain collectively with their respective
employers. All other employees in the civil service shall have the right to form associations for
purposes not contrary to law.
N.B. Insofar as certification elections are concerned, subsequent statutory developments
have rendered academic even the distinction between the two types of government-owned
or controlled corporations and the laws governing employment relations therein, as
hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or
by the civil service laws, a certification election may be conducted.
For employees in corporations and entities covered by the Labor Code, the determination of
the exclusive bargaining representative is particularly governed by Articles 255 to 259 of said
Code. Article 256 provides for the procedure when there is a representation issue in
organized establishments, while Article 257 covers unorganized establishments. These Labor
Code provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules.
With respect to other civil servants, that is, employees of all branches, subdivisions,
instrumentalities and agencies of the government including government-owned or controlled
corporations with original charters and who are, therefore, covered by the civil service laws,
the guidelines for the exercise of their right to organize is provided for under Executive Order
No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the
"sole and exclusive employees representative"; Under Section 12, "where there are two or
more duly registered employees' organizations in the appropriate organization unit, the
Bureau of Labor Relations shall, upon petition order the conduct of certification election and
shall certify the winner as the exclusive representative of the rank-and-file employees in said
organizational unit."
SSSEA V. CA | Cortes, 1989
PROF. GISELLA N. DIZON-REYES
 78 Ma. Jessa M. Alvarez
FACTS
SSSEA went on strike after the SSS failed to act on the union's demands.
SSS filed with the RTC a complaint for damages with a prayer for a writ of preliminary
injunction against SSSEA when the officers and members of SSSEA staged an illegal strike and
baricaded the entrances to the SSS Building, preventing non-striking employees from
reporting for work and SSS members from transacting business with the SSS; that the strike
was reported to the Public Sector Labor - Management Council, which ordered the strikers to
return to work; that the strikers refused to return to work; and that the SSS suffered damages
as a result of the strike.
RTC: issued a TRO.
SSSEA filed a MTD on ground of LOJ over subject matter.
RTC: declared that the strike was illegal.
CA: affirmed.
SSSEA claims: Jurisdiction is with the DOLE or the NLRC.
SSS claims: employees of the SSS are covered by civil service laws and rules and regulations,
not the Labor Code, therefore they do not have the right to strike. RTC has jurisdiction.
ISSUES
(1) WON the RTC has jurisdiction issue the writ of injunction.
(2) WON the SSS employees have the right to strike.
HELD/RATIO
(1) YES. The Labor Code itself provides that terms and conditions of employment of government
employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More
importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over
unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no
jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of its general
jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's
complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the
Public Sector Labor - Management Council has not been granted by law authority to issue
writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not
the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of
law for the issuance of a writ of injunction to enjoin the strike is appropriate.
(2) NO. The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the
State "shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with law"
[Art. XIII, Sec. 31].
However, in the Sub-Article on the Civil Service Commission, it only provides that "[t]he right
to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and
(50)].
Further, a reading of the proceedings of the Constitutional Commission that drafted the 1987
Constitution would show that in recognizing the right of government employees to organize,
the commissioners intended to limit the right to the formation of unions or associations only,
without including the right to strike.
Industrial Peace Act (C.A. No. 875), which was repealed by the Labor Code (PAD. 442) in 1974,
expressly banned strikes by employees in the Government, including instrumentalities
exercising governmental functions, but excluding entities entrusted with proprietary
functions. No similar provision is found in the Labor Code. Understandably, the Labor Code is
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2003-29275 October 6, 2011
silent as to whether or not government employees may strike, for such are excluded from its
coverage. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.
To implement the constitutional guarantee of the right of government employees to organize,
the President issued E.O. No. 180 which provides guidelines for the exercise of the right to
organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil
Service law and rules governing concerted activities and strikes in the government service
shall be observed, subject to any legislation that may be enacted by Congress." The President
was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service
Commission which, "prior to the enactment by Congress of applicable laws concerning strike
by government employees . . . enjoins under pain of administrative sanctions, all government
officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and
other forms of mass action which will result in temporary stoppage or disruption of public
service." At present, in the absence of any legislation allowing government employees to
strike, recognizing their right to do so, or regulating the exercise of the right, they are
prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied
in E.O. No. 180.
Considering that under the 1987 Constitution "[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government-
owned or controlled corporations with original charters" [Art. IX(B), Sec. 2(1); see also Sec. 1
of E.O. No. 180 where the employees in the civil service are denominated as "government
employees"] and that the SSS is one such government-controlled corporation with an original
charter, having been created under R.A. No. 1161, its employees are part of the civil service
and are covered by the Civil Service Commission's memorandum prohibiting strikes. This
being the case, the strike staged by the employees of the SSS was illegal.
Since the terms and conditions of government employment are fixed by law, government
workers cannot use the same weapons employed by workers in the private sector to secure
concessions from their employers. The principle behind labor unionism in private industry is
that industrial peace cannot be secured through compulsion by law. Relations between
private employers and their employees rest on an essentially voluntary basis. Subject to the
minimum requirements of wage laws and other labor and welfare legislation, the terms and
conditions of employment in the unionized private sector are settled through the process of
collective bargaining. In government employment, however, it is the legislature and, where
properly given delegated power, the administrative heads of government which fix the terms
and conditions of employment. And this is effected through statutes or administrative
circulars, rules, and regulations, not through collective bargaining agreements.
E.O. No. 180, which provides guidelines for the exercise of the right to organize of
government employees, while clinging to the same philosophy, has, however, relaxed the rule
to allow negotiation where the terms and conditions of employment involved are not among
those fixed by law. Thus: SECTION 13. Terms and conditions of employment or improvements
thereof, except those that are fixed by law, may be the subject of negotiations between duly
recognized employees' organizations and appropriate government authorities.
Government employees may, therefore, through their unions or associations, either petition
the Congress for the betterment of the terms and conditions of employment which are within
the ambit of legislation or negotiate with the appropriate government agencies for the
improvement of those which are not fixed by law. If there be any unresolved grievances, the
dispute may be referred to the Public Sector Labor-Management Council for appropriate
action. But employees in the civil service may not resort to strikes, walkouts and other
temporary work stoppages, like workers in the private sector, to pressure the Government to
accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
to Govern the Exercise of the Right of Government Employees to Self-Organization, the terms
and conditions of employment in the government, including any political subdivision or
instrumentality thereof and government-owned and controlled corporations with original
charters are governed by law and employees therein shall not strike for the purpose of
securing changes thereof."
BANGALISAN V. CA | Regalado, 1997
FACTS
Rodolfo Mariano were among the 800 public school teachers who staged mass actions
because of the alleged failure of the public authorities to implement laws and measures
intended for their material benefit.
Secretary of DECS issued a Return-to-Work Order.
Petitioners failed to comply, hence they were charged by the Secretary with 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. They were
simultaneously placed under preventive suspension.
DECS Secretary: petitioners guilty as charged and suspending them for 9 months without pay.
CSC: modified suspension of some from 9 months to 6 months. 1 was merely reprimanded.
The rests penalty was affirmed.
CA: dismissed petition.
ISSUES
(1) WON public school teachers have the right to strike.
(2) WON the mass action launched by the public teachers was a strike.
HELD/RATIO
(1) NO. It is the settled rule in this jurisdiction that employees in the public service may not engage
in strikes. While the Constitution recognizes the right of government employees to organize, they
are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of
mass action which will result in temporary stoppage or disruption of public services. The right of
government employees to organize is limited only to the formation of unions or associations,
without including the right to strike.
(2) YES. In the case Manila Public School Teachers Association, et al. vs. Laguio, Jr, it was held that
from the pleaded and admitted facts, these mass actions were to all intents and purposes a strike;
they constituted a concerted and unauthorized stoppage of, or absence from, work which it was
the teachers duty to perform, undertaken for essentially economic reasons.
It is an undisputed fact that there was a work stoppage and that petitioners purpose was to
realize their demands by withholding their services. The fact that the conventional term
strike was not used by the striking employees to describe their common course of action is
inconsequential, since the substance of the situation, and not its appearance, will be deemed
to be controlling.
The ability to strike is not essential to the right of association. In the absence of statute,
public employees do not have the right to engage in concerted work stoppages for any
purpose.
It bears stressing that suspension of public services, however temporary, will inevitably derail
services to the public, which is one of the reasons why the right to strike is denied
government employees. It may be conceded that the petitioners had valid grievances and
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2003-29275 October 6, 2011 79
noble intentions in staging the mass actions, but that will not justify their absences to the
prejudice of innocent school children. Their righteous indignation does not legalize an illegal
work stoppage.
Petitioners also assail the constitutionality of Memorandum Circular No. 6 issued by the Civil
Service Commission. As a general rule, even in the absence of express statutory prohibition
like Memorandum Circular No. 6, public employees are denied the right to strike or engage in
a work stoppage against a public employer.
To grant employees of the public sector the right to strike, there must be a clear and direct
legislative authority therefor. In the absence of any express legislation allowing government
employees to strike, recognizing their right to do so, or regulating the exercise of the right,
employees in the public service may not engage in strikes, walkouts and temporary work
stoppages like workers in the private sector.
7. Other rights: Leaves of absence, GSIS retirement, Absences insurance, Employees
Compensation
BORROMEO V. CSC |Guttierez, 1991
FACTS
Jesus N. Borromwo wrote a letter to the COA Chairman, coursed through the CSC Chairman,
requesting an opinion on whether or not the money value of the terminal leave of retired
Constitutional Commission members should include the allowances received at the time of
retirement.
In a First Indorsement to the COA Chairman, the CSC Chairman recommended the approval of
the petitioner's request for payment of the money value of his terminal leave based on salary
plus allowances.
COA: ruled in favor of Borromeo.
CSC Chairman requested release of payment from the DBM.
DBM: denied.
ISSUE
WON the terminal leave pay of Borromeo, Chairman of the CSC, shall be computed on the basis of
the highest monthly salary plus cost of living allowance (COLA) and representation and
transportation allowance (RATA).
HELD/RATIO
YES. The petitioner anchors his claim on the Memorandum Order issued by President Marcos. The
Order was the former President's response to a query initiated by former COA Chairman Francisco
A. Tantuico, Jr. seeking clarification from the Office of the President respecting the claim of retired
Chairman Leonardo B. Perez and Commissioners Venancio S. Duque and Flores A. Bayot of the
Commission on Elections for the payment of the money value of their accumulated leaves. Since
the Memorandum order specifically applies to these three officials, then said Order cannot
automatically benefit others not mentioned therein.
The petitioner also invokes Administrative Order No. 44 extending to the Chairman and
members of the Constitutional Commissions the same benefits enjoyed by retiring members
of the Judiciary in the matter of rationalized rate of allowances and liberalized computation of
retirement benefits and accumulated leave credits. The Solicitor General stresses that under
Section 286 of the Revised Administrative Code, as amended by Republic Act No. 1081 and
PROF. GISELLA N. DIZON-REYES
 80 Ma. Jessa M. Alvarez
Executive Order No. 1077, the computation of the money value of the terminal leave pay is
based only on monthly basic salary.
"Commutation of salary" as used in Section 286 is, however, not the same as "commutation
of leave credits." The former is applied for by an employee during employment when he goes
on ordinary leave. In contrast, commutation of leave credits, more commonly known as
terminal leave, is applied for by an officer or employee who retires, resigns or is separated
from the service through no fault of his own. (Manual on Leave Administration Course for
Effectiveness published by the Civil Service Commission, pages 16-17). In the exercise of
sound personnel policy, the Government encourages unused leaves to be accumulated. The
Government recognizes that for most public servants, retirement pay is always less than
generous if not meager and scrimpy.
Terminal leave payments are given not only at the same time but also for the same policy
considerations governing retirement benefits.
Since terminal leave is applied for by an officer or employee who has already severed his
connection with his employer and who is no longer working, then it follows that the terminal
leave pay, which is the cash value of his accumulated leave credits, should not be treated as
compensation for services rendered at that time. There can thus be no "commutation of
salary" when a government retiree applies for terminal leave because he is not receiving it as
salary. What he applies for is a "commutation of leave credits." It is an accumulation of credits
intended for old age or separation from the service. Hence, Section 286 of the Revised
Administrative Code is not applicable. It cannot be construed as limiting the basis of the
computation of terminal leave pay to monthly salary only.
In the light of the reasons which impelled the law to include COLA and RATA in computing
retirement benefits of certain officials, we rule that terminal leave payments must also be
governed by the same principle. COLA and RATA should be included in computing the
terminal leave credits when the officials retire or the official relationship is lawfully
terminated.
A reading of Section 12(c) of CA 186 therefore reveals an intent on the part of the legislature
to provide a uniform basis in computing both the retirement gratuity and the terminal leave
pay. In CA 186, that uniform basis is salary.
A different law, R.A. 910 as amended, governs the petitioner. In the case of members of the
Judiciary and Constitutional Commissions, the basis in computing the retirement gratuity is
the highest monthly salary plus the highest monthly aggregate of transportation, living and
representation allowance (COLA and RATA). The same rule of uniformity which we applied in
Paredes v. Acting Chairman for those retiring under CA 186 as amended should also apply for
those who retire under R.A. 910 as amended. The rate used in computing retirement
gratuities also applies in the computation of terminal leave credits.
It is axiomatic that retirement laws are liberally construed and administered in favor of the
persons intended to be benefited. All doubts as to the intent of the law should be resolved in
favor of the retiree to achieve its humanitarian purposes.
Although terminal leave pay is not synonymous with, and is not a part of, the five-year lump
sum gratuity provided under RA 910 as amended and Administrative Order No. 444, the
former may, in a broad sense, partake of the nature of a gratuity rather than actual salary. A
gratuity is that paid to the beneficiary for past services rendered purely out of generosity of
the giver or grantor. It is a mere bounty given by the government in consideration or in
recognition of meritorious services and springs from the appreciation and graciousness of the
government. While it is true that vacation and sick leave credits are earned during one's
period of employment, they are, by their very nature and purpose, supposed to be enjoyed or
exhausted during employment. When these accumulated leave benefits are allowed to be
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2003-29275 October 6, 2011
accumulated, not to be paid while one is working but to be reserved for old age, then this
constitutes the gratuity.
Since terminal leave pay may also be considered a gratuity, then applying the rule on liberal
interpretation of retirement laws, the basis for its computation in the case of members of the
Judiciary and Constitutional Commissions must be the same as that used in computing the 5-
year lump sum gratuity under RA 910 as amended and Administrative Order No. 444.
There is more reason now to include COLA in the computation of terminal leave pay. Section
12 of Republic Act 6758, known as the Compensation and Position Classification Act of 1989,
mandated the integration of COLA to the basic salary and, therefore, to the retirement pay of
all employees. While it is true that RA 6758 took effect only on July 1, 1989, long after
petitioner had already retired on April 1, 1986, his COLA should nevertheless have been
included in computing terminal leave pay for the same reasons stated above.
VITAL-GOZON V. CA | Narvasa, 1992
FACTS
Pursuant to Executive Order No. 119, reorganization of the various offices of the Ministry of
Health commenced; existing offices were abolished, transfers of personnel effected.
Dr. Alejandro S. de la Fuente was the Chief of Clinics of the National Children's Hospital, he
occupied the post of Medical Specialist II.
Dr. de la Fuente received notice from the Department of Health that he would be re-
appointed "Medical Specialist II." Considering this to be a demotion by no less than two ranks
from his post as Chief of Clinics, Dr. de la Fuente filed a protest with the DOH Reorganization
Board. When his protest was ignored, he brought his case to the Civil Service Commission. In
the meantime "the duties and responsibilities pertaining to the position of Chief of Clinics
were turned over to and were allowed to be exercised by Dr. Jose D. Merencilla, Jr.
The Commission declared the demotion/transfer of appellant dela Fuente, Jr. from Chief of
Clinics to Medical Specialist II as null and void: hence, illegal. Considering further that since
the National Children's Hospital was not abolished and the positions therein remained intact
although the title or the position of Chief of Clinics was changed to 'Chief of Medical
Professional Staff' with substantially the same functions and responsibilities, the Commission
ordered that Appellant dela Fuente, Jr. be retained or considered as never having
relinquished his position of Chief of Clinics (now Chief of Medical Professional Staff) without
loss of seniority rights; and that he be paid back salaries, transportation, representation and
housing allowances and such other benefits withheld from him from the date of his illegal
demotion/transfer.
De la Fuente thereupon sent two (2) letters to Dr. Vital-Gozon, the Medical Center Chief of
the National Children's Hospital, demanding implementation of the Commission's decision.
Dr. Vital-Gozon referred "de la Fuente's claims to the Department of Health Assistant
Secretary for Legal Affairs for appropriate advice and/or action. But she did not answer Dr. de
la Fuente's letters, not even to inform him of the referral thereof to the Assistant Secretary.
She chose simply to await "legal guidance from the DOH Legal Department." On the other
hand, no one in the DOH Legal Department bothered to reply.
Dr. de la Fuente repaired to the Civil Service Commission and asked it to enforce its judgment.
He was however "told to file in court a petition for mandamus because of the belief that the
Commission had no coercive powers unlike a court to enforce its final decisions/resolutions.
So he instituted in the Court of Appeals an action of "mandamus and damages with
preliminary injunction" to compel Vital-Gozon, and the Administrative Officer, Budget Officer
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
and Cashier of the NCH to comply with the final and executory resolution of the Civil Service
Commission.
De la Fuente filed with the same Court a Supplemental/Amended Petition described as one
for "quo warranto" aside from "mandamus " and added three respondents including Dr. Jose
Merencilla, Jr.; and alleged inter alia that he had "clear title" to the position in question in
virtue of the final and executory judgment of the Civil Service Commission.
The Appellate Court held that the question of whether petitioner may be divested of his
position as Chief of Clinics by the expedient of having him appointed to another, lower
position is no longer an issue. It ceased to be such when the resolution in CSC Case became
final. The said resolution is explicit in its mandate; petitioner was declared the lawful and de
jure Chief of Clinics (Chief of the Medical Professional Staff) of the National Children's
Hospital, and by this token, respondent Dr. Jose D. Merencilla, Jr. is not legally entitled to the
office. Respondents. particularly Dr. Isabelita Vital-Gozon, had no discretion or choice on the
matter; the resolution had to be complied with. But de la Fuente's prayer for damages
founded essentially on the refusal of Gozon, et al. to obey the final and executory judgment of
the Civil Service Commission, which thus compelled him to litigate anew in a different forum -
was denied by the Court of Appeals on the ground that the petitions for mandamus are not
the vehicle nor is the Court the forum for said claim of damages.
De le Fuente sought reconsideration.
While his motion for reconsideration was pending, de la Fuente sought to enforce the
judgment of the Court of Appeals directing his reinstatement pursuant to the Civil Service
Commission's Resolution. He filed a motion for execution which was granted by the CA.
The writ of execution notwithstanding, compliance with the June 9, 1989 judgment was not
effected. Consequently, de la Fuente filed, on July 20, 1989, an "Urgent Ex Parte
Manifestation with Prayer to Cite Respondents for Contempt.
Court of Appeals promulgated another Resolution. It modified the Decision of June 9, 1989 by
deleting the paragraph disallowing the claim of damages and scheduling further proceedings
for receiving evidence of damages.
CA denied motions for reconsideration.
ISSUES
(1) WON CSC has the authority to execute its own resolution.
(2) WON De la Fuente should be allowed to present evidence to recover damages.
HELD/RATIO
(1) YES. It would appear absurd to deny to the Civil Service Commission the power or authority to
enforce or order execution of its decisions, resolutions or orders which, it should be stressed, it has
been exercising through the years. It would seem quite obvious that the authority to decide cases is
inutile unless accompanied by the authority to see that what has been decided is carried out.
Hence, the grant to a tribunal or agency of adjudicatory power, or the authority to hear and
adjudge cases, should normally and logically be deemed to include the grant of authority to enforce
or execute the judgments it thus renders, unless the law otherwise provides.
(2) YES. It has become essential to determine the effect of the execution of said decision of June 9,
1989 at de la Fuente's instance, on the power of the Court of Appeals to modify that judgment as
earlier prayed for by de la Fuente in such a way as to concede the latter's capacity to claim
damages in his mandamus action, and consequently authorize him to present evidence on the
matter.
The general rule is that when a judgment has been satisfied, it passes beyond review,
satisfaction being the last act and end of the proceedings, and payment or satisfaction of the
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 81
obligation thereby established produces permanent and irrevocable discharge. On the other
hand, where the judgment is divisible, estoppel should not operate against the judgment
creditor who causes implementation of a part of the decision by writ of execution.
In this case, the amended judgment of the Court of Appeals is clearly divisible, satisfaction of
which may be "split up." One part has reference to the enforcement of the final and
executory judgment of the Civil Service Commission, that de la Fuente should be reinstated to
the position of Chief of Clinics (now Chief of Medical Professional Staff) without loss of
seniority rights and that he be paid his back salaries and all monetary benefits due him from
the date of his illegal demotion. This part is no longer issuable, and has not in truth been
controverted by Gozon herself. The other part has reference to the damages which de la
Fuente contends he suffered as a result of the unjustified refusal of Gozon and her co-parties
to comply with the final and executory judgment of the Civil Service Commission, and which
the Appellate Tribunal has allowed him to prove. Obviously, the second part cannot possibly
affect the first. Whether de la Fuente succeed or fail in his bid to recover damages against
Gozon, et al. because of their refusal to obey the judgment of the Civil Service Commission, is
a contingency that cannot affect the unalterable enforceability of that judgment.
MANCENIDO V. CA | Quisumbing, 2000
FACTS
Eduardo Mancenido filed an action for mandamus and damages with the Regional Trial of
Camarines Norte, Branch 38, Daet against the petitioners provincial board of Camarines
Norte, the school board, provincial governor, provincial treasurer, and provincial auditor to
pay the teacher's claim for unpaid salary increases.
The lower court rendered a decision ordering the Provincial School Board to appropriate and
satisfy plaintiffs claim in the amount of P268,800.00, as unpaid salary increases.
Co-respondents filed an appeal and respondent judge gave due course to the appeal.
Petitioners filed notice of appeal. Respondent judge issued an order (1) recalling the order of
February 23, 1994, granting the appeal of respondents; (2) approving the appeal of
Petitioners (Mancenido); and (3) granting their motion for partial execution.
Respondents filed a motion for reconsideration which respondent judge denied. Dissatisfied
with the denial, respondents herein filed a petition for mandamus, prohibition, and injunction
with the Court of Appeals with the prayer, among others, that their notice of appeal be given
due course and the trial court be prohibited from enforcing the partial execution of its
judgment.
Appellate court granted the petition for prohibition and mandamus and ordered the
respondent judge: (1) to elevate the original record of Civil Case No. 5864 to the Court of
Appeals in due course of appeal; and (2) to desist from the partial execution of the decision in
the case.
Petitioners then filed a motion to reconsider the appellate court's decision, which motion was
denied by the Court of Appeals. Hence, the instant petition.
ISSUES
(1) WON a private counsel may represent municipal officials sued in their official capacities?
(2) Whether a Notice of Appeal filed through private counsel and with notice to petitioners and not
to their counsel is valid?
HELD/RATIO
PROF. GISELLA N. DIZON-REYES
 82 Ma. Jessa M. Alvarez 2003-29275
(1) YES. Section 481, Article 11, Title V of the Local Government Code (R.A. No. 7160) provides for
the appointment of a legal officer, whose function is: Represent the local government unit in
all civil actions and special proceedings wherein the local government unit or any official
thereof, in his official capacity, is a party: Provided, That, in actions or proceedings where a
component city or municipality is a party adverse to the provincial government or to another
component city or municipality, a special legal officer may be employed to represent the
adverse party
Decision re: representation of a local government unit by a private attorney. Municipality of
Bocaue v. Manotok etc: only when the provincial fiscal is disqualified may the municipal
council be authorized to hire the services of a special attorney.
Citing Enriquez, Sr. v. Gimenez: instances when the provincial public prosecutor is disqualified
from representing a particular municipality 1. when the jurisdiction of a case involving the
municipality lies with the SC, 2. when the municipality is a party adverse to the provincial
government or to some other municipality in the same province, and 3. when in a case
involving the municipality, the provincial prosecutor, his spouse, or his child is involved as a
creditor, heir, legatee, or otherwise.
But do these rulings equally apply to local government officials?
Citing Alinsug v. RTC, Br. 58, San Carlos City, Negros Occidental: In resolving whether a local
government official may secure the services of private counsel in an action filed against him in
his official capacity, the nature of the action and the relief sought are to be considered.
Citing Albuera v. Torres: Court approved the representation by private counsel of a provincial
governor sued in his official capacity, where the complaint contained other allegations and a
prayer for moral damages, which, if due from the defendants, must be satisfied by them in
their private capacity.
Citing Province of Cebu v. Intermediate Appellate Court: Where rigid adherence to the law on
representation would deprive a party of his right to redress for a valid grievance, the hiring of
private counsel would be proper.
In view of the damages sought which, if granted, could result in personal liability, respondents
could not be deemed to have been improperly represented by private counsel. No error may
thus be attributed to the appellate court when it recognized the right of respondents to be
represented by private counsel.
(2) YES. Where a party appears by attorney in an action or proceeding in a court of record, all
notices thereafter required to be given therein must be given to the attorney and not to the
client, and a notice given to the client and not to his attorney is not a notice in law. The
purpose of the rule is to maintain a uniform procedure calculated to place in competent
hands the prosecution of a party's case.
However, no error was committed by the Court of Appeals when it ordered the trial court (a)
to elevate the original record of Civil Case No. 5864 and (b) to desist from any further
proceedings in said case. Petitioners did appeal the decision of the trial court to the appellate
court within the reglementary period to perfect an appeal. Once a written notice of appeal is
filed, appeal is perfected and the trial court loses jurisdiction over the case, both over the
record and subject of the case.
LOPEZ V. CA | Feliciano, 1992
FACTS
Galicano Manapat retired from the government service as Chief of the Legal Division of the
Office of the Municipal Board of Manila. He retired under the provisions of R.A. No. 1616, as
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October 6, 2011
amended, having then rendered twenty (20) years of service to petitioner City of Manila and
received the amount of P24,479.02 representing his full retirement benefit.
Manapat was reemployed by the City of Manila, this time as Secretary of the City of Manila
Board as Tax Assessment Appeals. He occupied that position until he reached the compulsory
retirement age of sixty-five (65) years. The City of Manila extended his period of service for six
(6) months.
During this additional period of service, the Salary Standardization Law (R.A. No. 6758) took
effect and increased Manapat's monthly salary from P3,993.33 to P11,385.00.
Upon expiration of private respondent Manapat's six (6)-month extended period of service,
he filed with the Government Service Insurance System ("GSIS") an application for retirement
under R.A. No. 1616, as amended. This application was approved by the GSIS initially on the
basis of his previous salary of P3,993.33 per month; on the basis, he was entitled to a total
retirement gratuity of P179,274.04, less the amount of P24,479.02 previously received as
retirement pay when he first retired on 29 February 1972, making a net balance of
P154,795.02.
GSIS adjusted Manapat's approved application for retirement to conform with his last
standardization monthly salary of P11,385.00. This adjustment resulted in a total collectible
retirement pay or gratuity of P486,634.84.
The approved adjusted claim of Manapat for retirement benefits was forwarded by the GSIS
to the Board of Tax Assessment Appeals of the City of Manila. The Assistant Department Head
of that Board in turn transmitted the papers to the Chairman of the Committee on the
Settlement of Claims for Retirement Gratuity and Terminal Leave Pay ("Committee").
Chairman of that Committee returned the papers to the Manila Board of Tax Assessment
Appeals without acting on the retirement gratuity claim of Manapat, upon the ground that it
was existing policy of the City of Manila that an employee who has reached the compulsory
retirement age of sixty-five (65) years must retire under R.A. No. 660 and not under the
provisions of R.A. No. 1626, as amended.
Manapat appealed the action of the Chairman of the Committee to the City Budget Officer.
The latter officer replied by informing Manapat that his claim for retirement pay was
forwarded to the then Mayor of the City of Manila, petitioner Gemiliano Lopez, Jr., as well as
to the City Legal Officer for legal advice. City Legal Officer of the City of Manila rendered a
written opinion that the City, as employer, had discretionary authority to allow or disallow a
claim to retire under R.A. No. 1616, as amended, considering that retirement under that law
was optional and payment of retirement benefits thereunder was subject to the availability of
funds. Manapat received a letter from petitioner City Mayor advising that his (Manapat's)
request for settlement of his claim for retirement gratuity under R.A. No. 1616 could not be
favorably acted upon due to financial constraints upon the City Government.
Manapat then commenced in the Regional Trial Court of the City of Manila, a special civil
action for mandamus of the City of Manila to allow Manapat to retire under the provisions of
R.A. No. 1616, as amended. The trial court dismissed the petition.
On appeal, the Court of Appeals reversed the decision of the trial court and issued a writ of
mandamus ordering petitioner officials to pay the retirement claim of Mr. Manapat.
present petition for review. Petitioners are insisting that private respondent Manapat retire
under the provisions of R.A. No. 660 because, under those provisions, the GSIS is bound to
pay the retirement benefits properly accruing to Manapat, while it is the City of Manila as
employer which is liable for the retirement gratuity appertaining under R.A. No. 1616 as
amended to Manapat. Upon the other hand, Manapat wishes to retire under the provisions of
R.A. No. 1616 as amended because the amount of the gratuity accruing under that law will be
significantly higher than the gratuity which would be payable under the terms of R.A. No. 660.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
ISSUES
(1) Whether a government employee, who has reached the compulsory retirement age of 65 years,
may opt to retire under RA 1616 as amended OR, alternatively, is entitled only to retirement
benefits under the mandatory retirement clause of RA 660.
(2) WON the City of Manila as employer may be compelled to pay the retirement benefits of its
employees under RA 1616, despite lack of available funds for that purpose .
HELD/RATIO
(1) OPT TO RETIRE. IMPLICATIONS IF RA 1616 OR RA 660: Under RA 660, GSIS is bound to pay the
retirement benefits properly accruing to Manapat, while it is the City of Manila as employer
which is liable for the retirement gratuity appertaining under RA 1616 as amended. Manapat
wishes to retire under the provisions of RA 1616 as amended because the amount of the
gratuity under that law will be significantly higher than the gratuity which would be payable
under the terms of R.A. No. 660.
At the time of his second retirement, Manapat rendered a total of 35 years of government
service, with the result that he had complied with the requirement for retirement under each
and every one of the 4 modes of retirement provided in Section 12 of C.A. No. 186 as
amended, quoted above, to wit:
12 (a) 30 years of government service 57 years old
12 (b) 30 years of government service regardless of age
12 (c) 20 years of government service regardless of age
12 (e) 15 years of government service 65 years old
Petitioners argument: A government employee who has reached the compulsory retirement
age of 65 years, with at least 15 years of service in the government, has no choice save to
retire under the provisions of Section 12(e) of C.A. No. 186 as amended (i.e., R.A. No. 660),
retirement thereunder being "automatic and compulsory."
SC says: While Section 12(e) of C.A. No. 186 as amended provides that "[r]etirement shall be
automatic and compulsory at the age of 65 years," there is nothing in the statute to suggest
that a government employee who, like private respondent Manapat, happens to satisfy the
requirements not only of Section 12(e), but also Section 12(a), 12(b) and 12(c), must
necessarily retire under Section 12(e). We find it very difficult to understand why a
government employee who reaches the compulsory retirement age of 65 but who has served
a total, not of fifteen (15) years (the minimum required under 12[e]) but rather 35 years (i.e.,
more than the years of service specified under 12[a], 12[b] and 12[c]), should be regarded as
deprived of the right to retire under 12(c) (i.e., R.A. No. 1616 as amended), where the
required number of years of services is only 20.
The interpretation urged by petitioners is conspicuously at war with the basic policy purpose
of CA 186 as amended by RA 1616 which is, of course, to create an added incentive for
qualified government employees to remain in the service of the government. The basic
principles for the construction of statutes tell us that a statute must be read in such a way as
to give effect to the purpose projected in the statute. Under this principle of effectiveness,
retirement statutes, in case of a real as distinguished from a merely ostensible doubt or
ambiguity, must be so construed as to give meaning and effect to their humanitarian
purposes and so as reasonably to benefit employees who had opted to stay in the services of
the government for so many years. Thus, we read Section 12(c) as applicable in respect of
private respondent Manapat who had complied with the requirement of that subsection of at
least 20 years of service. The benefits of Section 12(c) are, under its express terms, available
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 83
to anyone who shall have rendered at least 20 years of service, "regardless of [the] age"
reached by the retiree at the time of his retirement.
Agrees with CA that: Section 12(e) of C.A.. No. 186 as amended cannot and should not be
construed as limiting the mode of retirement of [a] government employee who was has
reached the age of 65 years
The phrase regardless of age found in Section 12(c) becomes particularly meaningful when
it is recalled that Section 12(e), which declares that retirement shall be automatic and
compulsory at age 65, nonetheless gives an employee who has already reached 6) years of
age the option to remain in the government service in order to complete the 15-year
minimum service requirement.
An employee who shall have satisfied the requirements for retirement under more than one
(1) subsection of Section 12 of CA 186 as amended is entitled to choose the subsection
(whose requirement he has complied with and) under which he shall retire. The option of
retiring under Section 12(c) or Section 12(e), in the circumstances of this case, belongs to
Manapat and not to his employer.
(2) YES. DOES MANDAMUS LIE? The application for retirement of Manapat having been approved
and adjusted under the provisions of Section 12(c), C.A. No. 186 asamended, it became
ministerial on the part of petitioner City of Manila as employer of Manapat to provide the
funds necessary to pay the latter's lawfully accrued retirement gratuity.
The fact that petitioner City of Manila may have no item in its General Appropriation
Ordinance specifically earmarking an amount of P486,634.84 for payment to Mr. Manapat,
presents no legal obstacle.
- Citing Makati v CA: Mandamus was available to compel, not only the enactment and
approval of the necessary appropriation
ordinance but also the corresponding payment of municipal funds therefor. - Section 12(c), CA 186
as amended, in fact effectively dispenses with the need for enacting an ordinance specifically
appropriating Manapat's retirement pay, or inserting an appropriate item to that effect in a
General Appropriation Ordinance.
PEOPLE V. JALOSJOS | Ynares-Santiago, 2000
FACTS
Romeo G. Jalosjos is a full-fledged member of Congress who is now confined at the national
penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness
on six counts is pending appeal.
The accused-appellant filed this motion asking that he be allowed to fully discharge the duties
of a Congressman, including attendance at legislative sessions and committee meetings
despite his having been convicted in the first instance of a non-bailable offense.
The primary argument of the movant is the "mandate of sovereign will." He states that the
sovereign electorate of the First District of Zamboanga del Norte chose him as their
representative in Congress. Having been re-elected by his constituents, he has the duty to
perform the functions of a Congressman. He calls this a covenant with his constituents made
possible by the intervention of the State. He adds that it cannot be defeated by insuperable
procedural restraints arising from pending criminal cases.
ISSUE
WON membership in Congress exempt an accused from statutes and rules which apply to validly
incarcerated persons in general.
PROF. GISELLA N. DIZON-REYES
 84 Ma. Jessa M. Alvarez
HELD/RATIO
NO. Election is the expression of the sovereign power of the people. In the exercise of suffrage, a
free people expects to achieve the continuity of government and the perpetuation of its benefits.
However, inspite of its importance, the privileges and rights arising from having been elected may
be enlarged or restricted by law. Our first task is to ascertain the applicable law.
There is an unfortunate misimpression in the public mind that election or appointment to
high government office, by itself, frees the official from the common restraints of general law.
Privilege has to be granted by law, not inferred from the duties of a position. In fact, the
higher the rank, the greater is the requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and members of the House of
Representatives, the latter customarily addressed as Congressmen, arises from a provision of
the Constitution. The history of the provision shows that privilege has always been granted in
a restrictive sense. The provision granting an exemption as a special privilege cannot be
extended beyond the ordinary meaning of its terms. It may not be extended by intendment,
implication or equitable considerations.
Because of the broad coverage of felony and breach of the peace, the exemption applied only
to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the
Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to
the same general laws governing all persons still to be tried or whose convictions were
pending appeal.
The present Constitution adheres to the same restrictive rule minus the obligation of
Congress to surrender the subject Congressman to the custody of the law. The requirement
that he should be attending sessions or committee meetings has also been removed. For
relatively minor offenses, it is enough that Congress is in session.
Re: Sec. 16 of Art. VI: He has not given any reason why he should be exempted from the
operation of Section 11, Article VI of the Constitution. The members of Congress cannot
compel absent members to attend sessions if the reason for the absence is a legitimate one.
The confinement of a Congressman charged with a crime punishable by imprisonment of
more than six months is not merely authorized by law, it has constitutional foundations.
Re: Aguinaldo ruling: It will not extricate him from his predicament. It can be readily seen that
the Aguinaldo case involves the administrative removal of a public officer for acts done prior
to his present term of office. It does not apply to imprisonment arising from the enforcement
of criminal law. Moreover, in the same way that preventive suspension is not removal,
confinement pending appeal is not removal. He remains a congressman unless expelled by
Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after final conviction, is public
self-defense. Society must protect itself. It also serves as an example and warning to others.
It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and
evaded capture despite a call from his colleagues in the House of Representatives for him to
attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the
same body whose call he initially spurned which accused-appellant is invoking to justify his
present motion. This can not be countenanced because, to reiterate, aside from its being
contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the
State's penal system.
Re: opportunities to go out: Theres no showing that the above privileges are peculiar to him
or to a member of Congress. Emergency or compelling temporary leaves from imprisonment
are allowed to all prisoners, at the discretion of the authorities or upon court orders.
Re: respect his mandate: Accused-appellant admits that while under detention, he has filed
several bills and resolutions. It also appears that he has been receiving his salaries and other
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2003-29275 October 6, 2011
monetary benefits. Succinctly stated, he has been discharging his mandate as a member of
the House of Representative consistent with the restraints upon one who is presently under
detention. Being a detainee, accused-appellant should not even have been allowed by the
prison authorities at the National Penitentiary to perform these acts.
When the voters of his district elected the accused-appellant to Congress, they did so with full
awareness of the limitations on his freedom of action. They did so with the knowledge that he
could achieve only such legislative results which he could accomplish within the confines of
prison. To give a more drastic illustration, if voters elect a person with full knowledge that he
suffering from a terminal illness, they do so knowing that at any time, he may no longer serve
his full term in office.
IT ALL BOILS DOWN TO EQUAL PROTECTION! Does being an elective official result in a
substantial distinction that allows different treatment? Is being a Congressman a substantial
differentiation which removes the accused-appellant as a prisoner from the same class as all
persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an
excuse to free a person validly in prison. The duties imposed by the "mandate of the people"
are multifarious. The accused-appellant asserts that the duty to legislative ranks highest in the
hierarchy of government. The accused-appellant is only one of 250 members of the House of
Representatives, not to mention the 24 members of the Senate, charged with the duties of
legislation. Congress continues to function well in the physical absence of one or a few of its
members. Depending on the exigency of Government that has to be addressed, the President
or the Supreme Court can also be deemed the highest for that particular duty. The
importance of a function depends on the need to its exercise. The duty of a mother to nurse
her infant is most compelling under the law of nature. A doctor with unique skills has the duty
to save the lives of those with a particular affliction. An elective governor has to serve
provincial constituents. A police officer must maintain peace and order. Never has the call of a
particular duty lifted a prisoner into a different classification from those others who are
validly restrained by law.
CENA V. CSC | Medialdea, 1992
FACTS
Gaudencio T. Cena entered the government service on November 16, 1978 as Legal Officer II
of the Law Department of Caloocan City where he stayed for seven (7) years until his transfer
on November 16, 1986 to the Office of the Congressman of the First District of Caloocan City
where he worked for only three (3) months, or until February 15, 1987, as Supervising Staff
Officer.
On July 16, 1987, he was appointed as Registrar of the Register of Deeds of Malabon, Metro
Manila, the position he held at the time he reached the compulsory retirement age of 65
years on January 22, 1991. By then, he would have rendered a total government service of 11
years, 9 months and 6 days. Before reaching his 65th birthday, he requested the Secretary of
Justice, through Administrator Teodoro G. Bonifacio of the Land Registration Authority (LRA),
that he be allowed to extend his service to complete the 15-year service requirement to
enable him to retire with full benefits of old-age pension under Section 11, par. (b) of P.D.
1146.
LRA Administrator observed that if petitioner's service as of January 22, 1991 of 10 years, 6
months and 6 days (should be 11 years, 9 months and 6 days) would he extended to 15 years,
he would have to retire on April 15, 1994 at the age of 68 years.
Civil Service Commission denied petitioner Cena's request for extension of service.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Petitioner Cena filed a motion for reconsideration. the Civil Service Commission set aside its
earlier resolution and allowed Gaudencio Cena a one-year extension of his service from
January 22, 1991 to January 22, 1992.
Petitioner's second motion for reconsideration was denied by the CSC.
Hence, the instant petition for review on certiorari alleging that the Civil Service Commission
committed a grave abuse of discretion when it granted the extension of petitioner's service as
Registrar of Deeds of Malabon, Metro Manila, for a period of only one (1) year pursuant to
CSC Memorandum Circular No. 27, Series of 1990, instead of three (3) years and three (3)
months to complete the 15-year service requirement for his retirement with full benefits as
provided under Section 11, par. (b) of Presidential Decree No. 1146, otherwise known as the
Revised Government Service Insurance Act of 1977.
ISSUE
WON a government employee who has reached the compulsory retirement age of 65 years, but
who has rendered 11 years, 9 months and 6 days of government service, be allowed to continue in
the service to complete the 15-year service requirement to enable him to retire with the benefits of
an old-age pension under Section 11 par. (b) of the Revised Government Service Insurance Act of
1977.
HELD/RATIO
YES. Section 12, par. (14), Chapter 3, Subtitle A, Title I, Book V of the Administrative Code of 1987
(November 24, 1987): (14) Take appropriate action on all appointments and other personnel
interpreted to authorize the Civil Service Commission to limit to only one (1) year the extension of
service of an employee who has reached the compulsory retirement age of 65 without having
completed 15 years of service, when said limitation has no relation to or connection with the
provision of the law supposed to be carried into effect.
Section 11 paragraph (b) of the Revised Government Service Insurance Act of 1977: Sec. 11.
Conditions for Old-Age Pension. (a) Old- age pension shall be paid to a member who: (b)
Unless the service is extended by appropriate authorities, retirement shall be compulsory for
an employee of sixty-five years of age with at least fifteen years of service: Provided, That if
he has less than fifteen years of service, he shall be allowed to continue in the service to
complete the fifteen years.
Being remedial in character, a statute creating a pension or establishing retirement plan
should be liberally construed and administered in favor of the persons intended to be
benefited thereby. The liberal approach aims to achieve the humanitarian purposes of the law
in order that the efficiency, security and well-being of government employees may be
enhanced.
Citing Abad Santos vs. Auditor General: A pension partakes of the nature of "retained wages"
of the retiree for a double purpose: (1) to entice competent men and women to enter the
government service, and (2) permit them to retire from the service with relative security, not
only for those who have retained their vigor, but more so for those who have been
incapacitated by illness or accident.
There is thus no justifiable reason in not allowing ordinary employees in the Executive Branch
on a case to case basis, to continue in the service to complete the 15-year service
requirement to avail of the old-age pension under Section 11 of P.D. 1146. By limiting the
extension of service to only one (1) year would defeat the beneficial intendment of the
retirement provisions of P.D. 1146.
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2003-29275 October 6, 2011 85
In resolving the question whether or not to allow a compulsory retiree to continue in the
service to complete the 15-year service, there must be present an essential factor before an
application under Section 11 par. (b) of P.D. 1146 may be granted by the employer or
government office concerned. In the case of officials of the Judiciary, the Court allows a
making up or compensating for lack of required age or service only if satisfied that the career
of the retiree was marked by competence, integrity, and dedication to the public service. It
must be so in the instant case.
The governing retirement law in the instant case is P.D. 1146 otherwise known as the
"Revised Government Service Insurance Act of 1977." The rule on limiting to only one (1) year
the extension of service of an employee who has reached the compulsory retirement age of
65 years, but has less than 15 years of service under Civil Service Memorandum Circular No.
27 s. 1990, cannot likewise be accorded validity because it has no relation to or connection
with any provision of P.D. 1146 supposed to be carried into effect. The rule was an addition to
or extension of the law, not merely a mode of carrying it into effect. The Civil Service
Commission has no power to supply perceived omissions in P.D. 1146.
Cena should not be covered by Memorandum Circular No. 65 issued by then Executive
Secretary Macaraig on June 14, 1988. Memorandum Circular No. 65 allowing retention of
service for only six (6) months for "extremely meritorious reasons" should apply only to
employees or officials who have reached the compulsory retirement age of 65 years but who,
at the same time, have completed the 15-year service requirement for retirement purposes.
It should not apply to employees or officials who have reached the compulsory retirement
age of 65 years, but who opted to avail of the old-age pension under par. (b), Section 11 of
P.D. 1146, in which case, they are allowed, at the discretion of the agency concerned, to
complete the 15-year service requirement.
RABOR V. CSC | Feliciano, 1995
FACTS
Dionisio M. Rabor is a Utility Worker in the Office of the Mayor, Davao City. He entered the
government service as a Utility Worker on 10 April 1978 at the age of 55 years.
Alma D. Pagatpatan, an official in the Office of the Mayor of Davao City, advised Dionisio M.
Rabor to apply for retirement, considering that he had already reached the age of sixty-eight
(68) years and seven (7) months, with thirteen (13) years and one (1) month of government
service. Rabor responded to this advice by exhibiting a "Certificate of Membership" issued by
the Government Service Insurance System ("GSIS"). At the bottom of this "Certificate of
Membership" is a typewritten statement of the following tenor: "Service extended to comply
15 years service reqts."
Thereupon, the Davao City Government, through Ms. Pagatpatan, wrote to the Regional
Director of the Civil Service Commission, Region XI, Davao City ("CSRO-XI"), informing the
latter of the foregoing and requesting advice "as to what action [should] be taken on this
matter."
Director Filemon B. Cawad of CSRO-XI advised Davao City Mayor Rodrigo R. Duterte that the
extension of services of Mr. Rabor is contrary to M.C. No. 65 of the Office of the President,
the relevant portion of which states: 'Officials and employees who have reached the
compulsory retirement age of 65 years shall not be retained in the service, except for
extremely meritorious reasons in which case the retention shall not exceed six (6) months.'
And that the services of Mr. Dominador Rabor as Utility Worker, in that office, is already non-
extendible."
Mayor Duterte advised Rabor to stop reporting for work.
PROF. GISELLA N. DIZON-REYES
 86 Ma. Jessa M. Alvarez
Petitioner Rabor then sent to the Regional Director, CSRO-XI, a letter asking for extension of
his services in the City Government until he "shall have completed the fifteen (15) years
service requirement in the Government so that he could also avail of the benefits of the
retirement laws given to employees of the Government." This request was denied by Director
Cawad.
Petitioner Rabor next wrote to the Office of the President seeking reconsideration of the
decision of Director Cawad, CSRO-XI. The Office of the President referred Mr. Rabor's letter to
the Chairman of the Civil Service Commission.
Civil Service Commission dismissed the appeal of Mr. Rabor and affirmed the action of
Director Cawad.
Mr. Rabor sought reconsideration of the CSC Resolution this time invoking the Decision of this
Court in Cena v. Civil Service Commission. Petitioner also asked for reinstatement with back
salaries and benefits, having been separated from the government service effective 16 August
1991. Rabor's motion for reconsideration was denied by the Commission.
Petitioner Rabor sent another letter dated 16 April 1993 to the Office of the Mayor, Davao
City, again requesting that he be allowed to continue rendering service to the Davao City
Government as Utility Worker in order to complete the fifteen (15) years service requirement
under P.D. No. 1146. This request was once more denied by Mayor Duterte who pointed out
that, under Cena, grant of the extension of service was discretionary on the part of the City
Mayor.
Mr. Rabor decided to come to this Court.
ISSUE
WON Cena squarely applies.
HELD/RATIO
NO. SC reversed the Cena doctrine.
Basis of Cena ruling:
1. Sec. 11 Conditions for Old-Age Pension. (a) Old-Age Pension shall be paid to a member who
(1) has at least fifteen (15) years of service; (2) is at least sixty (60) years of age; and (3) is separated
from the service.
(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 shall he allowed to continue in the service to
completed the fifteen (15) years.
2. Being remedial in character, a statute granting a pension or establishing [a] retirement plan
should be liberally construed and administered in favor of persons intended to be benefitted
thereby. The liberal approach aims to achieve the humanitarian purposes of the law in order that
efficiency, security and well-being of government employees may be enhanced.
While Section 11 (b) appeared cast in verbally unqualified terms, there were (and still are) 2
administrative issuances which prescribe limitations on the extension of service that may be
granted to an employee who has reached 65 years of age.
1. Civil Service Commission Circular No. 27, Series of 1990 - Extension of Service of Compulsory
Retiree to Complete the Fifteen Years Service Requirement for Retirement Purposes.
2. Memorandum Circular No. 65 of the Office of the President, dated 14 June 1988: Officials or
employees who have reached the compulsory retirement age of 65 years shall not be retained in
the service, except for extremely meritorious reasons in which case the retention shall not exceed
six (6) months.
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2003-29275 October 6, 2011
Medialdea, J. resolved the challenges posed by the above 2 administrative regulations by 1.
considering as invalid Civil Service Memorandum No. 27 and 2. by interpreting the Office of
the President's Memorandum Circular No. 65 as inapplicable to the case of Cena.
Cena, in striking down CSC Memorandum No. 27, took a very narrow view on the question of
what subordinate rule-making by an administrative agency is permissible and valid. Citing
People v Exconde: It is well established in this jurisdiction that, while the making of laws is a
non-delegable activity that corresponds exclusively to Congress, nevertheless, the latter may
constitutionally delegate authority and promulgate rules and regulations to implement a
given legislation and effectuate its policies, for the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and provide for the multifarious and complex
situations that may be met in carrying the law into effect. All that is required is that the
regulation should be germane to the objects and purposes of the law; that the regulation be
not in contradiction with it, but conform to standards that the law prescribes.
Citing Edu v Ericta: Standards which our Court has in prior case law upheld as sufficient for
purposes of compliance with the requirements for validity of subordinate or administrative
rule-making: "public welfare," "necessary in the interest of law and order, "public interest,"
and "justice and equity and substantial merits of the case,
Clearly, therefore, Cena when it required a considerably higher degree of detail in the statute
to be implemented, went against prevailing doctrine. It seems clear that if the governing or
enabling statute is quite detailed and specific to begin with, there would be very little need
(or occasion) for implementing administrative regulations. It is, however, precisely the
inability of legislative bodies to anticipate all (or many) possible detailed situations in respect
of any relatively complex subject matter, that makes subordinate, delegated rule-making by
administrative agencies so important and unavoidable. All that may be reasonably; demanded
is a showing that the delegated legislation consisting of administrative regulations are
germane to the general purposes projected by the governing or enabling statute.
We consider that the enabling statute that should appropriately be examined is the present
Civil Service law found in Book V, Title I, Subtitle A, of Executive Order No. 292 dated 25
July 1987, otherwise known as the Administrative Code of 1987 and not alone P.D. No.
1146, otherwise known as the "Revised Government Service Insurance Act of 1977." For the
matter of extension of service of retirees who have reached sixty-five (65) years of age is an
area that is covered by both statutes and not alone by Section 11 (b) of P.D. 1146. This is
crystal clear from examination of many provisions of the present civil service law.
It was on the bases of the above quoted provisions of the 1987 Administrative Code that the
Civil Service Commission promulgated its Memorandum Circular No. 27. In doing so, the
Commission was acting as "the central personnel agency of the government empowered to
promulgate policies, standards and guidelines for efficient, responsive and effective personnel
administration in the government." It was also discharging its function of "administering the
retirement program for government officials and employees" and of "evaluat[ing]
qualifications for retirement."
We find it very difficult to suppose that the limitation of permissible extensions of service
after an employee has reached sixty-five (65) years of age has no reasonable relationship or is
not germane to the foregoing provisions of the present Civil Service Law. The physiological
and psychological processes associated with ageing in human beings are in fact related to the
efficiency and quality of the service that may be expected from individual persons.
The policy considerations which guided the Civil Service Commission in limiting the maximum
extension of service allowable for compulsory retirees, were summarized by Gri o-Aquino, J.
in her dissenting opinion in Cena: Worth pondering also are the points raised by the Civil
Service Commission that extending the service of compulsory retirees for longer than one (1)
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
year would: (1) give a premium to late-comers in the government service and in effect
discriminate against those who enter the service at a younger age; (2) delay the promotion of
the latter and of next-in-rank employees; and (3) prejudice the chances for employment of
qualified young civil service applicants who have already passed the various government
examination but must wait for jobs to be vacated by "extendees" who have long passed the
mandatory retirement age but are enjoying extension of their government service to
complete 15 years so they may qualify for old-age pension.
Cena laid heavy stress on the interest of retirees or would be retirees, something that is, in
itself, quite appropriate. At the same time, however, there should be countervailing stress on
the interests of the employer agency and of other government employees as a whole. The
results flowing from the striking down of the limitation established in Civil Service
Memorandum Circular No. 27 may well be "absurd and inequitable," as suggested by Mme.
Justice Gri o-Aquino in her dissenting opinion. An employee who has rendered only 3 years of
government service at age 65 can have his service extended for 12 years and finally retire at
the age of 77. This reduces the significance of the general principle of compulsory retirement
at age 65 very close to the vanishing point.
Cena should be and is hereby modified to this extent: [1] that Civil Service Memorandum
Circular No. 27, Series of 1990, more specifically paragraph (1) thereof, is hereby declared
valid and effective. Section 11 (b) of P.D. No. 1146 must, accordingly, be read together with
Memorandum Circular No. 27.
We reiterate, however, the holding in Cena that the head of the government agency
concerned is vested with discretionary authority to allow or disallow extension of the service
of an official or employee who has 65 years of age without completing 15 years of
government service; this discretion is, nevertheless, to be exercised conformably with the
provisions of Civil Service Memorandum Circular No. 27, Series of 1990.
NERI V. SENATE | Leonardo-De Castro, 2008
FACTS
The Department of Transportation and Communication (DOTC) entered into a contract with
Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services
for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be financed by the Peoples Republic of
China.
In connection with this NBN Project, various Resolutions were introduced in the Senate
regarding investigation on the ZTE-NBN project.
Respondent Committees initiated the investigation by sending invitations to certain
personalities and cabinet officials involved in the NBN Project. Petitioner was among those
invited.
In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high
executive officials and power brokers were using their influence to push the approval of the
NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-
Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it
into a government-to-government project, to be financed through a loan from the Chinese
Government.
On September 26, 2007, petitioner testified before respondent Committees for eleven (11)
hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin
Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Arroyo about the bribery attempt and that she
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 87
instructed him not to accept the bribe. However, when probed further on what they
discussed about the NBN Project, petitioner refused to answer, invoking executive privilege.
In particular, he refused to answer the questions on (a) whether or not President Arroyo
followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c)
whether or not she directed him to approve.
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner,
requiring him to appear and testify on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita
requested respondent Committees to dispense with petitioners testimony on the ground of
executive privilege. The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as well as economic relations
with the Peoples Republic of China.
On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on
November 22, 2007, the latter issued the show cause Letter requiring him to explain why he
should not be cited in contempt.
petitioner replied to respondent Committees, manifesting that it was not his intention to
ignore the Senate hearing and that he thought the only remaining questions were those he
claimed to be covered by executive privilege
Respondent Committees found petitioners explanations unsatisfactory. Without responding
to his request for advance notice of the matters that he should still clarify, they issued the
Order citing him in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear
and give his testimony.
petitioner moved for the reconsideration of the above Order. He insisted that he has not
shown any contemptible conduct worthy of contempt and arrest. He emphasized his
willingness to testify on new matters, however, respondent Committees did not respond to
his request for advance notice of questions. He also mentioned the petition for certiorari he
filed on December 7, 2007. According to him, this should restrain respondent Committees.
Petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent
Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the
said contempt Order.
the Court issued a Status Quo Ante Order
Petitioner contends that his conversations with President Arroyo are candid discussions
meant to explore options in making policy decisions. According to him, these discussions
dwelt on the impact of the bribery scandal involving high government officials on the
countrys diplomatic relations and economic and military affairs and the possible loss of
confidence of foreign investors and lenders in the Philippines. He also emphasizes that his
claim of executive privilege is upon the order of the President and within the parameters laid
down in Senate v. Ermita and United States v. Reynolds. Lastly, he argues that he is precluded
from disclosing communications made to him in official confidence under Section 7 of
Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public
Officials and Employees, and Section 24 (e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1) petitioners testimony is
material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid
justification for petitioner to claim executive privilege; (3) there is no abuse of their authority
to order petitioners arrest; and (4)petitioner has not come to court with clean hands.
President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464
and Memorandum Circular No. 108. She advised executive officials and employees to
follow and abide by the Constitution, existing laws and jurisprudence, including, among
PROF. GISELLA N. DIZON-REYES
 88 Ma. Jessa M. Alvarez
others, the case of Senate v. Ermita when they are invited to legislative inquiries in aid of
legislation.
ISSUE
WON the communications elicited by the subject 3 questions covered by executive privilege.
HELD/RATIO
YES. In the landmark case of Senate v. Ermita there is a distinction between the legislative and
oversight powers of the Congress as embodied under Sections 21 and 22, respectively, of Article VI
of the Constitution. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim
is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to
the power to conduct a question hour, the objective of which is to obtain information in pursuit of
Congress oversight function. Simply stated, while both powers allow Congress or any of its
committees to conduct inquiry, their objectives are different. Unlike in Section 21, Congress cannot
compel the appearance of executive officials under Section 22.
When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in keeping with the separation
of powers, states that Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is in aid of legislation under Section 21,
the appearance is mandatory for the same reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated by compulsory process only to
the extent that it is performed in pursuit of legislation. This is consistent with the intent
discerned from the deliberations of the Constitutional Commission
The revocation of E.O. 464 does not in any way diminish our concept of executive privilege.
This is because this concept has Constitutional underpinnings.
The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege. In United States v. Nixon, the U.S. Court recognized a great public
interest in preserving the confidentiality of conversations that take place in the Presidents
performance of his official duties. It thus considered presidential communications as
presumptively privileged. Apparently, the presumption is founded on the Presidents
generalized interest in confidentiality. The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide the President and those who assist him with
freedom to explore alternatives in the process of shaping policies and making decisions and to
do so in a way many would be unwilling to express except privately.
In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that there are two (2)
kinds of executive privilege; one is the presidential communications privilege and, the other
is the deliberative process privilege. The former pertains to communications, documents or
other materials that reflect presidential decision-making and deliberations and that the
President believes should remain confidential. The latter includes advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.
Accordingly, they are characterized by marked distinctions. Presidential communications
privilege applies to decision-making of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the constitutional principle of
separation of power and the Presidents unique constitutional role; the second on common
law privilege. Unlike the deliberative process privilege, the presidential communications
privilege applies to documents in their entirety, and covers final and post-decisional materials
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2003-29275 October 6, 2011
as well as pre-deliberative ones. As a consequence, congressional or judicial negation of the
presidential communications privilege is always subject to greater scrutiny than denial of the
deliberative process privilege.
In Re: Sealed Case confines the privilege only to White House Staff that has operational
proximity to direct presidential decision-making. Thus, the privilege is meant to encompass
only those functions that form the core of presidential authority, involving what the court
characterized as quintessential and non-delegable Presidential power, such as
commander-in-chief power, appointment and removal power, the power to grant pardons
and reprieves, the sole-authority to receive ambassadors and other public officers, the power
to negotiate treaties, etc.
In Chavez v. PCGG, this Court held that there is a governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other security
matters. In Chavez v. PEA, there is also a recognition of the confidentiality of Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate
v. Ermita, the concept of presidential communications privilege is fully discussed.
As may be gleaned from the above discussion, the claim of executive privilege is highly
recognized in cases where the subject of inquiry relates to a power textually committed by
the Constitution to the President, such as the area of military and foreign relations.
elements of presidential communications privilege, to wit:
o The protected communication must relate to a quintessential and non-delegable
presidential power.
o The communication must be authored or solicited and received by a close
advisor of the President or the President himself. The judicial test is that an
advisor must be in operational proximity with the President.
o The presidential communications privilege remains a qualified privilege that may
be overcome by a showing of adequate need, such that the information sought
likely contains important evidence and by the unavailability of the information
elsewhere by an appropriate investigating authority.
Using the above elements, we are convinced that, indeed, the communications elicited by the
three (3) questions are covered by the presidential communications privilege. First, the
communications relate to a quintessential and non-delegable power of the President, i.e.
the power to enter into an executive agreement with other countries. This authority of the
President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. Second, the communications are
received by a close advisor of the President. Under the operational proximity test,
petitioner can be considered a close advisor, being a member of President Arroyos cabinet.
And third, there is no adequate showing of a compelling need that would justify the limitation
of the privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority.
The foregoing is consistent with the earlier case of Nixon v. Sirica, where it was held that
presidential communications are presumptively privileged and that the presumption can be
overcome only by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing interests of the political
branches of the government in the manner that preserves the essential functions of each
Branch. Here, the record is bereft of any categorical explanation from respondent
Committees to show a compelling or critical need for the answers to the three questions in
the enactment of a law. Instead, the questions veer more towards the exercise of the
legislative oversight function under Section 22 of Article VI rather than Section 21 of the same
Article. Senate v. Ermita ruled that the the oversight function of Congress may be facilitated
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 89

by compulsory process only to the extent that it is performed in pursuit of legislation. It is The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement.
conceded that it is difficult to draw the line between an inquiry in aid of legislation and an It serves as the formal claim of privilege. There, he expressly states that this Office is
inquiry in the exercise of oversight function of Congress. In this regard, much will depend on constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita,
the content of the questions and the manner the inquiry is conducted. and has advised Secretary Neri accordingly. Obviously, he is referring to the Office of the
Respondent Committees argue that a claim of executive privilege does not guard against a President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter
possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in was even adjudged to be sufficient.
United States v. Nixon that demonstrated, specific need for evidence in pending criminal
trial outweighs the Presidents generalized interest in confidentiality. However, the
present cases
distinction with the Nixon case is very evident.
In Nixon, there is a pending criminal proceeding where the information is requested and
it is the demands of due process of law and the fair administration of criminal justice that
the information be disclosed. Unlike in Nixon, the information here is elicited, not in a
criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that
the validity of the claim of executive privilege depends not only on the ground invoked but,
also, on the procedural setting or the context in which the claim is made. Furthermore, in
Nixon, the President did not interpose any claim of need to protect military, diplomatic or
sensitive national security secrets. In the present case, Executive Secretary Ermita
categorically claims executive privilege on the grounds of presidential communications
privilege in relation to her executive and policy decision-making process and diplomatic
secrets.
Respondent Committees further contend that the grant of petitioners claim of executive
privilege violates the constitutional provisions on the right of the people to information on
matters of public concern. We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them during the
September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he
expressly manifested his willingness to answer more questions from the Senators, with the
exception only of those covered by his claim of executive privilege.
- The right to public information, like any other right, is subject to limitation. Section 7 of
Article III. The provision itself expressly provides the limitation, i.e. as may be provided by law.
Some of these laws are Section 7 of Republic Act (R.A.) No. 713, Article 229 of the Revised
Penal Code, Section 3 (k) of R.A. No. 3019, and Section 24(e) of Rule 130 of the Rules of Court.
These are in addition to what our body of jurisprudence classifies as confidential and what our
Constitution considers as belonging to the larger concept of executive privilege.
More than anything else, though, the right of Congress or any of its Committees to obtain
information in aid of legislation
cannot be equated with the peoples right to public information.
The distinction between such rights is laid down in Senate v. Ermita: There are, it bears
noting, clear distinctions between the right of Congress to information which underlies the
power of inquiry and the right of people to information on matters of public concern. For one,
the demand of a citizen for the production of documents pursuant to his right to information
does not have the same obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress, not to an individual citizen.
The Claim of Executive Privilege is Properly Invoked
Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim
of privilege, lodged by the head of the department which has control over the matter. A
formal and proper claim of executive privilege requires a precise and certain reason for
preserving their confidentiality.

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 90 Ma. Jessa M. Alvarez
C. Liabilities
1. In general RA 6713
2. Administrative Liability
3. Civil Liability
COJUANGCO V. CA | Panganiban, 1999
FACTS
Eduardo Cojuangco is a known businessman-sportsman owning several racehorses which he
entered in the sweepstakes races. Several of his horses won the races on various dates,
landing first, second or third places.
Cojuangco sent letters of demand to PCSO for the collection of the prizes due him.
PCSO replied that the demanded prizes are being withheld on advice of Commissioner Ramon
A. Diaz of the PCGG.
This case was filed before the RTC. But before receipt of the summons PCGG advised PCSO
that it poses no more objection to the remittance of the prize winnings.
The prize winning were refused by Cojuangco on the ground that the case was already filed in
court.
RTC: PCSO had no authority to withhold winnings since no writ of sequestration had been
issued by the PCGG. Carrascoso had acted in bad faith amounting to the persecution and
harassment of Cojuangco and his family. Carrascoso was asked to pay moral and exemplary
damages.
CA: reversed finding of bad faith on the part of Carrascoso as he was merely obeying
instructions.
ISSUES
(1) WON the award for damages against Carrascoso is warranted by evidence and the law? Partly
meritorious.
(2) WON he was properly represented by the Office of the Government Corporate Counsel (OGCC)
in the appeal.
HELD/RATIO
(1) PARTLY YES. To hold public officers personally liable for moral and exemplary damages and
for attorney's fees for acts done in the performance of official functions, the plaintiff must
prove that these officers exhibited acts characterized by evident bad faith, malice, or gross
negligence. But even if their acts had not been so tainted, public officers may still be held
liable for nominal damages if they had violated the plaintiff's constitutional rights.
Carrascoso did not act in bad faith. Bad faith does not simply connote bad judgment or simple
negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a
wrong, a breach of a known duty due to some motive or interest or ill will that partakes of the
nature of fraud.
CAs decision quoted: The letter of Carrascoso to PCGG Chair Jovito Salonga, readily display
uncertainties in the mind of Carrascoso as to the extent of the sequestration against the
properties of the plaintiff. In the said letter the first prize xxx were, in the meantime, being
withheld to "avoid any possible violation of your sequestration order on the matter" because
while he is aware of the sequestration order issued against the properties of Eduardo
Cojuangco, he is not aware of the extent and coverage thereof. It was for that reason that, in
the same letter, Carrascoso requested for a clarification whether the prizes are covered by
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2003-29275 October 6, 2011
the order and if it is in the affirmative, for instructions on the proper disposal of the 2 prizes
taking into account the shares of the trainer and the groom.
Carrascoso's decision to withhold petitioner's winnings could not be characterized as arbitrary
or whimsical, or even the product of ill will or malice. He had particularly sought from PCGG a
clarification of the extent and coverage of the sequestration order issued against the
properties of petitioner.
The extant rule is that a public officer shall not be liable by way of moral and exemplary
damages for acts done in the performance of official duties, unless there is a clear showing of
bad faith, malice or gross negligence. Attorney's fees and expenses of litigation cannot be
imposed either, in the absence of a clear showing of any of the grounds provided therefor
under the Civil Code. TCs award of these kinds of damages must perforce be deleted, as ruled
by the Court of Appeals.
However, under Art. 32 CC, he may still be held liable for damages. it is not necessary that the
public officer acted with malice or bad faith. To be liable, it is enough that there was a
violation of the constitutional rights of petitioner, even on the pretext of justifiable motives or
good faith in the performance of one's duties. petitioner's right to the use of his property was
unduly impeded. While Carrascoso may have relied upon the PCGG's instructions, he could
have further sought the specific legal basis therefor. A little exercise of prudence would have
disclosed that there was no writ issued specifically for the sequestration of the racehorse
winnings of petitioner. There was apparently no record of any such writ covering his
racehorses either. The issuance of a sequestration order requires the showing of a prima facie
case and due regard for the requirements of due process. 38 The withholding of the prize
winnings of petitioner without a properly issued sequestration order clearly spoke of a
violation of his property rights without due process of law.
(2) YES. -The representation of the OGCC on behalf of the PCSO and Mr. Carrascoso is pursuant to
its basic function to "act as the principal law office of all government-owned or controlled
corporations, their subsidiaries, other corporate offsprings and government acquired asset
corporations and . . . [to] exercise control and supervision over all legal departments or
divisions maintained separately and such powers and functions as are now or may hereafter
be provided by law."
The OGCC was therefore duty-bound to defend the PCSO because the latter, under its
charter, is a government-owned corporation. The government counsel's representation
extends to the concerned government functionary's officers when the issue involves the
latter's official acts or duties. Granting that upon his separation from the government,
Carrascoso ceased to be entitled to the legal services of the government corporate counsel,
this development does not automatically revoke or render ineffective his notice of appeal of
the trial court's Decision.
TECSON V. SANDIGANBAYAN | Quisumbing, 1999
FACTS
Salvacion Luzana is a resident of Poblacion, Prosperidad, Agusan del Sur. She is a neighbor of
the Demetrio Tecson. She claims to be a housewife who occasionally dabbles in farming.
Upon the offer of Tecson, he and Mrs. Luzana agreed to engage in an investment business.
They would sell tickets at P100.00 each which after 30 days would earn P200.00 or more. She
would buy appliances and cosmetics at a discount, with the use of the proceeds of the sales of
tickets, and resell them. No other details were disclosed on how the business would operate,
and Tecson does not appear to have contributed any monetary consideration to the capital.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Tecson also acted as agent selling tickets. He got on that day early in the morning two
booklets of tickets, for which he signed the covers of the booklets to acknowledge receipt.
Before noon of the same day he returned after having already sold 40 tickets in the amount of
P4,000.00, bringing with him a Mayors Permit in the name of Mrs. Luzana for their business
called LD Assurance Privileges. He asked for a cash advance of P4,000.00 which he would use
during the fiesta on September 29, 1989, and he would not release the Mayors Permit unless
the cash advance was given him. Mrs. Luzana reluctantly acceded, saying that it was not the
due date yet, so he was getting the cash advances on his share. Tecson signed for the cash
advance.
Mrs. Luzana secured a Business Permit in accordance with the instructions of Tecson. The
permit was in her name but the same was for the operation of Prosperidad Investment and
Sub-Dealership, the new name of the business. In the session of the Sangguniang Bayan of
Prosperidad, Agusan del Sur on October 17, 1989 presided over by Tecson, Resolution No. 100
was passed revoking the business permit at the instance of the Provincial Director of the
Department of Trade and Industry.
With the revocation of her business permit, private complainant below filed an administrative
case against petitioner, for violation of Section 3 [c], R.A. No. 3019 and Section 60 of B.P. Blg.
337 (then Local Government Code) with the Department of Interior and Local Government
(DILG).
private complainant below also filed a civil case against petitioner for damages with the
Regional Trial Court
A complaint was likewise filed with the Ombudsman for violation of R.A. No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.
It was subsequently referred to the Sandiganbayan, which took jurisdiction.
(in the Municipality of Prosperidad, Province of Agusan del Sur, the accused, a public officer,
being then the Municipal Mayor of Prosperidad, Agusan del Sur, while in the performance of
his administrative and official functions and committing the offense in relation to his office,
requested and received for his benefit the amount of P4,000.00, for and in consideration of
the issuance of a permit to operate an investment business, in favor of Salvacion Luzana, a
person for whom the accused has in fact received and obtained a mayors permit or license.)
The Sangguniang Panlalawigan of Agusan del Sur dismissed the administrative case.
A compromise agreement was reached between the litigants in Civil Case. The trial court
approved the same.
The Sandiganbayan issued an order for petitioners arrest.
The Sandiganbayan, First Division rendered the assailed decision convicting appellant of
violating R.A. No. 3019. Petitioner seasonably filed a motion for reconsideration. The
respondent court denied the same.
Hence, this instant petition. Petitioner contends that the respondent court/sandiganbayan
(1st division) gravely abused its discretion, tantamount to lack of or in excess of jurisdiction in
proceeding with the trial and conviction despite the existence of judgment of acquittal
rendered by the sangguniang panlalawigan exonerating the accused.
ISSUES
(1) WON Sangguniang Panlalawigans decision exonerating the accused serves as a bar by prior
judgment to the decision of the SB.
(2) WON there was a violation of the Constitutional right of the accused against double jeopardy.
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2003-29275 October 6, 2011 91
HELD/RATIO
(1) NO.
- Petitioner: Dismissal of the admin case before the Sangguniang Panlalawigan of Agusan del Sur is
conclusive and binding upon the parties. Relying on our ruling in B.F. Goodrich Philippines, Inc. v.
Workmen's Compensation Commission, he theorizes that the rule, which prohibits the reopening of
matters already determined by competent judicial authority, applies to quasi-judicial bodies or
administrative offices. Having been exonerated by the Sangguniang Panlalawigan of Agusan del Sur
in the administrative case, he now submits the same is res judicata and thus bars the
Sandiganbayan from hearing his case.
SC says: Your theory has no leg to stand on. [1] Res judicata is a doctrine of civil law. It thus
has no bearing in the criminal proceedings before the Sandiganbayan. [2] it is a basic principle
of the law on public officers that a public official or employee is under a three-fold
responsibility for violation of duty or for a wrongful act or omission. This simply means that a
public officer may be held civilly, criminally, and administratively liable for a wrongful doing.
Thus, if such violation or wrongful act results in damages to an individual, the public officer
may be held civilly liable to reimburse the injured party. If the law violated attaches a penal
sanction, the erring officer may be punished criminally. [3] Such violation may also lead to
suspension, removal from office, other administrative sanctions. This administrative liability is
separate and distinct from the penal and civil liabilities. Thus, the dismissal of an
administrative case does not necessarily bar the filing of a criminal prosecution for the same
or similar acts, which were the subject of the administrative complaint. We conclude,
therefore, that the decision of the Sangguniang Panlalawigan of Agusan del Sur exonerating
petitioner in Administrative Case No. SP 90-01 is no bar to the criminal prosecution before the
Sandiganbayan.
As to the amicable settlement: A complaint for misconduct, malfeasance or misfeasance
against a public officer or employee cannot just be withdrawn at any time by the
complainant. This is because there is a need to maintain the faith and confidence of the
people in the government and its agencies and instrumentalities. The inescapable conclusion,
therefore, is that the order of the trial court dismissing Civil Case No. 716 did not bar the
proceedings before the Sandiganbayan.
Petitioner: Being tried before the Sandiganbayan violated his constitutional protection against
double jeopardy since the Sangguniang Panlalawigan of Agusan del Sur had already cleared
him of all charges.
(2) NO. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court;
(3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant
was acquitted or convicted or the case was dismissed or otherwise terminated without the
express consent of the accused. None of the foregoing applies to the hearings conducted by
the Sangguniang Panlalawigan of Agusan del Sur in Adm. Case No. SP 90-01. It must be
stressed that the said proceedings were not criminal, but administrative in nature. Hence,
double jeopardy will not lie.
OCAMPO V. OMBUDSMAN | Buena, 2000
FACTS
Jesus Ocampo is the Training Coordinator of. NIACONSULT, INC., a subsidiary of the National
Irrigation Administration. K.N. Paudel of the Agricultural Development Bank of Nepal (ADBN)
wrote a letter to NIACONSULT requesting a training proposal on small-scale community
irrigation development. petitioner as the training coordinator of the NIACONSULT, sent a
letter-proposal requested by ABDN. Another letter was sent by petitioner to Dr. Peiter
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 92 Ma. Jessa M. Alvarez
Roeloffs of ADBN confirming the availability of NIACONSULT to conduct the training program
and formally requesting advance payment of thirty (30%) percent of the training fees
NIACONSULT conducted the training program for six Nepalese Junior Engineers from February
6 to March 7, 1989. ADBN, thru its representative, Deutsche Gesselschaft ) Technische
Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the Federal Republic of Germany paid
to the petitioner the agreed training fee in two installments
NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a letter to petitioner
demanding the turn-over of the total training fee paid by ADBN which petitioner personally
received. petitioner failed to remit the said amount prompting NIACONSULT through its
president, Maximino Eclipse, to file an administrative case before respondent OMBUDSMAN
for serious misconduct and/or fraud or willful breach of trust.
The Ombudsman issued a resolution recommending that respondent Jesus C. Ocampo be
discharged from the service, with forfeiture of benefits and special perpetual disqualification
to hold office in the government or any government-owned or controlled corporation;
without prejudice to any civil action NIACONSULT, Inc., may institute to recover the amount
so retained by the respondent.
Petitioner moved for reconsideration and to re-open the case which the Ombudsman denied.
Petitioner moved for reconsideration and to re-open the case. While the case is pending,
petitioner filed a Manifestation stating that the criminal complaint for estafa and falsification
filed against him based on the same facts or incidents which gave rise to the administrative
case, was dismissed by the Regional Trial Court. With the dismissal of the criminal case,
petitioner manifests that the administrative case can no longer stand on its own and
therefore should be dismissed.
ISSUE
WON the dismissal of the criminal case precludes the continuation of the administrative case.
HELD/RATIO
NO. They require different quantum of evidence.
The dismissal of the criminal case will not foreclose administrative action filed against
petitioner or give him a clean bill of health in all respects. The RTC, in dismissing the criminal
complaint, was simply saying that the prosecution was unable to prove the guilt of petitioner
beyond reasonable doubt, a condition sine qua non for conviction. The lack or absence of
proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for
there is another class of evidence which, though insufficient to establish guilt beyond
reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too,
there is the "substantial evidence" rule in administrative proceedings which merely requires
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Thus, considering the difference in the quantum of evidence, as well as the
procedure followed and the sanctions imposed in criminal and administrative proceedings,
the findings and conclusions in one should not necessarily be binding on the other.
LACSON V. EXECUTIVE SECRETARY | Martinez, 1999
FACTS
11 persons believed to be members of the Kuratong Baleleng gang were slain along
Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and
Intelligence Task Group (ABRITG.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what
actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not
a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman
Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for
Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolve
from any criminal liability all the PNP officers and personnel allegedly involved in the May 18,
1995 incident, with a finding that the said incident was a legitimate police operation.
A review board led by Overall Deputy Ombudsman Francisco Villa modified the Blancaflor
panels finding and recommended the indictment for multiple murder against twenty-six (26)
respondents, including herein petitioner and intervenors. This recommendation was
approved by the Ombudsman.
All the accused filed separate motions questioning the jurisdiction of the Sandiganbayan,
asserting that under the amended informations, the cases fall within the jurisdiction of the
Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. They
contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or
more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher,
or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The
highest ranking principal accused in the amended informations has the rank of only a Chief
Inspector, and none has the equivalent of at least SG 27.
While these motions for reconsideration were pending resolution, and even before the issue
of jurisdiction cropped up with the filing of the amended informations on March 1, 1996,
House Bill No. 229910 as well as Senate Bill No. 84412 were introduced in Congress,
defining/expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought to
amend the jurisdiction of the Sandiganbayan by deleting the word "principal" form the phrase
"principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were
consolidated and later approved into law as R.A. No. 824913
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution denying the
motion for reconsiderationConsidering that three of the accused in each of these cases are
PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson,
and that trial has not yet begun in all these cases - in fact, no order of arrest has been issued -
this court has competence to take cognizance of these cases.
Petitioner now questions the constitutionality of Section 4 R.A. No. 8249, including Section 7
thereof which provides that the said law "shall apply to all cases pending in any court over
which trial has not begun as of the approval hereof."
ISSUES
(1) WON Sections 4 and 7 of Republic Act No. 8249 an act which further defines the
jurisdiction of the Sandiganbayan are unconstitutional.
(2) WON the offense of multiple murder was committed in relation to the office of the accussed
PNP officers.
HELD/RATIO
NO. Considering that herein petitioner and intervenors are being charged with murder which is a
felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional
offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to
"other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to
their office. "The phrase" other offen ses or felonies" is too broad as to include the crime of
murder, provided it was committed in relation to the accused's officials functions. Thus, under said
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 93

paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the
offender that is, whether he is one of those public officers or employees enumerated in
paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do
not make any reference to the criminal participation of the accused public officer as to whether he
is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply
restored the original provisions of P.D. 1606 which does not mention the criminal participation of
the public officer as a requisite to determine the jurisdiction of the Sandiganbayan.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of
constitutionality and reasonableness of the questioned provisions. The classification between
those pending cases involving the concerned public officials whose trial has not yet
commence and whose cases could have been affected by the amendments of the
Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already
started as of the approval of the law, rests on substantial distinction that makes real
differences. In the first instance, evidence against them were not yet presented, whereas in
the latter the parties had already submitted their respective proofs, examined witnesses and
presented documents. Since it is within the power of Congress to define the jurisdiction of
courts subject to the constitutional limitations, it can be reasonably anticipated that an
alteration of that jurisdiction would necessarily affect pending cases, which is why it has to
privide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors
cannot now claim that Sections 4 and 7 placed them under a different category from those
similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to
"all case involving" certain public officials and, under the transitory provision in Section 7, to
"all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is
not particularly directed only to the Kuratong Baleleng cases. The transitory provision does
not only cover cases which are in the Sandiganbayan but also in "any court." It just happened
that Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases
where trial had already begun are not affected by the transitory provision under Section 7 of
the new law
In their futile attempt to have said sections nullified, heavy reliance is premised on what is
perceived as bad faith on the part of a Senator and two Justices of the Sandiganbayan for
their participation in the passage of the said provisions. In particular, it is stressed that the
Senator had expressed strong sentiments against those officials involved in the Kuratong
Baleleng cases during the hearings conducted on the matter by the committee headed by the
Senator. Petitioner further contends that the legislature is biased against him as he claims to
have been selected from among the 67 million other Filipinos as the object of the deletion of
the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory
provision of R.A. 8249. R.A 8249, while still a bill, was acted, deliberated, considered by 23
other Senators and by about 250 Representatives, and was separately approved by the
Senate and House of Representatives and, finally, by the President of the Philippines.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive
original jurisdiction of the SB, the ff concur:
1. the offense committed is a violation of
a. R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act),
b. R.A. 1379 (the law on ill-gotten wealth),
c. Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery)
d. Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases)
e. other offenses or felonies whether simple or complexed with other crimes;
2. the offender committing the offenses in items (a), (b), (c) and (e) is a public official or employee
holding any of the positions enumerated in paragraph a of Section 4; and 3. the offense committed
is in relation to the office.
(2) NO. Citing People vs. Montejo: An offense is said to have been committed in relation to the
office if it (the offense) is "intimately
connected"withtheofficeoftheoffenderandperpetratedwhilehewasintheperformanceofhisofficialfu
nctions. Thisintimate
relation between the offense charged and the discharge of official duties "must be alleged in the
informations.
While the above-quoted information states that the above-named principal accused
committed the crime of murder "in relation to their public office, there is, however, no
specific allegation of facts that the shooting of the victim by the said principal accused was
intimately related to the discharge of their official duties as police officers. Likewise, the
amended information does not indicate that
the said accused arrested and investigated the victim and then killed the latter while in their
custody.
For failure to show in the amended informations that the charge of murder was intimately
connected with the discharge of official
functions of the accused PNP officers, the offense charged in the subject criminal cases is
plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial
Court, not the Sandiganbayan.
4. Criminal Liability
H. Disabilities and Inhibitions
1. Under the Constitution
2. Under existing laws
IV. Termination of Official Relations
A. Expiration of Term
B. Retirement
C. Death or Permanent disability
D. Resignation
ORTIZ V. COMELEC | Fernan, 1988
FACTS
Mario Ortiz was appointed Commissioner of the COMELEC by Pres. Marcos for a term
expiring May 17, 1992 and took his oath of office. On 5 Mar 1986, he and the other
commissioners sent Pres. Aquino a letter: "Following the example of Honorable Justices of the
Supreme Court, on the premise that we have now a revolutionary government, we hereby
place our position at your disposal."
Thereafter, or on March 25, 1986, the Freedom Constitution was promulgated through
Proclamation No. 3, Article III thereof provides that All elective and appointive officials and
employees under the 1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment and qualification of
their successors,xxx.
The resignation of Ortiz was accepted by the Pres.
The COMELEC denied the application for retirement of Ortiz on the ground that he was not
entitled to retirement benenfits under R.A. 1568 am by R.A. 3595 and re-enacted by R.A.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 94 Ma. Jessa M. Alvarez
6118, to be entitled to retirement benefits in case of resignation, a member of the COMELEC
must have rendered not less than 20 years of service in the government.
The respondents posit the view that petitioner's "voluntary resignation" prevented the
completion of his term of office, and, therefore, having rendered only sixteen years of service
to the government, he is not entitled to retirement benefits.
ISSUE
WON a constitutional official whose "courtesy resignation" was accepted by the President of the
Philippines during the effectivity of the Freedom Constitution may be entitled to retirement
benefits under Republic Act No. 1568, as amended.
HELD
YES. Petitioner's separation from government service as a result of the reorganization ordained by
the then nascent Aquino government may not be considered a resignation within the
contemplation of the law. Resignation is defined as the act of giving up or the act of an officer by
which he declines his office and renounces the further right to use it. To constitute a complete and
operative act of resignation, the officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of relinquishment. Resignation implies an expression
of the incumbent in some form, express or implied, of the intention to surrender, renounce and
relinquish the office, and its acceptance by competent and lawful authority.
Ortiz resignation lacks the element of clear intention to surrender his position. We cannot
presume such intention from his statement in his letter of March 5, 1986 that he was placing
his position at the disposal of the President. He did not categorically state therein that he was
unconditionally giving up his position. It should be remembered that said letter was actually a
response to Proclamation No. 1 which President Aquino issued on February 25, 1986 when
she called on all appointive public officials to tender their "courtesy resignation" as a "first
step to restore confidence in public administration.
A courtesy resignation cannot properly be interpreted as resignation in the legal sense for it
is not necessarily a reflection of a public official's intention to surrender his position. Rather, it
manifests his submission to the will of the political authority and the appointing power. A
stringent interpretation of courtesy resignations must therefore be observed, particularly in
cases involving constitutional officials like the petitioner whose removal from office entails an
impeachment proceeding. For even if working for the government is regarded as no more
than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal
rights as those in reputation and eligibility for other employment.
The curtailment of his term not being attributable to any voluntary act on the part of the
petitioner, equity and justice demand that he should be deemed to have completed his term
albeit much ahead of the date stated in his appointment paper. Petitioner's case should be
placed in the same category as that of an official holding a primarily confidential position
whose tenure ends upon his superior's loss of confidence in him. His cessation from the
service entails no removal but an expiration of his term.
ESTRADA V. ARROYO | Puno, 2001
FACTS
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations
for the peaceful and orderly transfer of power started at Malaca angs Mabini Hall, Office of
the Executive Secretary. The negotiations consumed all morning until the news broke out that
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011
Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the
EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.
At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace. He issued the
following press statement:
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA
It also appears that on the same day, January 20, 2001, he signed the following letter:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged
the powers and duties of the Presidency. On the same day, this Court issued a Resolution in
Administrative Matter No. 01-1-05-SC confirming the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer the
oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at
noon of January 20, 2001. Recognition of respondent Arroyos government by foreign
governments swiftly followed.
Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49] In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The
survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in
the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased
to 52%. Her presidency is accepted by majorities in all social classes.
Petitioner, on February 6, filed a petition for Quo Warranto. He prayed for judgment
confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent
to have taken her oath as and to be holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution.
Petitioner denies he resigned as President or that he suffers from a permanent disability.
Hence, he submits that the office of the President was not vacant when respondent Arroyo
took her oath as president.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
It is urged that the petitioner did not resign but only took a temporary leave of absence due
to his inability to govern. In support of this thesis, the letter dated January 20, 2001 of the
petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
ISSUE
WON Erap resigned as a president or only took a temporary leave of absence due to his inability to
govern.
HELD/RATIO
YES. The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides: Sec. 8. In case of death, permanent disability, removal from office or
resignation of the President, the Vice President shall become the President to serve the unexpired
term. In case of death, permanent disability, removal from office, or resignation of both the
President and Vice President, the President of the Senate or, in case of his inability, the Speaker of
the House of Representatives, shall then acts as President until President or Vice President shall
have been elected and qualified.xxx
The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Republic. Resignation is not a high level legal abstraction. It is a factual question and its
elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment. The validity of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be written. It can be express. It can be implied.
As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts shows that petitioner did not write any formal letter of
resignation before he evacuated Malaca ang Palace in the Afternoon of January 20, 2001
after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned
has to be determined from his acts and omissions before, during and after January 20, 2001
or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue. Using this totality test, we hold that petitioner
resigned as President.
As to Eraps letter:
To say the least, the above letter is wrapped in mystery. The pleadings filed by the petitioner
in the cases at bar did not discuss, nay even intimate, the circumstances that led to its
preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances
during the oral argument. It strikes the Court as strange that the letter, despite its legal value,
was never referred to by the petitioner during the week-long crisis. To be sure, there was not
the slightest hint of its existence when he issued his final press release. It was all too easy for
him to tell the Filipino people in his press release that he was temporarily unable to govern
and that he was leaving the reins of government to respondent Arroyo for the time being.
Under any circumstance, however, the mysterious letter cannot negate the resignation of the
petitioner. If it was prepared before the press release of the petitioner clearly showing his
resignation from the presidency, then the resignation must prevail as a later act. If, however,
it was prepared after the press release, still, it commands scant legal significance. Petitioners
resignation from the presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his repudiation by the people.
Resignation of a public officer with pending investigation or prosecution against him.
After petitioner contended that as a matter of fact he did not resign, he also argues that he
could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation,
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October 6, 2011 95
viz: Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery.
The intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent his prosecution
undertheAnti-GraftLaworprosecutionforbriberyundertheRevisedPenalCode.
Tobesure,nopersoncanbecompelledtorender service for that would be a violation of his
constitutional right. A public official has the right not to serve if he really wants to retire or
resign. Nevertheless, if at the time he resigns or retires, a public official is facing
administrative or criminal investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings against him. He cannot use
his resignation or retirement to avoid prosecution.
There is another reason why petitioners contention should be rejected. In the cases at bar,
the records show that when petitioner resigned on January 20, 2001, the cases filed against
him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00- 1756, 0-00-
1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman
refrained from conducting the preliminary investigation of the petitioner for the reason that
as the sitting President then, petitioner was immune from
suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the
petitioner for it contemplates of cases whose investigation or prosecution do not suffer from
any insuperable legal obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that,
under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of
an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors walked out, the
public prosecutors filed their Manifestation of Withdrawal of Appearance, and the
proceedings were postponed indefinitely. There was, in effect, no impeachment case pending
against petitioner when he resigned.
Temporarily unavailable?
- What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly
rejected petitioners claim of inability. In fine, even if the petitioner can prove that he did not
resign, still, he cannot successfully claim that he is a President on leave on the ground that he
is merely unable to govern temporarily. That claim has been laid to rest by Congress
and the decision that respondent Arroyo is the de jure President made by a co-equal branch
of government cannot be reviewed by this Court.
WON Erap enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity
The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either, that a person injured by the executive authority by an act unjustifiable under
the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the
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 96 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

Governor-General, like the judges of the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the matter is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has been
deprived his liberty or his property by such act. This remedy is assured to every person,
however humble or of whatever country, when his personal or property rights have been
invaded, even by the highest authority of the state. The thing which the judiciary can not do is
mulct the Governor-General personally in damages which result from the performance of his
official duty, any more that it can a member of the Philippine Commission or the Philippine
Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercise discretion in determining whether or not he
had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgment, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, he is entitled to protection in
determining the question of his authority. If he decide wrongly, he is still protected provided
the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he is not protected if the lack of authority to act is so plain
that two such men could not honestly differ over its determination. In such case, he acts, not
as Governor-General but as a private individual, and, as such, must answer for the
consequences of his act.

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Ma. Jessa M. Alvarez 2003-29275
CANONIZADO V. AGUIRRE | Gonzaga-Reyes, 2001
FACTS
Alexis Canonizado was one of the Commissioners of the NAPOLCOM.
Section 8 of R.A. 8551 which amended R.A. 6975 (PNP Law) provides: Upon the effectivity to
this Act, the terms of office of the current Commissioners are deemed expired which shall
constitute a bar to their reappointment or an extension of their terms in the Commission
except for current Commissioners who have served less than 2 years of their terms of office
who may be appointed by the President for a maximum term of 2 years.
Canonizado was compelled to leave his position as Commissioner by reason of Sec. 8 and to
accept his appointment to the position of Inspector General of the Internal Affairs Service
(IAS) of the PNP.
Sec. 8 was declared to be violative of the petitioners constitutional right to security of tenure.
The SC ordered reinstatement and full backwages.
Respondents contend that Canonizado must be deemed to have abandoned his claim for
reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and
Inspector General of IAS of the PNP are incompatible.
ISSUE
WON Canonizados appointment to and acceptation of the position of Inspector General should
result in an abandonment of his claim for reinstatement to the NAPOLCOM.
HELD/RATIO
NO. Abandonment of an office is the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof. In order to constitute abandonment of
office, it must be total and under such circumstances as clearly to indicate an absolute
relinquishment. There must be a complete abandonment of duties of such continuance that the
law will infer a relinquishment. Abandonment of duties is a voluntary act; it springs from and is
accompanied by deliberation and freedom of choice. There are, therefore, two essential elements
of abandonment: first, an intention to abandon and second, an overt or external act by which the
intention is carried into effect.
Generally speaking, a person holding a public office may abandon such office by nonuser or
acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office.
However, nonperformance of the duties of an office does not constitute abandonment where
such nonperformance results from temporary disability or from involuntary failure to
perform. Abandonment may also result from an acquiescence by the officer in his wrongful
removal or discharge, for instance, after a summary removal, an unreasonable delay by an
officer illegally removed in taking steps to vindicate his rights may constitute an abandonment
of the office. Where, while desiring and intending to hold the office, and with no willful desire
or intention to abandon it, the public officer vacates it in deference to the requirements of a
statute which is afterwards declared unconstitutional, such a surrender will not be deemed an
abandonment and the officer may recover the office.
He who, while occupying one office, accepts another incompatible with the first, ipso facto
vacates the first office and his title is thereby terminated without any other act or proceeding.
Public policy considerations dictate against allowing the same individual to
perform inconsistent and incompatible duties. The incompatibility contemplated is not the
mere physical impossibility of one persons performing the duties of the two offices due to a
lack of time or the inability to be in two places at the same moment, but that which proceeds
from the nature and relations of the two positions to each other as to give rise to contrariety
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and antagonism should one person attempt to faithfully and impartially discharge the duties
of one toward the incumbent of the other.
There is no question that the positions of NAPOLCOM Commissioner and Inspector
General of the IAS are incompatible with each other. As pointed out by respondents, RA
8551 prohibits any personnel of the IAS from sitting in a committee charged with the
task of deliberating on the appointment, promotion, or assignment of any PNP
personnel, whereas the NAPOLCOM has the power of control and supervision over the
PNP. However, the rule on incompatibility of duties will not apply to the case at bar
because at no point did Canonizado discharge the functions of the two offices
simultaneously. Canonizado was forced out of his first office by the enactment ofSec. 8
RA 8551. Thus, when Canonizado was appointed as Inspector General, he had ceased to
discharge his official functions as NAPOLCOM Commissioner. As a matter of fact, it was
on this same date that Magahum and Factoran were appointed as NAPOLCOM
Commissioners by then President Estrada, to join Cairme and Adiong - who were earlier
appointed and given a term extension, respectively, by then President Ramos thereby
completing the appointments of the four regular members of the NAPOLCOM,
pursuant to section 4 of the amendatory law. Thus, to reiterate, the incompatibility of
duties rule never had a chance to come into play for petitioner never occupied the two
positions, of Commissioner and Inspector General, nor discharged their respective
functions, concurrently.
AQUINO v CSC | Medialdea, 1992
FACTS
Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo
City, was designated on July 20, 1984 as Officer-in-Charge of the Division Supply Office by the
DECS Regional Director Saturnino R. Magturo in view of the retirement of the Supply Officer I,
Mr. Jose I. Aviquivil.
February 16, 1984 to June 18, 1984, petitioner Victor A. Aquino was designated as Property
Inspector and In-Charge of the Supply Office performing the duties and responsibilities of the
Supply Officer I
2 years thereafter, or on September 19, 1986, the Division Superintendent of City Schools of
San Pablo City, Milagros Tagle, issued a promotional appointment to private respondent
Leonarda D. de la Paz as Supply Officer I in the DECS Division of San Pablo City. She assumed
and performed the duties and functions of the position and received the compensation and
benefits therefor.
At the time of her appointment, de la Paz was then holding the position of Clerk II, Division of
City Schools of San Pablo City. From August 25, 1976 to September 1983, she was designated
as Assistant to the Supply Officer. The Civil Service Regional Officer IV approved her
appointment as permanent "provided that there is no pending administrative case against the
appointee, no pending protest against the appointment, nor any decision by competent
authority that will adversely affect the approval of the appointment."
1 month after, or on October 20, 1986 Aquino filed a protest with the DECS Secretary
questioning the qualification and competence of de la Paz for the position of Supply Officer I.
DECS Secretary Lourdes R. Quisumbing sustained the protest of Aquino and revoked the
appointment of de la Paz as Supply Officer I.
De la Paz filed her petition for reconsideration of the DECS decision but the same was denied
by Secretary Quisumbing
PROF. GISELLA N. DIZON-REYES
 98 Ma. Jessa M. Alvarez
Aquino was then issued a permanent appointment dated August 11, 1987 as Supply Officer I
by the DECS Regional Director Pedro San Vicente. He assumed the duties and functions of the
position. The said appointment was approved by the Civil Service Regional Office IV.
De la Paz filed on October 16, 1987 a notice of appeal with motion to maintain status quo to
the Merit Systems Protection Board (MSPB) which rendered a decision upholding the
appointment of Aquino as Supply Officer I. From the decision of the MSPB, de la Paz appealed
to public respondent Civil Service Commission (CSC). The CSC found the appeal of de la Paz
meritorious, thus revoking the appointment of Aquino and restoring de la Paz to her position
as Supply Officer I, DECS, Division of San Pablo City under her previously approved
appointment. From said decision, petitioner filed a motion for reconsideration with prayer for
issuance of a temporary restraining order. CSC denied said motion.
ISSUE
WON CSC has the authority to revoke Aquinos appointment in favor of dela Paz.
HELD/RATIO
YES, the case does not have similar factual circumstances as the Luego case (CSCs encroachment
on appointing authoritys choice) Luego doctrine does not apply where the CSC revoked the
appointment of the successful protestant, Aquino, principally because the right to security of
tenure of the prior appointee, Dela Paz, to the contested position had already attached. It must be
noted that CSC did not direct the appointment of a substitute of its choice. It merely restored the
appointment of Dela Paz who was first appointed to the contested position.
When the appointing power has once acted and the appointee has accepted the office and
done what is required of him upon its acceptance, his title to the office becomes complete,
and he can then be removed only in the regular way. The appointing power cannot effect his
removal indirectly by rescinding or revoking his appointment after it is complete.
Appointment cannot be revoked by the appointing authority on the ground merely that the
protestant is more qualified than the first appointee, subject however to the condition that
the first appointee should possess the minimum qualifications required by law. Otherwise,
the security of tenure guaranteed by Article IX-B, Section 2 par. (3) of the 1987 Constitution
would be rendered meaningless if the appointing authority is allowed to flip-flop in exercising
its discretionary power of appointment
Even on the assumption that the revocation of Dela Paz's appointment was validly exercised
by DECS Secretary Quisumbing, still the appointment extended to Aquino was tainted with
irregularity as it was issued before the finality of the decision on the protest in violation of
CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant
(Aquino) if the protest case is not yet finally resolved, since there is no vacancy in the position
pending resolution of the protest case. There can be no appointment to a non-vacant
position. The incumbent must first be legally removed OR his appointment validly terminated
(Costin v. Quimbo). An appointment to an office which is not vacant is null and void ab initio
(Morata v. Court of Appeals).
CSC Resolution No. 83-343: An appointment though contested shall take effect immediately
upon issuance if the appointee assumes the duties of the position and (the) appointee is
entitled to receive the salary attached to the position. Likewise such appointment shall
become ineffective in case the protest is finally resolved in favor of the protestant, in which
case the protestee shall be reverted to his former position.
While it is true that the appointing authority has a wide latitude of discretion in making his
choice in the selection and appointment of qualified persons to vacant positions in the civil
service, we cannot, however, give a stamp of approval to such a procedural irregularity in
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2003-29275 October 6, 2011
extending appointments, as in the instant case, to the prejudice of the right to security of
tenure of the incumbent to the position.
Once 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, 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.
FABELLA v. CA | Panganiban, 1997
FACTS
On September 17, 1990, then DECS Secretary Cario issued a return-to-work order to all
public school teachers who had participated in walk-outs and strikes on various dates. The
mass action had been staged to demand payment of 13th month differentials, clothing
allowances and passage of a debt-cap bill in Congress, among other things.
Secretary Cario filed administrative cases against herein petitioner-appellees, who are
teachers of the Mandaluyong High School. At the same time, Secretary Cario ordered
petitioner-appellee to be placed under preventive suspension.
Administrative hearings started. Petitioner-appellees' counsel objected to the procedure
adopted by the committee and demanded that he be furnished a copy of the guidelines
adopted by the committee for the investigation and imposition of penalties. As he received no
response from the committee, counsel walked out. Later, however, counsel, was able to
obtain a copy of the guidelines.
The teachers filed a an injunctive suit with the Regional Trial Court in Quezon City, charging
the committee appointed by Secretary Cario with fraud and deceit and praying that it be
stopped from further investigating them and from rendering any decision in the
administrative case. However, the trial court denied them a restraining order.
They then amended their complaint and made it one for certiorari and mandamus. They
alleged that the investigating committee was acting with grave abuse of discretion because its
guidelines for investigation place the burden of proof on them by requiring them to prove
their innocence instead of requiring Secretary Cario and his staff to adduce evidence to
prove the charges against the teachers.
Meanwhile, the DECS investigating committee rendered a decision on August 6, 1991, finding
the petitioner-appellees guilty, as charged and ordering their immediate dismissal.
The trial court dismissed the petition for certiorari and mandamus for lack of merit.
Petitioner-appellees moved for a reconsideration, but their motion was denied.
The teachers then filed a petition for certiorari with the Supreme Court which declared void
the trial court's order of dismissal and reinstating petitioner-appellees' action, even as it
ordered the latter's reinstatement pending decision of their case.
The trial court set the case for hearing.
The hearing of the case was thereafter conducted ex parte with only the teachers allowed to
present their evidence.
the trial court rendered a decision declaring that the dismissal of the teachers is not justified,
it being arbitrary and violative of the teacher's right to due process. Due process must be
observed in dismissing the teachers because it affects not only their position but also their
means of livelihood.
Former DECS Secretary Isidro Cario filed an appeal with the Court of Appeals. Court of
Appeals affirmed the RTC decision, holding in the main that private respondents were denied
due process in the administrative proceedings instituted against them.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
ISSUE
WON teachers were denied due process of law.
HELD/ RATIO
YES. The issue is not whether the private respondents engaged in any prohibited activity which may
warrant the imposition of disciplinary sanctions against them as a result of administrative
proceedings. As already observed, the resolution of this case revolves around the question of due
process of law, not on the right of government workers to strike. The issue is not whether private
respondents may be punished for engaging in a prohibited action but whether, in the course of the
investigation of the alleged proscribed activity, their right to due process has been violated. In
short, before they can be investigated and meted out any penalty, due process must first be
observed.
In administrative proceedings, due process has been recognized to include the following:
(1) the right to actual or constructive notice of the institution of proceedings which may
affect a respondents legal rights;
(2) a real opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in ones favor, and to defend ones rights;
(3) a tribunal vested with competent jurisdiction and so constituted as to afford a person
charged administratively a reasonable guarantee of honesty as well as impartiality; and
(4) a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the parties
affected.
The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School
Teachers, which specifically covers administrative proceedings involving public school
teachers. Section 9 of said law expressly provides that the committee to hear public
schoolteachers administrative cases should be composed of the school superintendent of the
division as chairman, a representative of the local or any existing provincial or national
teachers organization and a supervisor of the division.
Sec. 9. Administrative Charges. Administrative charges against a teacher shall be heard
initially by a committee composed of the
corresponding School Superintendent of the Division or a duly authorized representative who
would at least have the rank of a division
supervisor, where the teacher belongs, as chairman, a representative of the local or, in its
absence, any existing provincial or national
teachers organization and a supervisor of the Division, the last two to be designated by the
Director of Public Schools. The
committee shall submit its findings, and recommendations to the Director of Public Schools
within thirty days from the termination of
the hearings: Provided, however, That where the school superintendent is the complainant or
an interested party, all the members of the committee shall be appointed by the Secretary of
Education.
The foregoing provisions implement the Declaration of Policy of the statute; that is, to
promote the terms of employment and career prospects of schoolteachers.
In the present case, the various committees formed by DECS to hear the administrative
charges against private respondents did not include a representative of the local or, in its
absence, any existing provincial or national teachers organization as required by
Section 9 of RA 4670. Accordingly, these committees were deemed to have no competent
jurisdiction. Thus, all proceedings undertaken by them were necessarily void. They could not
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provide any basis for the suspension or dismissal of private respondents. The inclusion of a
representative of a teachers organization in these committees was indispensable to ensure
an impartial tribunal. It was this requirement that would have given substance and meaning
to the right to be heard. Indeed, in any proceeding, the essence of procedural due process is
embodied in the basic requirement of notice and a real opportunity to be heard. Petitioners
say: DECS complied with Section 9 of RA 4670, because all the teachers who were members
of the various committees are members of either the Quezon City Secondary Teachers
Federation or the Quezon City Elementary Teachers Federation and are deemed to be the
representatives of a teachers organization as required by Section 9 of RA 4670.
SC says: Mere membership of said teachers in their respective teachers organizations does
not ipso facto make them authorized representatives of such organizations as contemplated
by Section 9 of RA 4670. Under this section, the teachers organization possesses the right to
indicate its choice of representative to be included by the DECS in the investigating
committee. Such right to designate cannot be usurped by the secretary of education or the
director of public schools or their underlings. In the instant case, there is no dispute that
none of the teachers appointed by the DECS as members of its investigating committee was
ever designated or authorized by a teachers organization as its representative in said
committee.
The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose
a standard and a separate set of procedural requirements in connection with administrative
proceedings involving public school teachers. Clearly, private respondents right to due
process of law requires compliance with these requirements laid down by RA 4670.
AGUINALDO V. SANTOS | Nocon, 1992
FACTS
Rodolfo Aguinaldo was the duly elected Governor of the province of Cagayan, having been
elected to said position during the local elections held on January 17, 1988.
Shortly after the December 1989 coup d'etat was crushed, respondent Secretary of Local
Government, Luis Santos sent a telegram and a letter to petitioner requiring him to show
cause why he should not be suspended or removed from office for disloyalty to the Republic.
A complaint for disloyalty to the Republic and culpable violation of the Constitution was filed
by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the
municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the
latter committed during the coup.
DLG Secretary Santos suspended petitioner from office for sixty (60) days from notice,
pending the outcome of the formal investigation into the charges against him.
During the hearing, Aguinaldo neither presented evidence nor even cross-examined the
complainants' witnesses, choosing instead to move that respondent Secretary inhibit himself
from deciding the case, which motion was denied.
Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty
as charged and ordering his removal from office. Installed as Governor of Cagayan in the
process was respondent Melvin Vargas, who was then the Vice-Governor of Cagayan.
While this case was pending before this Court, petitioner filed his certificate of candidacy for
the position of Governor of Cagayan for the May 11, 1992 elections. Three separate petitions
for his disqualification were then filed against him, all based on the ground that he had been
removed from office by virtue of the March 19, 1990 resolution of respondent Secretary. The
Commission on Elections granted the petitions on May 9, 1992.
PROF. GISELLA N. DIZON-REYES
 100 Ma. Jessa M. Alvarez
The Commission ruled that inasmuch as the resolutions of the Commission become final and
executory only after five (5) days from promulgation, petitioner may still be voted upon as a
candidate for governor pending the final outcome of the disqualification cases with this Court.
Aguinaldo filed a petition for certiorari seeking to nullify the resolution of the Commission
ordering his disqualification. On June 9, 1992, a resolution was issued granting the petition
and annulling the May 9, 1992 resolution of the Commission on the ground that the decision
of respondent Secretary has not yet attained finality and is still pending review with this
Court.
Aguinaldo won by a landslide margin in the elections.
ISSUE
WON Aguinaldo should be disqualified by virtue of Secretary Santos decision removing him from
office during his previous term.
HELD/RATIO
NO. The rule is that a public official cannot be removed for administrative misconduct committed
during a prior term, since his re-election to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing
rule, however, finds no application to criminal cases pending against petitioner for acts he may
have committed during the failed coup. Petitioner says: The power of Secretary to suspend or
remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337
has been repealed by the 1987 Constitution and which is now vested in the courts.
The power of respondent Secretary to remove local government officials is anchored on both
the Constitution and a statutory grant from the legislative branch. The constitutional basis is
provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the
power of control over all executive departments, bureaus and offices and the power of
general supervision over local governments, and by the doctrine that the acts of the
department head are presumptively the acts of the President unless expressly rejected by
him.
Equally without merit is petitioner's claim that before he could be suspended or removed
from office, proof beyond reasonable doubt is required inasmuch as he is charged with a
penal offense of disloyalty to the Republic which is defined and penalized under Article 137
of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions
of the Revised Penal Code, but administratively with the end in view of removing petitioner as
the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the
quantum of proof required is only substantial evidence.
Citing Bagabuyo et al. vs. Davide: That B.P. Blg. 337 remained in force despite the effectivity
of the present Constitution, until such time as the proposed Local Government Code of 1991
is approved.
SALALIMA V. GUINGONA JR. | Davide, Jr., 1996
FACTS
Sometime in 1993, several administrative complaints against the petitioners, who were
elective officials of the Province of Albay, were filed with the Office of the President.
President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate
the charges and to thereafter submit its findings and recommendations.
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After conducting hearings, the Ad Hoc Committee submitted its report to the Office of the
President. The President promulgated Administrative Order No. 153 approving the findings
and recommendations of the Committee.
Petitioners contend that the challenged administrative order deprived them of their
respective offices without procedural and substantive due process. Their suspensions ranging
from twelve months to twenty months or for the entire duration of their unexpired term,
which was then only seven months, constituted permanent disenfranchisement or removal
from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective
local official may be removed from office by order of the court.
Issue: WON the conduct of the proceedings in the administrative cases filed and the series of
suspension orders imposed by the respondent-members of the Sangguniang Panlalawigan on
Mayor Corral constitute oppression and abuse of authority?
ISSUE
WON the conduct of the proceedings in the administrative cases filed and the series of suspension
orders imposed by the respondent-members of the Sangguniang Panlalawigan on Mayor Corral
constitute oppression and abuse of authority.
HELD/RATIO
YES. A review of the proceedings reveal that the same were marked by haste and arbitrariness. This
was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-
92) even before she could file her answer. In the other cases, respondent-members of Sangguniang
Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense.
Consequently, respondents did not also fully evaluate the evidences presented to support the
charges made. As such, all the decisions of respondents suspending Mayor Corral were
ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the
Ombudsman, which were based on the same incidents complained of in the said
administrative cases, were subsequently dismissed.
This provision sets the limits to the penalty of suspension, viz., it should not exceed six
months or the unexpired portion of the term of office of the respondent for every
administrative offense. An administrative offense means every act or conduct or omission
which amounts to, or constitutes, any of the grounds for disciplinary action. The offenses for
which suspension may be imposed are enumerated in Section 60 of the Code.
An elective local official may be removed from office on the grounds enumerated above by
order of the proper court. Re: Legality of disciplining an elective municipal official for a
wrongful act committed by him during his immediately preceding term of office.
The Court should never remove a public officer for acts done prior to his present term of
office. To do otherwise would be to deprive the people of their right to elect their officers.
When the people have elected a man to office, it must be assumed that they did this with
knowledge of his life and character, and that they disregard or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or
misconduct to practically overrule the will of the people.
The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is
still a good law. Such a rule is not only founded on the theory that an officials reelection
expresses the sovereign will of the electorate to forgive or condone any act or omission
constituting a ground for administrative discipline which was committed during his previous
term. We may add that sound public policy dictates it. To rule otherwise would open the
floodgates to exacerbating endless partisan contests between the reelected official and his
political enemies, who may not stop to hound the former during his new term with
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Ma. Jessa M. Alvarez 2003-29275
administrative cases for acts, allegedto have been committed during his previous term. His
second term may thus be devoted to defending himself in the said cases to the detriment of
public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal
acts which the reelected official may have committed during his previous term.
GLORIA V. CA | Mendoza, 1999
FACTS
Private respondents are public school teachers. On various dates in September and October
1990, during the teachers strikes, they did not report for work. For this reason, they were
administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross
violation of Civil Service Law Rules and Regulations and reasonable office regulations, (4)
refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best
interest of the service, and (7) absence without leave (AWOL), and placed under preventive
suspension.
The investigation was concluded before the lapse of their 90-day suspension and private
respondents were found guilty as charged. Respondent Nicanor Margallo was ordered
dismissed from the service, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth
Somebang were ordered suspended for six months.
Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which
found him guilty of conduct prejudicial to the best interest of the service and imposed on him
a six-month suspension. The other respondents also appealed to the MSPB, but their appeal
was dismissed.
On appeal, the CSC affirmed the decision of the MSPB with respect to Margallo, but found the
other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules
and regulations by failing to file applications for leave of absence and, therefore, reduced the
penalty imposed on them to reprimand and ordered them reinstated to their former
positions.
Respondents filed a petition for certiorari. The Court of Appeals rendered a decision (1)
affirming the decision of the CSC with respect to Amparo Abad, Virgilia Bandigas, and
Elizabeth Somebang but (2) reversing it insofar as the CSC ordered the suspension of Nicanor
Margallo. The appellate court found him guilty of violation of reasonable office rules and
regulations only and imposed on him the penalty of reprimand.
Private respondents moved for a reconsideration, contending that they should be exonerated
of all charges against them and that they be paid salaries during their suspension. The Court
of Appeals, while maintaining its finding that private respondents were guilty of violation of
reasonable office rules and regulations for which they should be reprimanded, ruled that
private respondents were entitled to the payment of salaries during their suspension beyond
ninety (90) days.
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a
reconsideration insofar as the resolution of the Court of Appeals ordered the payment of
private respondents salaries during the period of their appeal. His motion was, however,
denied by the appellate court. Hence, this petition for review on certiorari.
ISSUE
WON teachers who were either dismissed or suspended because they did not report for work but
who were eventually ordered reinstated because they had not been shown to have taken part in
the strike, although reprimanded for being absent without leave have the right to back salaries .
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HELD/RATIO
YES. There are thus two kinds of preventive suspension of civil service employees who are charged
with offenses punishable by removal or suspension: (1) preventive suspension pending
investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the respondent is exonerated
(47(4)).
Preventive suspension pending investigation is not a penalty. It is a measure intended to
enable the disciplining authority to investigate charges against respondent by preventing the
latter from intimidating or in any way influencing witnesses against him. If the investigation is
not finished and a decision is not rendered within that period, the suspension will be lifted
and the respondent will automatically be reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he should be reinstated.
Is he entitled to the payment of salaries during the period of suspension? As already stated,
the CA ordered the DECS to pay private respondents their salaries, allowances, and other
benefits beyond the ninety (90) day preventive suspension. In other words, no
compensation was due for the period of the preventive suspension pending investigation but
only for the period of preventive suspension pending appeal in the event the employee is
exonerated.
Preventive suspension of civil service employees charged with dishonesty, oppression or
grave misconduct or neglect of duty is authorized by the Civil Service Law. It cannot be
considered unjustified even if later the charges are dismissed so as to justify the payment of
salaries to the employee concerned. It is limited to 90 days unless the delay in the conclusion
of the investigation is due to the employee concerned. After that period, even if the
investigation is not finished, the employee shall be automatically reinstated. However,
although employees who are preventively suspended pending investigation are not entitled
to the payment of their salaries even if they are exonerated, the Court did not agree with the
petitioner that they are not entitled to compensation for the period of their suspension
pending appeal if eventually they are found innocent. Because respondent is penalized
before his sentence is confirmed that he should be paid his salaries in the event he is
exonerated. It would be unjust to deprive him of his pay as a result of the immediate
execution of the decision against him and continue to do so even after it is shown that he is
innocent of the charges for which he was suspended. To sustain the governments theory
would be to make the administrative decision not only executory but final and executory.
Consequently, the Supreme Court affirmed the decision of the Court of Appeals with
modification as to the computation of the salaries awarded to private respondents.
SECRETARY OF EDUCATION V CA | Purisima, 2000
FACTS
Petitioners are public school teachers from various schools in the National Capital Region who
incurred unauthorized absences in connection with or in furtherance of their then on-going
"mass action" held sometime in September 1990. Confronted with the strike which
threatened to disrupt classes in public schools, former Secretary Isidro Cario of the
Department of Education Culture and Sports (DECS) issued a Memorandum ordering them to
return to work under pain of dismissal. But the said Memorandum was ignored by petitioners,
prompting the DECS Secretary to lodge administrative complaints against them for grave
misconduct, gross neglect of duty, violation of the Civil Service law and rules and reasonable
office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial
to the public interest, and absence without leave.
PROF. GISELLA N. DIZON-REYES
 102 Ma. Jessa M. Alvarez
Subsequently, DECS Secretary Isidro Cario rendered separate judgments finding petitioners
guilty, as charged, and dismissing them from the service "effective immediately". Such
decisions were affirmed by the Merit and System Protection Board (MSPB).
On appeal to it, the Civil Service Commission found petitioners guilty of "conduct prejudicial
to the best interest of the service" but it imposed only six (6) months' suspension without pay.
In the case of petitioner Erlinda Abenis, considering the length of time that she has been out
of service, she is now automatically reinstated in the service without payment of back
salaries.
Petitioners brought a petition for certiorari. The Court of Appeals affirmed the CSC with the
MODIFICATION that petitioners shall be entitled to back salaries for the period they were not
allowed to teach, except for the six (6) months during which they were suspended for cause.
DECS Secretary Isidro Cario, the Civil Service Commission and the public school teachers
involved filed separate petitions with this Court questioning the decision of the Court of
Appeals.
ISSUE
WON the conduct of the proceedings in the administrative cases filed and the series of suspension
orders imposed by the respondent-members of the Sangguniang Panlalawigan on Mayor Corral
constitute oppression and abuse of authority.
HELD/RATIO
NO. Citing Alipat vs. Court of Appeals: The mass actions of September/October 1990 participated in
by the public school teachers of Metro Manila constituted a strike in every sense of the term. Re:
Whether back wages may be awarded to subject public school teachers who were ordered
reinstated in the service after the orders of dismissal issued by the DECS Secretary were commuted
by the Civil Service Commission to suspension of 6 months without pay.
When the teachers have given cause for their suspension - i.e., the unjustified abandonment
of classes to the prejudice of their students-they were not fully innocent of the charges
against them although they were eventually found guilty only of conduct prejudicial to the
best interest of the service and not grave misconduct or other offenses warranting their
dismissal from service; being found liable for a lesser offense in not equivalent to
exoneration.
It is beyond cavil that the public school teachers before the Court participated in the
September 1990 mass actions and refused to obey the return to work order of the DECS
Secretary. It is equally undisputed that they were not completely exculpated of the charges
against them, as they were adjudged guilty of committing acts prejudicial to the best interest
of the service. Consequently, with the ground for their suspension duly stated, the denial of
their prayer for exoneration and payment of back wages is in order.
HAGAD V GOZO-DADOLE | Vitug , 1995
FACTS
Criminal and administrative complaints were filed against herein respondents Mayor Alfredo
Ouano, Vice-Mayor Paterno Caete and Sangguniang Panlungsod Member Rafael Mayol, all
public officials of Mandaue City, by Mandaue City Councilors Magno B. Dionson and Gaudiosa
O. Bercede with the Office of the Deputy Ombudsman for the Visayas. The respondents were
charged with having violated R.A No. 3019, as amended; Articles 170 and 171 of the Revised
Penal Code; and R.A. No. 6713. Councilors Dionson and Bercede averred that respondent
officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance No.
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2003-29275 October 6, 2011
018/92 by increasing the allocated appropriation therein from P3,494,364.57 to
P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The
complaints were separately docketed as Criminal Case and as Administrative Case.
Respondent officials prayed for the dismissal of the complaint on the ground that the
Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative
case filed against them since, under Section 63 of the Local Government Code of 1991, the
power to investigate and impose administrative sanctions against said local officials, as well as
to effect their preventive suspension, had now been vested with the Office of the President.
Office of the Deputy Ombudsman denied the motion to dismiss and recommended the
preventive suspension of respondent officials, except City Budget Officer Pedro M. Guido,
until the administrative case would have been finally resolved by the Ombudsman.
Respondent officials were formally placed under preventive suspension by the Deputy
Ombudsman.
A petition for prohibition, with prayer for a writ of preliminary injunction and temporary
restraining order, was filed by respondent officials with the Regional Trial Court. Respondent
Judge issued a restraining order directed at petitioner, enjoining him ". . . from enforcing
and/or implementing the questioned order of preventive suspension.
ISSUE
WON Ombudsman under RA 6770 (Ombudsman Law) has been divested of his authority to conduct
administrative investigations over local elective officials by virtue of the subsequent enactment of
RA 7160 (Local Government Code of 1991).
HELD/RATIO
NO. Constitutional mandate of Ombudsman: Section 13 (1,) Article XI, of the 1987 Constitution -
The Office of the Ombudsman shall have the following powers, functions, and duties: (1)
Investigate on its own, or on complaint by any person, any act or omission of any publicofficial,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient;
Statutory mandate of Ombudsman: Section 19 of RA 6770. Administrative complaints. The
Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: 1.
Are contrary to law or regulation; 2. Are unreasonable, unfair, oppressive or discriminatory; 3.
Are inconsistent with the general course of an agency's functions, though in accordance with
law; 4. Proceed from a mistake of law or an arbitrary ascertainment of facts; 5. Are in the
exercise of discretionary powers but for an improper purpose; or 6. Are otherwise irregular,
immoral or devoid of justification.
THE SANGGUNIANG BAYAN OF BGY. DON MARIANO V MARTINEZ | CHICO-NAZARIO , 2008
FACTS
Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos,
Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such
under pertinent laws of the Republic of the Philippines. Respondent Martinez is the
incumbent Punong Barangay of the said local government unit.
Martinez was administratively charged with Dishonesty and Graft and Corruption by
petitioner through the filing of a verified complaint before the Sangguniang Bayan as the
disciplining authority over elective barangay officials pursuant to Section 61of the Local
Government Code.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 103

Pending the administrative proceedings, Martinez was placed under preventive suspension
for 60 days.
Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of
removal from office.
The decision of the SB was conveyed to the Municipal Mayor of Bayombong, Nueva Ecija,
Severino Bagasao, for its implementation. Municial Mayor Bagasao issued a Memorandum,
wherein he stated that the Sanggunaing Bayan is not empowered to order Martinezs removal
from service.
Martinez filed a Special Civil Action for Certiorari before the trial court against petitioner, the
Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision of the
Sangguniang Bayan.
The trial court issued an Order declaring the Decision of the Sangguniang Bayan and the
Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the
petitioner, are empowered to remove an elective local official from office, in accordance with
Section 60 of the Local Government Code.
Petitioner filed a Motion for Reconsideration which the trial court denied.

ISSUE
WON Sangguniang Bayan may remove an elective local official from office .

HELD/RATIO
NO. SMartinezs term as Punong Baranggay expired upon the holding of the 29 October 2007
Synchronized Barangay and Sangguniang Kabataan elections, thus, rendering this petition moot and
academic, the Court will nevertheless settle a legal question that is capable of repetition yet
evading review.
Section 60 of the LGC conferred upon the courts the power to remove elective local officials
An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds: xxx An elective local
official may be removed from office on the grounds enumerated above by order of the proper
court.
During the deliberations of the Senate on the LGC, the legislative intent to confine to the
courts, i.e., regional trial courts, the Sandiganbayan and the appellate courts, jurisdiction over
cases involving the removal of elective local officials was evident. Senator Saguisag. For as
long as that is open for some later disposition, may I just add the following thought: It seems
to me that instead of identifying only the proper regional trial court or the Sandiganbayan,
and since we know that in the case of a regional trial court, particularly, a case may be
appealed or may be the subject of an injunction, in the framing of this later on, I would like to
suggest that we consider replacing the phrase PROPER REGIONAL TRIAL COURT OR THE
SANDIGANBAYAN simply by COURTS Kasi po, maaaring sabihin nila na mali iyong regional
trial court o ang Sandiganbayan.
Citing Salalima v. Guingona, Jr.: the Court en banc categorically ruled that the Office of the
President is without any power to remove elected officials, since the power is exclusively
vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the
LGC. It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the
Local Government Code of 1991, which provided that: An elective local official may be
removed from office on the grounds enumerated in paragraph (a) of this Article by order of
the proper court or the disciplining authority whichever first acquires jurisdiction to the
exclusion of the other.

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 104 Ma. Jessa M. Alvarez
I. Impeachment
FRANCISCO V. HOUSE OF REPRESENTATIVES | Carpio-Morales, 2003
FACTS
According to Art. 11, Sec. 8 of the Constitution Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this Section.
November 2001 - 12th Congress of the House of Representatives adopted and approved the
Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) superseding the
Rules approved by 11th Congress
Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the
House files a verified complaint of impeachment or a citizen files a verified complaint that is
endorsed by a Member of the House through a resolution of endorsement against an
impeachable officer, impeachment proceedings against such official are deemed initiated on
the day the Committee on Justice finds that the verified complaint and/or resolution against
such official, as the case may be, is sufficient in substance, or on the date the House votes to
overturn or affirm the finding of the said Committee that the verified complaint and/or
resolution, as the case may be, is not sufficient in substance. In cases where a verified
complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least
one-third (1/3) of the Members of the House, impeachment proceedings are deemed
initiated at the time of the filing of such verified complaint or resolution of impeachment with
the Secretary General.
Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1)
year from the date impeachment proceedings are deemed initiated as provided in Section 16
hereof, no impeachment proceedings, as such, can be initiated against the same official.
July 2002 House of representatives adopted a Resolution directing Committee on Justice to
conduct an investigation in aid of legislation on the manner of disbursements and
expenditures by the Chief Justice of the Judiciary Development Fund
June 2003 Pres. Estrada filed the first impeachment complaint against Davide and 7
associate justices for culpable violation of the Constitution, betrayal of public trust, and other
high crimes; endorsed by Rep. Suplico, Zamora, and Dilangalen House Committee on Justice
dismissed the complain because insufficient in substance
October 2003 Rep. Teodoro and Fuentebella filed second impeachment complaint founded
on the alleged results of the legislative inquiry; resolution of endorsement/impeachment was
signed by at least 1/3 of all the members of the House of Representatives.
ISSUES
(1) WON the issue is justiciable.
(2) WON the Rules of Procedure for Impeachment Proceedings adopted by 12th Congress is
constitutional.
(3) WON the second impeachment complaint is valid.
HELD/RATIO
(1) YES. Resolution sponsored by Rep. Fuentebella, directing the Committee on Justice to conduct
an investigation, in aid of legislation, on the manner of disbursements and expenditures by the
Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).
Former Pres. Estrada filed an impeachment complaint (first impeachment complaint) against
CJ Davide Jr. and seven Assoc. SC Justices culpable violation of the Constitution, betrayal of
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and was referred to the House Committee on Justice
House Committee on Justice ruled that the first impeachment complaint was sufficient in
form, but voted to dismiss the same for being insufficient in substance. To date, Committee
Report to this effect has not yet been sent to the House in plenary in accordance with the said
Section 3(2) of Article XI of the Constitution.
4 months and 3 weeks since the filing on June 2, 2003 of the first complaint or on October 23,
2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint was filed with the Sec Gen of HS Reps. Gibo Teodoro and Fuentebella
against CJ Davide, Jr., founded on the alleged results of the legislative inquiry initiated by
above-
Endorsement/Impeachment signed by at least one-third (1/3) of all the Members of the
House of Representatives.
Thus arose the instant petitions against the HR, et. al., most of which petitions contend that
the filing of the second impeachment complaint is unconstitutional as it violates the provision
of Section 5 of Article XI of the Constitution that *n+o impeachment proceedings shall be
initiated against the same official more than once within a period of one year.
HRs comment on the petitions filed against them: SC has no jurisdiction to hear, much less
prohibit or enjoin the HR, which is an independent and co-equal branch of government under
the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases.
Senator Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela) and
Comment: PRAYER: consolidated petitions be dismissed for lack of jurisdiction of the Court
over the issues affecting the impeachment proceedings and that the sole power, authority
and jurisdiction of the Senate as the impeachment court to try and decide impeachment
cases, including the one where the Chief Justice is the respondent, be recognized and upheld
pursuant to the provisions of Article XI of the Constitution.
Senate of the Philippines, through Senate President Drilon, filed a Manifestation: Insofar as it
is concerned, petitions are plainly premature and have no basis in law or in fact, adding that
as of the time of the filing of the petitions, no justiciable issue was presented before it since
(1) its constitutional duty to constitute itself as an impeachment court commences only upon
its receipt of the Articles of Impeachment, which it had not, and
(2) the principal issues raised by the petitions pertain exclusively to the proceedings in the HR.
(2) NO. House of Representatives says: S16 and 17 of Rule V of the House Impeachment Rules do
not violate Section 3 (5) of Article XI Constitution.
The term initiate does not mean to file;
S3 (1) is clear in that it is the HR, as a collective body, which has the exclusive power to initiate
all cases of impeachment;
- Initiate could not possibly mean to file because filing can, as Section 3 (2), Article
XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by
any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the
members of the House.
The 1 year bar prohibiting the initiation of impeachment proceedings against the same
officials could not have been violated as the
impeachment complaint against CJ Davide and 7 Assoc. SC Justices had not been initiated as
the HR, acting as the collective body, has yet to act on it.
Interpretation of the term initiate
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Commissioner Regalados take on the meaning of initiate as tofile: The act of initiating
included the act of taking initial action on the complaint, indeed the word initiate as it twice
appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial
action on it.
Initiate of course is understood by ordinary men to mean, as dictionaries do, to begin, to
commence, or set going. As Websters Third New International Dictionary of the English
Language concisely puts it, it means to perform or facilitate the first action.
Father Bernas: Briefly then, an impeachment proceeding is not a single act. It is a comlexus
of acts consisting of a beginning, a middle and an end. The end is the transmittal of the
articles of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation is
the filing of the complaint and its referral to the Committee on Justice.
The House Rule relied upon by Reps. Cojuangco and Fuentebella says that impeachment is
deemed initiated when the Justice Committee votes in favor of impeachment or when the
House reverses a contrary vote of the Committee.
The Rule does not say impeachment proceedings are initiated but rather are deemed
initiated. The language is recognition that initiation happened earlier, but by legal fiction
there is an attempt to postpone it to a time after actual initiation.
Citing from ConCom deliberations: HR is not the body which initiates it. It only approves or
disapproves the resolution. The initiation, as far as the HR of the US is concerned, really
starts from the filing of the verified complaint and every resolution to impeach always carries
with it the Articles of Impeachment.
Father Bernas during oral arguments: The word initiate, appearing in the constitutional
provisionon impeachment refers to two objects, impeachment case and impeachment
proceeding.
In these two provisions, the common verb is to initiate. The object in the first sentence is
impeachment case. The object in the second sentence is impeachment proceeding.
Following the principle of reddendo singuala sinuilis, the term cases must be distinguished
from the term proceedings. An impeachment case is the legal controversy that must be
decided by the Senate. The House, by a vote of 1/3 of all its members, can bring a case to the
Senate. It is in that sense that the House has exclusive power to initiate all cases of
impeachment. No other body can do it. However, before a decision is made to initiate a case
in the Senate, a proceeding must be followed to arrive at a conclusion. A proceeding must
be initiated. To initiate, which comes from the Latin word initium, means to begin. On the
other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It
takes place not in the Senate but in the House and consists of several steps:
(1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives;
(2) there is the processing of this complaint by the proper Committee which may either reject
the complaint or uphold it;
(3) whether the resolution of the Committee rejects or upholds the complaint, the resolution
must be forwarded to the House for further processing; and
(4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a
vote of one-third of all the members.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance,
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or (2) once the House itself affirms or overturns the finding of the Committee on Justice that
the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term initiate a meaning
different from filing.
(3) NO. Initiation takes place by the act of filing of the impeachment complaint and referral to the
House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article
XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner,
another may not be filed against the same official within a one year period following Article XI,
Section 3(5) of the Constitution.
Considering that the first impeachment complaint, was filed by former Pres. Estrada against
CJ Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred
to the House Committee on Justice on August 5, 2003, the second impeachment complaint
filed by Reps. Gibo Teodoro, Jr. and Felix Fuentebella against the CJ on October 23, 2003
violates the constitutional prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one- year period.
J. Abolition of Office
K. Conviction of Crime
GARCIA V. COA | Bellosillo, 1993
FACTS
Vicente Garcia was a Supervising Lineman in the Region IV Station of the Bureau of
Telecommunications in Lucena City.
He was summarily dismissed from the service on the ground of dishonesty in accordance with
the decision of the then Ministry of Public Works, Transportation and Communications in
Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-
Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the
decision.
A criminal case for qualified theft was filed against petitioner with the then Court of First
Instance. The trial court rendered its decision acquitting petitioner of the offense charged.
Consequently, petitioner sought reinstatement to his former position in view of his acquittal
in the criminal case. This was denied by the Bureau of Telecommunications. Hence, petitioner
pleaded to the President of the Philippines for executive clemency.
Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President,
granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective
1 April 1975, the date of his dismissal from the service. This was denied by the COA on the
ground that the executive clemency granted to him did not provide for the payment of back
salaries and that he has not been reinstated in the service.
Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the
date of his dismissal, to 12 March 1984, when he was reinstated. COA denied the claim stating
that the executive clemency was silent on the payment of back wages and that he had not
rendered service during the period of his claim.
Petitioner appealed the COA decision to the Office of the President. Deputy Executive
Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 106 Ma. Jessa M. Alvarez
legal and constitutional constraint," holding that the SC is the proper forum to take
cognizance of the appeal on certiorari from the decision of the COA.
ISSUE
WON Garcia is entitled to the payment of back wages after having been reinstated pursuant to the
grant of executive clemency.
HELD/RATIO
YES. Every civilized country recognizes, and has therefore provided for, the pardoning power to be
exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to
be exercised by some department or functionary of a government, a country would be most
imperfect and deficient in its political morality and in that attribute of Deity whose judgments are
always tempered with money.
From among the different acts of executive clemency spelled out above, the clemency
granted to petitioner in the instant case partakes of the nature of an executive pardon.
Citing Monsanto v. Factoran: General rule: While a pardon has generally been regarded as
blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as
though he never committed the offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not
erase the fact of the commission of the crime and the conviction thereof. Pardon frees the
individual from all the penalties and legal disabilities and restores to him all his civil rights.
Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for
honesty, integrity and fair dealing. The pardoned offender regains his eligibility for
appointment to public office which was forfeited by reason of the conviction of the offense.
But since pardon does not generally result in automatic reinstatement because the offender
has to apply for reappointment, he is not entitled to back wages
If the pardon is based on the innocence of the individual, it affirms this innocence and makes
him a new man and as innocent; as if he had not been found guilty of the offense charged.
When a person is given pardon because he did not truly commit the offense, the pardon
relieves the party from all punitive consequences of his criminal act, thereby restoring to him
his clean name, good reputation and unstained character prior to the finding of guilt.
Petitioner was found administratively liable for dishonesty and consequently dismissed from
the service. However, he was later acquitted by the trial court of the charge of qualified theft
based on the very same acts for which he was dismissed. The acquittal of petitioner by the
trial court was founded not on lack of proof beyond reasonable doubt but on the fact that
petitioner did not commit the offense imputed to him. Aside from finding him innocent of the
charge, the trial court commended petitioner for his concern and dedication as a public
servant. Verily, petitioner's innocence is the primary reason behind the grant of executive
clemency to him, bolstered by the favorable recommendations for his reinstatement by the
Ministry of Transportation and Communications and the Civil
Service Commission. - The bestowal of executive clemency on petitioner in effect
completely obliterated the adverse effects of the administrative decision
which found him guilty of dishonesty and ordered his separation from the service. This can be
inferred from the executive clemency itself exculpating petitioner from the administrative
charge and thereby directing his reinstatement, which is rendered automatic by the grant of
the pardon. This signifies that petitioner need no longer apply to be reinstated to his former
employment; he is restored to his office ipso facto upon the issuance of the clemency.
This automatic reinstatement to the government service entitles him to back wages. It is
meant to afford relief to petitioner who is innocent from the start and to make reparation for
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what he has suffered as a result of his unjust dismissal from the service. To rule otherwise
would defeat the very intention of the executive clemency, i.e., to give justice to petitioner.
Moreover, the right to back wages is afforded to those with have been illegally dismissed and
were thus ordered reinstated or to those otherwise acquitted of the charges against them. No
doubt that petitioner's case falls within the situations aforementioned to entitle him to back
wages.
It is worthy to note that the dismissal of petitioner was not the result of any criminal
conviction that carried with it forfeiture of the right to hold public office, but is the direct
consequence of an administrative decision of a branch of the Executive Department over
which the President, as its head, has the power of control. The President's control has been
defined to mean "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to the judgment of the
former for the latter. In pardoning petitioner and ordering his reinstatement, the Chief
Executive exercised his power of control and set aside the decision of the Ministry of
Transportation and Communications. The clemency nullified the dismissal of petitioner and
relieved him from administrative liability. The separation of the petitioner from the service
being null and void, he is thus entitled to back wages.
After having been declared innocent of the crime of qualified theft, which also served as basis
for the administrative charge, petitioner should not be considered to have left his office for all
legal purposes, so that he is entitled to all the rights and privileges that accrued to him by
virtue of the office held, including back wages.
L. Recall
GARCIA V. COMELEC | Puno, 1993
FACTS
Enrique T. Garcia was elected governor of the province of Bataan in the May 11, 1992
elections.
In the early evening of July 1, 1993, some mayors, vice-mayors and members of the
Sangguniang Bayan of the twelve (12) municipalities of the province met at the National
Power Corporation compound in Bagac, Bataan.
At about 12:30 A.M. of the following day, July 2, 1993, they proceeded to the Bagac town
plaza where they constituted themselves into a Preparatory Recall Assembly to initiate the
recall election of petitioner Garcia.
Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque, was recognized and he
moved that a resolution be passed for the recall of the petitioner Garcia on the ground of
"loss of confidence." The motion was "unanimously seconded."
Petitioners filed with the respondent COMELEC a petition to deny due course to said
Resolution No. 1. Petitioners alleged that the PRAC failed to comply with the "substantive and
procedural requirements" laid down in Section 70 of R.A. 7160, otherwise known as the Local
Government Code of 1991.
COMELEC dismissed the petition and scheduled the recall elections for the position of
Governor of Bataan on October 11, 1993. Petitioners then filed with Us a petition for
certiorari and prohibition with writ of preliminary injunction to annul the said Resolution of
the respondent COMELEC. SC granted the petition.
Honorable Mayor of Dinalupihan, Oscar de los Reyes again sent Notice of Session to the
members of the PRAC to "convene in session on September 26, 1993 at the town plaza of
Balanga, Bataan at 8:30 o'clock in the morning." From news reports, the PRAC convened in
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
session and eighty-seven (87) of its members once more passed a resolution calling for the
recall of petitioner Garcia.
petitioners filed with Us a Supplemental Petition and Reiteration of Extremely Urgent Motion
presiding for a resolution of their contention that section 70 of R.A. 7160 is unconstitutional.
ISSUE
WON Sec. 70 on recall is constitutional.
HELD/RATIO
YES. Recall is a mode of removal of a public officer by the people before the end of his term of
office. The people's prerogative to remove a
public officer is an incident of their sovereign power and in the absence of constitutional restraint,
the power is implied in all governmental operations. Such power has been held to be indispensable
for the proper administration of public affairs. Not undeservedly, it is frequently described as a
fundamental right of the people in a representative democracy.
Recall is a mode of removal of elective local officials made its maiden appearance in our 1973
Constitution. It was mandated in section 2 of Article XI entitled Local Government. The
Batasang Pambansa then enacted BP 337 entitled "The Local Government Code of 1983."
Section 54 of its Chapter 3 provided only one mode of initiating the recall elections of local
elective officials, i.e., by petition of at least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned.
The successful use of people power to remove public officials who have forfeited the trust of
the electorate led to its firm institutionalization in the 1987 Constitution. Its Article XIII
expressly recognized the Role and Rights of People's Organizations: Sec. 15. The State shall
respect the role of independent people's organizations to enable the people to pursue and
protect, within the democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means. People's organizations are bona fide
associations of citizens with demonstrated capacity to promote the public interest and with
identifiable leadership, membership, and structure. AND Sec. 16. The right of the people and
their organizations to effective and reasonable participation at all levels of social, political,
and economic decision-making shall not be abridged. The State shall, by laws, facilitate the
establishment of adequate consultation mechanisms.
Section 3 of its Article X also reiterated the mandate for Congress to enact a local government
code which "shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of recall, initiative
and referendum...
In response, Congress provided in the LGC for a second mode of initiating the recall process
through a preparatory recall assembly which in the provincial level is composed of all mayors,
vice-mayors and sanggunian members of the municipalities and component cities. SEE
CHAPTER V: SEC. 69-74
A reading of the legislative history of these recall provisions will reveal that the idea of
empowering a preparatory recall assembly to initiate the recall from office of local elective
officials originated from the House of Representatives The legislative records reveal
there were two (2) principal reasons why this alternative mode of initiating the recall process
thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the
direct action of the people; and (b) to cut down on its expenses. Our lawmakers took note of
the undesirable fact that the mechanism initiating recall by direct action of the electorate was
utilized only once in the City of Angeles, Pampanga, but even this lone attempt to recall the
city mayor failed. Former Congressman Wilfredo Cainglet explained that this initiatory process
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 107
by direct action of the people was too cumbersome, too expensive and almost impossible to
implement. Consequently, our legislators added in a second mode of initiating the recall of
local officials thru a preparatory recall assembly. They brushed aside the argument that this
second mode may cause instability in the local government units due to its imagined ease.
Petitioner says: Right to recall does not extend merely to the prerogative of the electorate to
reconfirm or withdraw their confidence on the official sought to be recalled at a special
election. Such prerogative necessarily includes the sole and exclusive right to decide on
whether to initiate a recall proceedings or not.
SC says: There is nothing in the Constitution that will remotely suggest that the people have
the sole and exclusive right to decide on whether to initiate a recall proceeding. The
Constitution did not provide for any mode, let alone a single mode, of initiating recall
elections. Neither did it prohibit the adoption of multiple modes of initiating recall elections.
The mandate given by section 3 of Article X of the Constitution is for Congress to enact a
local government code which shall provide for a more responsive and accountable local
government structure through a system of decentralization with effective mechanisms of
recall, initiative, and referendum . . . By this constitutional mandate, Congress was clearly
given the power to choose the effective mechanisms of recall as its discernment dictates. The
power given was to select which among the means and methods of initiating recall elections
are effective to carry out the judgment of the electorate. Congress was not straightjacketed
to one particular mechanism of initiating recall elections. What the Constitution simply
required is that the mechanisms of recall, whether one or many, to be chosen by Congress
should be effective. Using its constitutionally granted discretion, Congress deemed it wise to
enact an alternative mode of initiating recall elections to supplement the former mode of
initiation by direct action of the people. Congress has made its choice as called for by the
Constitution and it is not the prerogative of this Court to supplant this judgment. The choice
may be erroneous but even then, the remedy against a bad law is to seek its amendment or
repeal by the legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law.
Petitioner says: In passing Resolution 1, the Bataan PRA did not only initiate the process of
recall but had de facto recalled petitioner Garcia from office, a power reserved to the people
alone. The PRA resolution of recall is the recall itself! The initiation of a recall through the
PRA effectively shortens and ends the term of the incumbent local officials. Precisely, in the
case of Gov. Garcia, an election was scheduled by the COMELEC to determine who has the
right to assume the unexpired portion of his term of office which should have been until June
1995. Having been relegated to the status of a mere candidate for the same position of
governor (by operation of law) he has, therefore, been effectively recalled."
SC says: Misconstrued the nature of the initiatory process of recall by the PRAC i.e. initiation
by the PRAC is not initiation by the people. This is a misimpression for initiation by the PRAC is
also initiation by the people, albeit done indirectly through their representatives. It is not
constitutionally impermissible for the people to act through their elected representatives.
Nothing less than the paramount task of drafting our Constitution is delegated by the people
to their representatives, elected either to act as a constitutional convention or as a
congressional constituent assembly. The initiation of a recall process is a lesser act and there
is no rhyme or reason why it cannot be entrusted to and exercised by the elected
representatives of the people. More far out is petitioners' stance that a PRA resolution of
recall is the recall itself. It cannot be seriously doubted that a PRA resolution of recall merely,
starts the process. It is part of the process but is not the whole process. This ought to be self
evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will
not recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people
PROF. GISELLA N. DIZON-REYES
 108 Ma. Jessa M. Alvarez
in the election called for the purpose bears no effect whatsoever. The initiatory resolution
merely sets the stage for the official concerned to appear before the tribunal of the people so
he can justify why he should be allowed to continue in office. Before the people render their
sovereign judgment, the official concerned remains in office but his right to continue in office
is subject to question. This is clear in Sec. 72 LGC which states that "the recall of an elective
local official shall be effective only upon the election and proclamation of a successor in the
person of the candidate receiving the highest number of votes cast during the election on
recall."
Petitioners' argument does not really assail the law but its possible abuse by the members of
the PRAC while exercising their right to initiate recall proceedings. More specifically, the fear
is expressed that the members of the PRAC may inject political color in their decision as they
may initiate recall proceedings only against their political opponents especially those
belonging to the minority. A careful reading of the law, however, will ineluctably show that it
does not give an asymmetrical treatment to locally elected officials belonging to the political
minority.
Politically neutral composition of the preparatory recall assembly. Under the law, all mayors,
vice-mayors and sangguniang members of the municipalities and component cities are made
members of the preparatory recall assembly at the provincial level. Its membership is not
apportioned to political parties. No significance is given to the political affiliation of its
members. 2. The preparatory recall assembly, at the provincial level includes all the elected
officials in the province concerned. Considering their number, the greater probability is that
no one political party can control its majority.
Sec. 69 provides that the only ground to recall a locally elected public official is loss of
confidence of the people. The members of the PRAC are in the PRAC not in representation of
their political parties but as representatives of the people. By necessary implication, loss of
confidence cannot be premised on mere differences in political party affiliation. Indeed, our
Constitution encourages multi-party system for the existence of opposition parties is
indispensable to the growth and nurture of democratic system.
Clearly then, the law as crafted cannot be faulted for discriminating against local officials
belonging to the minority. The fear that a preparatory recall assembly may be dominated by a
political party and that it may use its power to initiate the recall of officials of opposite
political persuasions, especially those belonging to the minority, is not a ground to strike
down the law as unconstitutional. To be sure, this argument has long been in disuse for there
can be no escape from the reality that all powers are susceptible of abuse. The mere
possibility of abuse cannot, however, infirm per se the grant of power to an individual or
entity. To deny power simply because it can be abused by the grantee is to render
government powerless and no people need an impotent government. There is no democratic
government that can operate on the basis of fear and distrust of its officials, especially those
elected by the people themselves. On the contrary, all our laws assume that officials, whether
appointed or elected, will act in good faith and will perform the duties of their office. Such
presumption follows the solemn oath that they took after assumption of office, to faithfully
execute all our laws.
The law instituted safeguards to assure that the initiation of the recall process by a
preparatory recall assembly will not be corrupted by extraneous influences. As explained
above, the diverse and distinct composition of the membership of a preparatory recall
assembly guarantees that all the sectors of the electorate province shall be heard. It is for this
reason that we held that notice to all the members of the recall assembly is a condition sine
qua non to the validity of its proceedings. The law also requires a qualified majority of all the
preparatory recall assembly members to convene in session and in a public place. It also
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2003-29275 October 6, 2011
requires that the recall resolution by the said majority must be adopted during its session
called for the purpose. The underscored words carry distinct legal meanings and purvey some
of the parameters limiting the power of the members of a preparatory recall assembly to
initiate recall proceedings. Needless to state, compliance with these requirements is
necessary, otherwise, there will be no valid resolution of recall which can be given due course
by the COMELEC.
Citing Evardone vs. COMELEC: Loss of confidence as a ground for recall is a political
e of the municipality of Sulat has lost confidence in the
incumbent mayor is a political question.
Petitioner says: The resolution of the members of the preparatory recall assembly subverted
the will of the electorate of the province of Bataan who elected petitioner Garcia with a
majority of 12,500 votes.
SC says: The contention proceeds from the erroneous premise that the resolution of recall is
the recall itself. It refuses to recognize the reality that the resolution of recall is a mere
proposal to the electorate of Bataan to subject petitioner to a new test of faith. The proposal
will still be passed upon by the sovereign electorate of Bataan. As this judgment has yet to be
expressed, it is premature to conclude that the sovereign will of the electorate of Bataan has
been subverted. The electorate of Bataan may or may not recall petitioner Garcia in an
appropriate election. If the electorate re-elects petitioner Garcia, then the proposal to recall
him made by the preparatory recall assembly is rejected. On the other hand, if the electorate
does not re-elect petitioner Garcia, then he has lost the confidence of the people which he
once enjoyed. The judgment will write finis to the political controversy. For more than
judgments of courts of law, the judgment of the tribunal of the people is final for "sovereignty
resides in the people and all government authority emanates from them.
ANGOBUNG V. COMELEC | Hermosisima, 1997
FACTS
Ricardo Angobung won as the duly elected Mayor of the Municipality of Tumauini, Isabela in
the local elections of 1995. He garnered 55% of all the votes cast. Private respondent de
Alban was also a candidate in said elections.
private respondent filed with the Local Election Registrar of Tumauini, Isabela, a Petition for
Recall 3 against petitioner. Subsequently said petition was forwarded to the Regional Office in
Tuguegarao, Cagayan and then to the main office of COMELEC in Manila, for approval.
the COMELEC en banc issued the herein assailed Resolution which (1) approved the Petition
for Recall filed and signed by only one registered voter herein private respondent Ma. Aurora
Siccuan de Alban, against petitioner incumbent Mayor Ricardo Angobung; (2) set the further
signing of said petition by the rest of the registered voters of Tumauini, Isabela on November
9, 1996; and (3) in case the said petition is signed by at least 25% of the total number of
registered votes in Tumauini, Isabela, scheduled the recall election on December 2, 1996.
Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore
invalid, on two main grounds: (1) that the resolution approved the Petition for Recall albeit
same was signed by just one person in violation of the statutory 25% minimum requirement
as to the number of signatures supporting any petition for recall; and (2) that the resolution
scheduled the recall election within one (1) year from the May 12, 1997 Barangay Elections.
ISSUE
WON Sec. 69(d) of LGC is constitutional.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
HELD/RATIO
NO. In Sanchez and Evardone, the COMELEC prescribed procedure of (1) allowing the recall petition
to be filed by at least one person or by
less than 25% of the total number of registered voters and then (2) inviting voters to sign said
petition on a date set for that purpose, was never put to issue. As this is the crux of the present
constitutional challenge, the proper time has come for this court to issue a definitive ruling on the
matter.
Law as it stands: While the initiatory recall petition may not yet contain the signatures of at
least 25% of the total number of registered voters, the petition must contain the names of at
least 25% of the total number of registered voters in whose behalf only one person may sign
the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a number of people
less than the foregoing 25% statutory requirement, much less, the filing thereof by just one
person, as in the instant case, since this is indubitably violative of clear and categorical
provisions of subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They
knew that this is the requirement under a majority of the constitution and recall statutes in
various American states to the same extent that they were aware of the rationale therefor.
While recall was intended to be an effective and speedy remedy to remove an official who is
not giving satisfaction to the electorate regardless of whether or not he is discharging his full
duty to the best of his ability and as his conscience dictates, it is a power granted to the
people who, in concert, desire to change their leaders for reasons only they, as a collective,
can justify. In other words, recall must be pursued by the people, not just by one disgruntled
loser in the elections or a small percentage of disenchanted electors. Otherwise, its purposes
as a direct remedy of the people shall be defeated by the ill motives of a few among them
whose selfish resort to recall would destabilize the community and seriously disrupt the
running of government.
Court cited several US cases re: rationale underlying the time bar provisions and the
percentage of minimum voter requirement in American recall statutes, unmistakably reveals
the vigilance of lawmakers against the abuse of the power of recall.
In the instant case, this Court is confronted with a procedure that is unabashedly repugnant
to the applicable law and no less such to the spirit underlying that law. Private respondent
who is a lawyer, knows that Section 69(d) of the Local Government Code plainly provides that
recall is validly initiated by a petition of 25% of the total number of registered voters.
Notwithstanding such awareness, private respondent proceeded to file the petition for recall
with only herself as the filer and initiator. She claims in her petition that she has, together
with many others in Tumauini, Isabela, lost confidence in the leadership of petitioner. But the
petition does not bear the names of all these other citizens of Tumauini who have reportedly
also become anxious to oust petitioner from the post of mayor. There is no doubt that private
respondent is truly earnest in her cause, and the very fact that she affixed her name in the
petition shows that she claims responsibility for the seeming affront to petitioners
continuance in office. But the same cannot be said of all the other people whom private
respondent claims to have sentiments similar to hers. While the people are vested with
the power to recall their elected officials, the same power is accompanied by the concomitant
responsibility to see through all the consequences of the exercise of such power, including
rising above anonymity, confronting the official sought to be recalled, his family, his friends,
and his supporters, and seeing the recall election to its ultimatee nd. The procedure of
allowing just one person to file the initiatory recall petition and then setting a date for the
signing of the petition, which amounts to inviting and courting the public which may have not,
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2003-29275 October 6, 2011 109
in the first place, even entertained any displeasure in the performance of the official sought
to be recalled, is not only violative of statutory law but also tainted with an attempt to go
around the law. We cannot and must not, under any and all circumstances, countenance a
circumvention of the explicit 25% minimum voter requirement in the initiation of the recall
process.
Disciplinary cases:
OMBUDSMAN V. CA | Carpio, 2007
FACTS
Melly Magbanua was the Local Treasury Operations Assistant of the City Treasurers Office in
Bacolod City. On 27 February 1998, the Commission on Audit (COA) conducted an
examination of respondents cash and account. The examination disclosed a shortage of
P265,450. Upon demand, respondent failed to produce the missing amount.
Respondent alleged that the shortage was due to the machinations and dishonest acts of Cash
Clerk I Monina Baja (Baja).
Baja was impleaded in the case before the Ombudsman Visayas.
Ombudsman Visayas found respondent guilty of Neglect of Duty, and Baja guilty of
Dishonesty. recommended that respondent MA. MELLY JAUD MAGBANUA be meted the
penalty of SUSPENSION for SIX (6) MONTHS WITHOUT PAY for NEGLECT OF DUTY. For having
been found guilty of DISHONESTY, respondent MONIN[]A BAJA is meted the penalty of
DISMISSAL FROM SERVICE WITH FORFEITURE OF ALL BENEFITS AND DISQUALIFICATION TO
HOLD PUBLIC OFFICE.
Petitioner reviewed the Decision of the Ombudsman Visayas and imposed upon both
respondent and Baja the penalty of dismissal from the service.
Respondent filed a motion for reconsideration which was denied by petitioner.
Respondent filed a petition for certiorari before the Court of Appeals.
The Court of Appeals ruled that while petitioners findings were correct, petitioner has no
power to impose directly sanctions against government officials and employees who are
subject of its investigation. Citing Tapiador v. Office of the Ombudsman, the Court of Appeals
ruled that petitioners power is limited and it may only recommend, not impose, the
appropriate sanctions.
ISSUE
WON the Office of the Ombudsman has the power to impose directly administrative penalties on
public officials or employees.
HELD/RATIO
YES. Ombudsmans authority is not merely recommendatory. The Tapiador case was an obiter
dictum which has been clarified in a number of subsequent cases such as Ledesma.
Basis for the powers of Ombudsman: Article XI of the 1987 Constitution: exercise such other
powers or performs such functions or duties as may be provided by law.
RA 6770 (Ombudsman Act of 1989) SEC. 15. Powers, Functions and Duties. The Office of
the Ombudsman shall have the following powers, functions ad duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, of fice or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
PROF. GISELLA N. DIZON-REYES
 110 Ma. Jessa M. Alvarez 2003-29275
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage,
from any investigatory agency of Government, the investigation of such cases; x x x
(3) Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglects to perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this
Act: Provided, That the refusal by any officer without just cause to comply with an order of
the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or
employee who is at fault or who neglects to perform an act or discharge a duty required by
law shall be a ground for disciplinary action against said officer. x x x
SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary. X x x
SEC. 25. Penalties. (1) In administrative proceedings under Presidential Decree No. 807, the
penalties and rules provided therein shall be applied. (2)
Inotheradministrativeproceedings,thepenaltyrangingfromsuspensionwithoutpayforoneyearto
dismissalwithforfeitureof benefits or a fine ranging from five thousand pesos (P5,000.00) to
twice the amount malversed, illegally taken or lost, or both at the discretion of the
Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability
of the officer or employee found guilty of the complaint or charges.
Anent reliance on Ledesma v CA: The main issue in Tapiador was the failure of the
complainant to present substantial evidence to prove the charges in the administrative case.
The Court ruled that the reference in Tapiador to the power of the Ombudsman is at best
merely an obiter dictum. SC ruled that the statement on the Ombudsmans power was not
supported by sufficient explanation and was susceptible to varying interpretations. It
categorically stated that the statement cannot be cited as a doctrinal declaration of the Court.
SC recognized the authority of the Office of the Ombudsman under Article XI of the 1987
Constitution and RA 6770, thus: It has long been settled that the power of the Ombudsman
to investigate and prosecute any illegal act or omission of any public official is not an exclusive
authority but a shared or concurrent authority in respect of the offense charged. By stating
therefore that the Ombudsman recommends the action to be taken against an erring officer
or employee, the provisions in the Constitution and in RA 6770 intended that the
implementation of the order be coursed through the proper officer x x x. It is thus clear that
the framers of our Constitution intended to create a stronger and more effective
Ombudsman, independent and beyond the reach of political influences and vested with
powers that are not merely persuasive in character. The Constitutional Commission left to
[the] Congress to empower the Ombudsman with prosecutorial functions which it did when
RA 6770 was enacted. x x x.
Citing Ombudsman v CA: [The] provisions in RA 6770 taken together reveal the manifest
intent of the lawmakers to bestow on the Office of the Ombudsman full administrative
disciplinary authority. These provisions cover the entire gamut of administrative adjudication
which entails the authority to, inter alia, receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure, summon witnesses and require the
production of documents, place under preventive suspension public officers and employees
pending an investigation, determine the appropriate penalty imposable on erring public
officers or employees as warranted by the evidence, and necessarily, impose the said penalty.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
The lawmakers envisioned the Office of the Ombudsman to be an activist watchman, not
merely a passive one.
The Court ruled in Estarija that under RA 6770 and the 1987 Constitution, the Ombudsman
has the constitutional power to directly remove from government service an erring public
official, other than a member of Congress and the Judiciary.
Citing Barillo v Gervasio: While Section 15(3) of RA 6770 states that the Ombudsman has the
power to recommend x x x removal, suspension, demotion x x x of government officials and
employees, the same Section 15(3) also states that the Ombudsman in the alternative may
enforce its disciplinary authority as provided in Section 21 of RA 6770. The word
or in Section 15(3) before the phrase enforce its disciplinary authority as provided in
Section 21 grants the Ombudsman this alternative power.
MAROHOMSALIC V. COLE | Corona, 2008
FACTS
Romulo J. Marohomsalic was employed as Special Land Investigator I of the Provincial
Environment and Natural Resources Office of the Department of Environment and Natural
Resources (PENRO-DENR) in Koronadal City.
Respondent Reynaldo D. Cole had a pending land dispute case in the PENRO-DENR in
Koronadal City. he went to said office to inquire on the status of his case. He met
Marohomsalic and asked him for assistance as he was not from Koronadal but from General
Santos City.
Marohomsalic, on one hand, asserted that on March 8, 2001, Cole gave him cash purportedly
to cover the expenses for photocopying the documents needed in the case. On the other
hand, Cole claimed (and the Ombudsman affirmed) that Marohomsalic demanded P15,000 to
secure the reversal of the PENRO-DENR decision against him (Cole). Cole sought the
assistance of the National Bureau of Investigation to entrap Marohomsalic. On March 8,
2001, Marohomsalic was caught in flagrante delicto receiving bribe money of P2,700 from
Cole.
An administrative complaint for grave misconduct was filed against Marohomsalic in the
Office of the Ombudsman-Mindanao. Ombudsman found Marohomsalic guilty and dismissed
him from the service.
Marohomsalic appealed to the CA, dismissed. He then filed this petition for review on
certiorari.
Marohomsalic claims that his right to due process was violated by both the Ombudsman and
the CA.
ISSUES
(1) WON CA acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it
dismissed his petition for review on technical grounds.
(2) WON his right to due process was violated by both the Ombudsman and the CA when his case
was set neither for preliminary investigation nor for preliminary conference.
HELD/RATIO
(1) NO. The Ombudsman has the power to order the dismissal of a public officer.
The jurisdiction of the Ombudsman over disciplinary cases against government employees is
vested by no less than Sec 12, Art XI of the Constitution. Part of such disciplinary authority in
administrative cases is the power to investigate and prosecute, in accordance with the
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
requirements laid down by law. One such requirement is that substantial evidence must
always support any finding.
One of the grounds for an administrative complaint cognizable by the Ombudsman is an act
or omission contrary to law or regulations like grave misconduct. It is characterized by the
elements of corruption, clear intent to violate the law or flagrant disregard of an established
rule. Corruption as an element of grave misconduct includes the act of an official who
unlawfully or wrongfully uses his station or character to procure some benefit for himself,
contrary to the rights of others.
The Ombudsman found that Marohomsalic directly requested and received money from Cole
in connection with a transaction in which he was involved in his official capacity. It concluded
that Marohomsalics act constituted grave misconduct. An analysis of the assailed decision of
the Ombudsman-Mindanao shows that there was substantial evidence to sustain such
finding.
Except in cases when there is grave abuse of discretion [in the exercise of its discretion],
which is absent in [this] case, Court has adopted a policy of non-interference in the exercise of
the Ombudsmans constitutionally mandated powers on this matter.
Corollary to the Ombudsmans disciplinary authority is his authority to dismiss. RA 6770,
which provides for the functional and structural organization of the Office of the
Ombudsman, was passed by Congress to deliberately endow the Ombudsman with the power
to prosecute offenses committed by public officers and employees to make him a more active
and effective agent of the people in ensuring accountability in public office. Moreover,
Congress granted the Ombudsman broad powers to implement his own actions.
(2) NO. Section 4 of Administrative Order No. 7, as amended by Administrative Order No. 17,
provides: [The rules] shall govern all cases brought after they take effect and to further proceedings
in cases then pending, except to the extent that their application would not be feasible OR would
cause injustice to any party.
Since the subject of this petition is an administrative complaint, not a criminal complaint, this
case is not subject to criminal laws and procedure,orprinciplesapplicableonlythereto.
Moreimportantly,hemustnotbeallowedtohidebehindthecloakofliberal construction favoring
the accused, if at all this principle finds application in this case. To permit him to do so will be
a mockery of public trust and accountability.
JOSON V. TORRES | Puno, 1998
FACTS
The validity of the suspension from office of petitioner Eduardo Nonato Joson as Governor of
the province of Nueva Ecija. Private respondent Oscar C. Tinio is the Vice-Governor of said
province while private respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos,
Vicente C. Palilio and Napoleon G. Interior are members of the Sangguniang Panlalawigan.
private respondents filed with the Office of the President a letter-complaint charging
petitioner with grave misconduct and abuse of authority. Private respondents alleged that
they were at the session hall of the provincial capitol for a scheduled session of the
Sangguniang Panlalawigan when petitioner belligerently barged into the Hall; petitioner
angrily kicked the door and chairs in the Hall and uttered threatening words at them; close
behind petitioner were several men with long and short firearms who encircled the area.
Private respondents claim that this incident was an offshoot of their resistance to a pending
legislative measure supported by petitioner that the province of Nueva Ecija obtain a loan of
P150 million from the Philippine National Bank; that petitioner's acts were intended to harass
them into approving this loan.
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2003-29275 October 6, 2011 111
Private respondents prayed for the suspension or removal of petitioner; for an emergency
audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in light
of the financial condition of the province.
The President acted on the complaint: President Ramos noted that the situation of "12 Sep at
the Session Hall," i.e., the refusal of the members of the Sangguniang Panlalawigan to
approve the proposed loan, did not appear to justify "the use of force, intimidation or armed
followers." He thus instructed the then Secretary of the Interior and Local Governments (SILG)
Robert Barbers to "[t]ake appropriate preemptive and investigative actions," but to "[b]reak
not the peace."
Acting upon the instructions of the President, Secretary Barbers notified petitioner of the case
against him and attached to the notice a copy of the complaint and its annexes.
Secretary Barbers proceeded to Nueva Ecija and summoned petitioner and private
respondents to a conference to settle the controversy. The parties entered into an agreement
whereby petitioner promised to maintain peace and order in the province while private
respondents promised to refrain from filing cases that would adversely affect their peaceful
co-existence.
The peace agreement was not respected by the parties and the private respondents
reiterated their letter-complaint. Petitioner was again ordered to file his answer to the letter-
complaint within fifteen days from receipt.
petitioner requested for an extension of thirty (30) days to submit his answer The DILG
granted the request for extension "for the last time up to January 13 only."
petitioner requested for another extension of thirty (30) days to file his answer. The DILG
granted petitioner's request "for the last time" but gave him an extension of only ten (10)
days from January 13, 1997 to January 23, 1997. The DILG also informed him that his "failure
to submit answer will be considered a waiver and that the plaintiff [shall] be allowed to
present his evidence ex-parte."
Petitioner moved for reconsideration of the order. He reiterated his prayer for an extension of
thirty (30) days
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary
of the DILG, issued an order declaring petitioner in default and to have waived his right to
present evidence. Private respondents were ordered to present their evidence ex-parte.
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion,
representing petitioner, filed with the DILG an "Entry of Appearance with Motion for Time to
File Answer Ad Cautelam."
Undersecretary Sanchez issued an order stating that petitioner's counsel, whose office is in
Manila, should have received a copy of the May 19, 1997 order ten days after mailing on May
27, 1997. Since petitioner still failed to file his answer, he was deemed to have waived his
right to present evidence in his behalf. Undersecretary Sanchez reinstated the order of
default and directed private respondents to present their evidence ex-parte
petitioner, through counsel, filed a "Motion to Dismiss."
on recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued an order,
by authority of the President, placing petitioner under preventive suspension for sixty (60)
days pending investigation of the charges against him.
petitioner filed a petition for certiorari and prohibition with the Court of Appeals challenging
the order of preventive suspension and the order of default.
Petitioner alleged that subsequent to the institution of this petition, the Secretary of the
Interior and Local Governments rendered a resolution on the case finding him guilty of the
offenses charged. His finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of complainants' witnesses
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 112 Ma. Jessa M. Alvarez
to be "more natural, reasonable and probable" than those of herein petitioner Joson's. 30
January 8, 1998, the Executive Secretary, by authority of the President, adopted the findings
and recommendation of the DILG Secretary. He imposed on petitioner the penalty of
suspension from office for six (6) months without pay.
ISSUES
(1) WON the formal defects in the verification was fatal to the case.
(2) WON DILG Secretary had jurisdiction and authority over the case.
(3) WON the preventive suspension was validly imposed.
(4) WON petitioner had the right to formal investigation.
HELD/RATIO
(1) NO. Administrative disciplinary proceedings against elective local officials are governed by the
LGC of 1991, the Rules and Regulations
Implementing the LGC of 1991, and Administrative Order No. 23 entitled Prescribing the
Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against
Elective Local Officials of Provinces, Highly Urbanized Cities, Independent Component Cities,
and Cities and Municipalities in Metropolitan Manila. In all matters not provided in A.O. No.
23, the Rules of Court and the Administrative Code of 1987 apply in a suppletory character.
Grounds for which an elective local official may be disciplined, suspended or removed from
office is enumerated in Section 60 of Chapter 4, Title II, Book I of the LGC.
Section 61 of Chapter 4, Title II, Book I of the LGC: When an elective local official commits an
act that falls under the grounds for disciplinary action, the administrative complaint against
him must be verified and filed with the proper government office. A complaint against an
elective provincial or city official must be filed with the Office of the President. A complaint
against an elective municipal official must be filed with the Sangguniang Panlalawigan while
that of a barangay official must be filed before the Sangguniang Panlungsod or Sangguniang
Bayan.
In the instant case, Joson is an elective official of the province of Nueva Ecija. The letter-
complaint against him was therefore properly filed with the Office of the President.
Petitioner argues: The letter-complaint failed to conform with the formal requirements set by
the Code: Complaint was not verified by private respondents and was not supported by the
joint affidavit of the two witnesses named therein; that private resp later realized these
defects and surreptitiously inserted the verification and sworn statement while the complaint
was still pending with the OP.
Assuming, nonetheless, that the letter-complaint was unverified when submitted to the OP,
the defect was not fatal. The requirement
of verification was deemed waived by the President himself when he acted on the complaint.
Verification is a formal, not jurisdictional requisite. Verification is mainly intended to secure
an assurance that the allegations therein made are done in good faith or are true and correct
and not mere speculation. The lack of verification is a mere formal defect. The court may
order the correction of the pleading, if not verified, or act on the unverified pleading if the
attending circumstances are such
that a strict compliance with the rule may be dispensed with in order that the ends of justice
may be served.
(2) YES. Jurisdiction over administrative disciplinary actions against elective local officials is lodged
in two authorities: the Disciplining Authority and the Investigating Authority. Sec. 2. Disciplining
Authority. All administrative complaints, duly verified, against elective local officials mentioned in
the preceding Section shall be acted upon by the President. The President, who may act through
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the Executive Secretary, shall hereinafter be referred to as the Disciplining Authority. Sec. 3.
Investigating Authority. The Secretary of the ILG is hereby designated as the Investigating
Authority. He may constitute an Investigating Committee in the DILG for the purpose. The
Disciplining Authority may, however, in the interest of the service, constitute a Special Investigating
Committee in lieu of the Secretary of the Interior and Local Government.
Disciplining Authority is the President of the Philippines, whether acting by himself or through
the Executive Secretary. The Secretary
oftheILGistheInvestigatingAuthority,whomayactbyhimselforconstituteanInvestigatingCommitt
ee. TheSecretaryoftheDILG, however, is not the exclusive Investigating Authority. In lieu of the
DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee.
The power of the President over administrative disciplinary cases against elective local
officials is derived from his power of general supervision over local governments.
Constitutional basis: Section 4, Article X of the 1987 Constitution The President of the
Philippines shall exercise general supervision over local governments. Provinces with respect
to component cities and municipalities, and cities and municipalities with respect to
component barangays shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions.
The power of supervision means overseeing or the authority of an officer to see that the
subordinate officers perform their duties. If the subordinate officers fail or neglect to fulfill
their duties, the official may take such action or step as prescribed by law to make them
perform their duties. The President's power of general supervision means no more than the
power of ensuring that laws are faithfully executed, OR that subordinate officers act within
the law. Supervision is not incompatible with discipline. And the power to discipline and
ensure that the laws be faithfully executed must be construed to authorize the President to
order an investigation of the act or conduct of local officials when in his opinion the good of
the public service so requires.
Citing Villena case: Independently of any statutory provision authorizing the President to
conduct an investigation of the nature involved in this proceeding, and in view of the nature
and character of the executive authority with which the President of the Philippines is
invested, the constitutional grant to him of power to exercise general supervision over all
local governments and to take care that the laws be faithfully executed must be construed to
authorize him to order an investigation of the act or conduct of the petitioner herein.
Supervision is not a meaningless thing. It is an active power. It is certainly not without
limitation, but it at least
impliesauthoritytoinquireintofactsandconditionsinordertorenderthepowerrealandeffective.
Ifsupervisionistobe conscientious and rational, and not automatic and brutal, it must be
founded upon a knowledge of actual facts and conditions disclosed after careful study and
investigation.
The power to discipline evidently includes the power to investigate. As the Disciplining
Authority, the President has the power derived from the Constitution itself to investigate
complaints against local government officials. A. O. No. 23, however, delegates the power to
investigatetotheDILGoraSpecialInvestigatingCommittee,asmaybeconstitutedbytheDisciplining
Authority. Thisisnotundue delegation, contrary to Joson's claim. The President remains the
Disciplining Authority. What is delegated is the power to investigate, not the power to
discipline
The doctrine of qualified political agency (alter-ego) is corollary to the control power of the
President.. - The procedure how the Disciplining and Investigating Authorities should
exercise their powers is distinctly set forth in the LGC and A.O.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
No. 23. When an administrative complaint is therefore filed, the Disciplining Authority shall
issue an order requiring the respondent to submit his verified answer within 15 days from
notice. Upon filing of the answer, the Disciplining Authority shall refer the case to the
Investigating Authority for investigation.
Strictly applying the rules, the Office of the President did not comply with the provisions of
A.O. No. 23. The Office should have first required petitioner to file his answer. Thereafter, the
complaint and the answer should have been referred to the Investigating Authority for further
proceedings. Be that as it may, this procedural lapse is not fatal. The filing of the answer is
necessary merely to enable the President to make a preliminary assessment of the case. The
President found the complaint sufficient in form and substance to warrant its further
investigation.
(3) YES. In view of petitioner's inexcusable failure to file answer, the DILG did not err in
recommending to the Disciplining Authority his preventive suspension during the investigation.
Preventive suspension is authorized under Section 63 of the LGC.
When may preventive suspension be imposed by the Disciplining Authority? At any time... (a)
after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of
the offense, there is great probability that the respondent, who continues to hold office,
could influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence.
Requisites for preventive suspension had been complied with in this case i.e. failure to file an
answer = waiver of right to present evidence AND history of violent confrontational politics in
the province.
(4) YES. Validity of the Executive Secretarys Resolution finding petitioner guilty as charged and
imposing on him the penalty of suspension from office for 6 months from office without pay.
DILGs basis for denying his Motion To Conduct Formal Investigation: Before there shall be
a formal investigation, joinder of issues
mustalreadybepresentorrespondent'sanswerhasalreadybeenfiled.
Inthecaseatbar,theadmissionofrespondent'sanswerafter having been declared in default was
conditioned on the fact of submission of position papers by the parties, after which, the case
shall be deemed submitted for resolution.
The rejection of petitioner's right to a formal investigation denied him procedural due
process. - Section 5 of A. O. No. 23 - at the preliminary conference, the Investigating Authority
shall summon the parties to consider whether
they desire a formal investigation. This provision does not give the Investigating Authority the
discretion to determine whether a
formal investigation would be conducted. - The records show that petitioner filed a motion
for formal investigation. As respondent, he is accorded several rights under the law. Sec. 65.
Rights of Respondent. -- The respondent shall be accorded full opportunity to appear and
defend himself in person or by counsel,
to confront and cross-examine the witnesses against him, and to require the attendance of
witnesses and the production of
documentary evidence in his favor through compulsory process of subpoena or subpoena
duces tecum. - An erring elective local official has rights akin to the constitutional rights of
an accused. These rights are essentially part of procedural due process. The local elective
official has the (1) right to appear and defend himself in person or by counsel; (2) the right to
confront
and cross-examine the witnesses against him; and (3) the right to compulsory attendance of
witness and the production of documentary evidence. These rights are reiterated in the Rules
Implementing the Local Government Code and in A.O. No. 23. Well to note, Joson formally
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claimed his right to a formal investigation after his Answer Ad Cautelam has been admitted by
Undersecretary.
Petitioner's right to a formal investigation was not satisfied when the complaint against him
was decided on the basis of position papers. There is nothing in the Local Government Code
and its Implementing Rules and Regulations nor in A.O. No. 23 that provide that
administrative cases against elective local officials can be decided on the basis of position
papers.
The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal
investigation applies to appointive officials and employees. Administrative disciplinary
proceedings against elective government officials are not exactly similar to those against
appointive officials. In fact, the provisions that apply to elective local officials are separate and
distinct from appointive government officers and employees. This can be gleaned from the
Local Government Code itself.
The grounds for administrative disciplinary action in Book V are much more in number and
are specific than those enumerated in the Local Government Code against elective local
officials.
The provisions for administrative disciplinary actions against elective local officials are
markedly different from appointive officials. The rules on the removal and suspension of
elective local officials are more stringent. The procedure of requiring position papers in lieu of
a hearing in administrative cases is expressly allowed with respect to appointive officials but
not to those elected. An elective official, elected by popular vote, is directly responsible to the
community that elected him. The official has a definite term of office fixed by law which is
relatively of short duration. Suspension and removal from office definitely affects and
shortens this term of office. When an elective official is suspended or removed, the people
are deprived of the services of the man they had elected. Implicit in the right of suffrage is
that the people are entitled to the services of the elective official of their choice. Suspension
and removal are thus imposed only after the elective official is accorded his rights and the
evidence against him strongly dictates their imposition.
SOCRATES V. SANDIGANBAYAN | Regalado, 1996
FACTS
Socrates who is the incumbent governor of Palawan, was first elected governor of the said
province in 1968 and was again reelected in both the 1971 and 1980 elections, until he was
replaced by private complainant Victoriano Rodriguez as Officer-In-Charge Governor after the
EDSA Revolution in February 1986. Subsequently, both petitioner and Rodriguez ran for
governor in the 1988 elections where the latter emerged victorious. In the 1992 synchronized
national and local elections, the two again contested the gubernatorial post; and this time, it
was petitioner who won.
at the time Rodriguez was still the OIC Governor of the province, the Provincial Government
of Palawan, as represented by Rodriguez and the Provincial Board Members of Palawan, filed
before the Office of the Tanodbayan two (2) complaints. The first complaint charged
petitioner with violation of Section 3(b) of Anti-Graft and Corrupt Practices Act, and the
second charged petitioner, together with several other provincial officers, with violation of
Section 3(a) and (g).
Instead of filing a counter-affidavit as directed, petitioner filed a Motion to Suspend
Preliminary Investigation on the ground that upon the ratification of the 1987 Constitution,
the present Tanodbayan has been transformed into the Office of the Special Prosecutor and
has, therefore, lost his power to conduct preliminary investigation.
PROF. GISELLA N. DIZON-REYES
 114 Ma. Jessa M. Alvarez 2003-29275
Based on the Resolution of Special Prosecution Officer I Wendell Barreras-Sulit, which
affirmed the Resolution rendered by Ombudsman Investigator Ernesto Nocos recommending
the filing of appropriate charges against petitioner, the Office of the Special Prosecutor filed
with the respondent Court two (2) Informations against petitioner, docketed as Criminal
Cases Nos. 18027 and 18028. The first was for violation of Section 3(h) of Republic Act No.
3019, and the second for violation of Section 3(e).
Arguments: (1) He may not be suspended while the issue on the validity of the informations
filed against him is still pending review before the SC; and (2) Section 13 of RA 3019, which
forms the basis of the order of suspension, is unconstitutional on the ground that it
constitutes an undue delegation of the authority to suspend which is essentially an executive
power.
ISSUE
WON the imposition of the preventive suspension was valid.
HELD/RATIO
YES. Sec. 13. Suspension and Loss of Benefits. Any incumbent public officer against whom any
criminal prosecution under a valid information under this [1] Act OR [2] under Title 7, Book II of the
RPC OR [3] for any offense involving fraud upon government or public funds or property whether as
a simple or as complex offense and in whatever stage of execution and mode of participation, is
pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless
in the meantime administrative proceedings have been filed against him.
SC has ruled that under Section 13 of the anti-graft law, the suspension of a public officer is
mandatory after the validity of the information has been upheld in a pre-suspension hearing
conducted for that purpose. This pre-suspension hearing is conducted to determine basically
the validity of the information, from which the court can have a basis to either suspend the
accused and proceed with the trial on the merits of the case, OR correct any part of the
proceeding which impairs its validity. The hearing may be treated in the same manner as a
challenge to the validity of the information by way of a motion to quash.
Citing Luciano v Mariano: Guidelines in exercises of power of suspension: (c) By way of broad
guidelines for the lower courts in the exercise of the power of suspension from office of
public officers charged under a valid information under the provisions of RA 3019 or under
the provisions of the Revised Penal Code on bribery, pursuant to Section 13 of said Act, it may
be briefly stated that upon the filing of such information, the TC should issue an order with
proper notice requiring the accused officer to show cause at a specific date of hearing why he
should not be ordered suspended from office pursuant to the cited mandatory provisions of
the Act. Where either the prosecution seasonably files a motion for an order of suspension
OR the accused in turn files a motion to quash the information OR challenges the validity
thereof, such show-cause order of the trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the parties at a hearing held for determining the
validity of the information, and thereafter hand down its ruling, issuing the corresponding
order or suspension should it uphold the validity of the information or withhold such
suspension in the contrary case. (d) No specific rules need be laid down for such pre-
suspension hearing. Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the validity of the criminal proceedings against him, e.g., that he has
not been afforded the right of due preliminary investigation; that the acts for which he stands
charged do not constitute a violation of the provisions of RA 3019 or of the bribery provisions
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October 6, 2011
of the RPC which would warrant his mandatory suspension from office under Section 13 of
the Act; or he may present a motion to quash the information on any of the grounds provided
in Rule 117 of the Rules of Court. The mandatory suspension decreed by the Act upon
determination of the pendency in court of a criminal prosecution for violation of the Anti-
Graft Act or for bribery under a valid information requires at the same time that the hearing
be expeditious, and not unduly protracted such as to thwart the prompt suspension
envisioned by the Act. Hence, if the TC, say, finds the ground alleged in the quashal motion
not to be indubitable, then it shall be called upon to issue the suspension order upon its
upholding the validity of the information and setting the same for trial on the merits.
Upon a proper determination of the validity of the information, it becomes mandatory for the
court to immediately issue the suspension order. The rule on the matter is specific and
categorical. It leaves no room for interpretation. It is not within the court's discretion to hold
in abeyance the suspension of the accused officer on the pretext that the order denying the
motion to quash is pending review before the appellate courts.
Its discretion lies only during the pre-suspension hearing where it is required to ascertain
whether or not: (1) the accused had been afforded due preliminary investigation prior to the
filing of the information against him, (2) the acts for which he was charged constitute a
violation of the provisions of Republic Act No. 3019 or of the provision s of Title 7, Book II of
the Revised Penal Code, or (3) the informations against him can be quashed, under any of the
grounds provided in Section 2, Rule 117 of the Rules of Cou rt.
Once the information is found to be sufficient in form and substance, then the court must
issue the order of suspension as a matter of course. There are no ifs and buts about it. This is
because a preventive suspension is not a penalty. It is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and
to the salaries and benefits which he failed to receive during suspension. In view of this latter
provision, the accused elective public officer does not stand to be prejudiced by the
immediate enforcement of the suspension order in the event that the information is
subsequently declared null and void on appeal and the case dismissed as against him. Taking
into consideration the public policy involved in preventively suspending a public officer
charged under a valid information, the protection of public interest will definitely have to
prevail over the private interest of the accused.
To further emphasize the ministerial duty of the court under Section 13 of RA 3019, it is said
that the court trying a case has neither discretion nor duty to determine WON a preventive
suspension is required to prevent the accused from using his office to intimidate witnesses or
frustrate his prosecution or continue committing malfeasance in office. The presumption is
that unless the accused is suspended, he may frustrate his prosecution or commit further acts
of malfeasance or do both, in the same way that upon a finding that there is probable cause
to believe that a crime has been committed and that the accused is probably guilty thereof,
the law requires the judge to issue a warrant for the arrest of the accused. The law does not
require the court to determine whether the accused is likely to escape or evade the
jurisdiction of the court.
Petitioners position re: constitutionality of Sec. 13: The power of suspension, which is an
incident of the power of removal, is basically administrative and executive in nature. The
power of removal vested in the court under Section 9 of RA 3019 is an incident of conviction,
that is, it can only be exercised after a conviction has been handed down. Hence, since the
power to suspend is merely incidental to the power of removal, the former can only be
exercised as an incident to conviction. Also, considering that Section 13 authorizes the court
to exercise the power of suspension even prior to conviction of the accused, it cannot be
considered as an exercise of judicial power because it is not within the ambit of the court's
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 115

power of removal. In addition, he avers that Sec. 13 is arbitrary and discriminatory because it
serves no purpose at all, in that it does not require a proceeding to determine if there is
sufficient ground to suspend, except for the fact that it is required by law.
Court's power of suspension under Section 13 as discussed in Luciano v Mariano: Suspension
is not automatic, but who should exercise the mandatory act of suspension under Section 13?
Suspensions by virtue of criminal proceedings are separate and distinct from suspensions in
administrative cases. An accurate reading of Section 13 yields two methods of investigation,
one separate from the other: one criminal before the courts of justice, and the other
administrative. This is the plain import of the last sentence of Section 13, which says that if
acquitted, defendant in an Anti-Graft and Corrupt Practices case shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension,
unless in the meantime administrative proceedings have been filed against him. Our
interpretation but preserves, as it should, the substantial symmetry between the first part of
Section 13 and the last part thereof just quoted. There is in this legal provision a recognition
that once a case is filed in court, all other acts connected with the discharge of court functions
which here include suspension should be left to the court.
Since removal from office then is within the power of the court, no amount of judicial
legerdemain would deprive the court of the power to suspend. Reason for this is that
suspension necessarily is included in the greater power of removal. It is without doubt that
Congress has power to authorize courts to suspend public officers pending court proceedings
for removal and that the congressional grant is not violative of the separation of powers.
Congress did really apprehend danger should the power of suspension in consequence of a
criminal case under RA 3019 be lodged in any authority other than the court. Quite apart from
the fact that the court has a better grasp of the situation, there is one other factor, and that
is, the rights of the person accused. The court could very well serve as a lever to balance in
one equation the public interests involved and the interests of the defendant. And then, there
is the danger that partisan politics may creep in.

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 116 Ma. Jessa M. Alvarez
LAYUS V. SANDIGANBAYAN | Davide, 1999
FACTS
Celia T. Layus, the elected Mayor of the Municipality of Claveria, Province of Cagayan, was
charged with estafa through falsification of public documents before public respondent
Sandiganbayan.
The Information stemmed from a complaint for estafa through falsification of public
documents and for violation of Section 3(e) and (h), and Section 4 of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, filed against LAYUS and Pedro V.
Layus, Henjie C. Layus and Arnold V. Layus. After preliminary investigation, Graft Investigation
Officer II Jose D. Carlos of the Office of the Deputy Ombudsman for Luzon, in a Joint
Resolution dated 21 November 1996, recommended the filing of an information against
LAYUS for the first charge and the dismissal of the charges against all of the original
respondents for the second. The resolution had the concurrence of Director Ernesto Nocos
and was approved by the Ombudsman.
A warrant of arrest was served on LAYUS. She filed a cash bond for her temporary liberty. She
also filed a motion to lift the travel ban imposed on her, considering that she was scheduled
to leave the country.
The motion to lift the travel ban was set for hearing on 18 April 1997. On that date, however,
the Sandiganbayan required her to enter a plea before lifting the travel restriction. On
account of her impending trip, she acceded and entered a plea of not guilty on condition that
her plea not be deemed to be a waiver of her right to file a motion for reinvestigation and a
motion to quash the information. She claimed that the Sandiganbayan recognized such right
until the Ombudsman resolved her pending motion.
On the first day set by the Sandiganbayan for the trial of the case, LAYUS informed the court
of the prior filing of her motion for reinvestigation which was allegedly sent by registered
mail, but the Sandiganbayan had not received any copy of it.
LAYUS filed a motion to quash the Information. In the meantime, with appropriate leave,
LAYUS served and filed an Omnibus Motion reiterating her right to reinvestigation. This was,
however, denied by the Sandiganbayan. LAYUS motion to reconsider the denial likewise
failed.
Sandiganbayan denied LAYUS motion to quash and ruled that the alleged irregularities in the
preliminary investigation were not proper grounds for quashing the Information.
the prosecution filed with the Sandiganbayan a Motion to Suspend Accused Pendente Lite,
which LAYUS opposed. The resolution of said motion was held in abeyance in light of the May
1998 elections and the prohibition under Section 261 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code. Sandiganbayan eventually granted the motion to
suspend LAYUS.
LAYUS filed the instant petition.
ISSUE
(1) WON SB has jurisdiction over mayor of 5th class municipality.
(2) WON SB correctly denied her motion for reinvestigation in view of regular COA report.
(3) WON Layug was validly suspended.
HELD/RATIO
(1) YES. Rodrigo v. Sandiganbayan doctrine on actual salary received is not controlling.
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The contention that a prior COA Report is necessary to determine Layus culpability is without
merit. Under RA 6770, the Ombudsman has the power to investigate and prosecute
individuals on matters and complaints referred to or filed before it. Such power is plenary.
A COA approval of a government official's disbursement only relates to the administrative
aspect of his accountability, but it does not foreclose the Ombudsman's authority to
investigate and determine whether there is a crime to be prosecuted for which such official
may be answerable. For, while the COA may regard a government official to have
substantially complied with it's accounting rules, this fact is not sufficient to dismiss the
criminal case.
Sec. 13 of RA 2019 makes it mandatory for the Sandiganbayan to suspend any public officer
who has been validly charged with a violation of RA 3019, as amended, or Book II, Title 7 of
the Revised Penal Code, or any offense involving fraud upon government or public funds or
property. This is based on the presumption that unless the public officer is suspended, he may
frustrate his prosecution OR commit further acts of malfeasance OR both.
(2) YES. The imposition of the suspension, however, is not automatic or self-operative. There
must first be a valid information, determined at a pre-suspension hearing, where the court is
furnished with the basis to suspend the accused and proceed with the trial on the merits of
the case, or refuse suspension of the latter and dismiss the case, or correct any part of the
proceedings which impairs its validity.
(3) YES. In the instant case, the records show that Layus was given adequate opportunity to
challenge the validity of the criminal proceedings against her. Since the required pre-
suspension hearing was complied with and the information was deemed valid, it then
becomes the ministerial duty of the Sandiganbayan to forthwith issue the order of preventive
suspension which, however, may not be for an indefinite duration or an unreasonable length
of time. Thus, in Segovia v. Sandiganbayan, we ruled that preventive suspension may not
exceed 90 days in consonance with PD 807 (the Civil Service Decree), now Section 52 of the
Admin Code of 1987.
CASTRO V. GLORIA | Sandoval-Guttierez, 2001
FACTS
Porfirio Gutang, Jr. filed with DECS a complaint for disgraceful and immoral conduct against
petitioner Gualberto Castro, a teacher in Guibuangan Central School, Barili, Cebu. It was
alleged that he has an illicit affair with Gutangs wife, petitioners co-teacher at the same
school.
DECS Regional Office VII, through Assistant Superintendent Francisco B. Concillo, rendered a
decision declaring petitioner guilty of the offense charged. He was meted the penalty of
dismissal from the service. DECS Central Office affirmed Concillos decision.
petitioner filed a motion for reconsideration. Instead of resolving the motion, the DECS
Central Office directed the School Division of Cebu to comment on the motion. The School
Division Superintendent recommended that the motion be resolved favorably. However, the
recommendation was opposed by the DECS Region VII.
petitioner filed with the DECS Central Office a "Motion for Review Setting Aside/Modifying
the Decision of Regional Director of DECS Region VII. DECS Secretary Ricardo Gloria
(respondent) referred the motion to the Regional Director of Region VII for comment.
Regional Director Eladio C. Dioko issued a 2nd Indorsement sustaining the decision of
Assistant Superintendent Concillo. respondent Secretary denied petitioner s motion for
review.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
petitioner filed a petition for mandamus with the RTC imploring that judgment be rendered
ordering respondent Secretary or anyone who may have assumed the duties and functions of
his office (1) to reduce his penalty from dismissal to one (1) year suspension; 2) to consider
the one (1) year suspension as already served considering that he has been out of the service
for more than ten (10) years; 3) to reinstate him to his former position; and 4) to pay is back
salaries. The trial court rendered the herein assailed decision dismissing the petition on the
ground of non-exhaustion of administrative remedies. It ruled that petitioner should have
appealed to the Civil Service Commission before coming to court.
ISSUE
WON mandamus lies to compel reduction of penalty from dismissal to 1 year.
HELD/RATIO
YES. A petition for mandamus is premature if there are administrative remedies available to
petitioner. But where the case involves only legal questions, the litigant need not exhaust all
administrative remedies before such judicial relief can be sought.
The resolution of this case hinges on whether or not the following is a question of law or a
question of fact Is dismissal from the service the proper penalty for the 1st offense of
disgraceful and immoral conduct?
Petitioner no longer disputes the administrative finding of his guilt for the offense of
disgraceful and immoral conduct. What petitioner only impugns is the correctness of the
penalty of dismissal from the service. He is convinced that the proper penalty for the first
offense of disgraceful and immoral conduct is only suspension from the service. Undoubtedly,
the issue here is a pure question of law. We need only to look at the applicable law or rule
and we will be able to determine whether the penalty of dismissal is in order.
Section 23, Rule XIV of the Rules Implementing Book V of Executive Order No. 292:
Administrative offenses with its corresponding penalties are classified into grave, less grave,
and light depending on the gravity of its nature and effects of said acts on the government
service. The following are grave offenses with its corresponding penalties: X X X (o)
Disgraceful and immoral conduct <1st Offense, Suspension for 6 months and 1 day to 1 year;
2nd Offense, Dismissal.>
Anent petitioner's prayer for the payment of back salaries -> without legal basis.
Such payment of salaries corresponding to the period when an employee is not allowed to
work may be decreed if he is found innocent of the charges. However, if the employee is not
completely exonerated of the charges such as when the penalty of dismissal is reduced to
mere suspension, he would not be entitled to the payment of his back salaries.
The general proposition is that a public official is not entitled to any compensation if he has
not rendered any service. As he works, he shall earn. Since petitioner did not work during the
period for which he is now claiming salaries, there can be no legal or equitable basis to order
the payment of such salaries.
CANIETE V. SECRETARY OF EDUCATION | Kapunan, 2000
FACTS
Herman Caniete and Wilfredo Rosario are public school teachers at the Juan Sumulong High
School in Quezon City. For being absent on 20 and 21 September 1990, they were charged by
Secretary Isidro Cario, then Secretary of the Department of Education, Culture and Sports,
with alleged participation in the mass actions/strikes on said dates. Petitioners were placed
under preventive suspension.
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October 6, 2011 117
Secretary Cario found petitioners "guilty as charged" and dismissed them from the service
"effective immediately." The said decisions of Secretary Cario, however, were set aside by
the Merit Systems Protection Board (MSPB) when the case was brought to it on appeal. The
MSPB found that petitioners were guilty only of Gross Violation of Existing Civil Service Law
and Rules and suspended them for three (3) months without pay.
(CSC) modified the decision of the MSPB. The CSC found that petitioners were only guilty of
being absent on 20 and 21 September 1990 without the necessary leave of absence, and not
as charged by Secretary Cario of participating in the mass actions/strikes on said dates.
Accordingly, petitioners were meted out the penalty of reprimand.
Petitioners moved for a reconsideration of the CSC resolution insofar as it disallowed the
payment of their back salaries. The CSC denied their motion for reconsideration. Petitioners
then elevated the case to the CA but the latter affirmed the decision of the CSC.
Petitioners filed a motion for reconsideration but the CA denied the same.
ISSUE
WON petitioners, who were earlier dismissed for allegedly participating in mass actions/strikes, are
entitled to their back salaries upon their reinstatement after they were found guilty only of
violating reasonable office rules and regulations and penalized only with reprimand.
HELD/RATIO
YES. Employees who are preventively suspended pending investigation are NOT entitled to the
payment of their salaries even if they are exonerated, BUT they become entitled to compensation
for the period of their suspension pending appeal if eventually they are found innocent.
Book V, Title I, Subtitle A of the Administrative Code) on preventive suspension: SEC. 47.
Disciplinary Jurisdiction. (2) 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
decisions 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 head is appealable to the Commission, the same may be initially appealed to
the department and finally to the Commission and pending appeal, 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.
(4) An appeal shall not stop the decision from being executory, and in case the penalty is
suspension or removal, the respondent shall be considered as having been under preventive
suspension during the pendency of the appeal in the event he wins an appeal. SEC 51. Preventive
Suspension.- The proper disciplining authority may preventively suspend any subordinate officer or
employee under his authority pending an investigation, if the charge against such officer or
employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of
duty, or if there are reasons to believe that the respondent is guilty of charges which would
warrant his removal from the service.
SEC. 52. Lifting of Preventive Suspension Pending Administrative Investigation.- When the
administrative case against the officer or employee under preventive suspension is not finally
decided by the disciplining authority within the period of ninety (90) days after the date of
suspension of the respondent who is not a presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That when the delay in the disposition of the case
is due to the fault, negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.
PROF. GISELLA N. DIZON-REYES
 118 Ma. Jessa M. Alvarez
Two kinds of preventive suspension of civil service employees who are charged with offenses
punishable by removal or suspension: (1) preventive suspension pending investigation (51)
and (2) preventive suspension pending appeal if the penalty imposed by the disciplining
authority is suspension or dismissal and, after review, the respondent is exonerated (47[4])
Citing Gloria: The employee who is placed under preventive suspension pending investigation
is not entitled to compensation because such suspension is not a penalty but only a means of
enabling the disciplining authority to conduct an unhampered investigation. Upon the other
hand, there is right to compensation for preventive suspension pending appeal if the
employee is eventually exonerated. This is because "preventive suspension pending appeal is
actually punitive although it is in effect subsequently considered illegal if respondent is
exonerated and the administrative decision finding him guilty is reversed. Hence, he should
be reinstated with full pay for the period of the suspension.
NALUPTA JR. V. TAPEC | Nocon, 1993
FACTS
Mariano R. Nalupta, Jr. accuses respondent Honesto G. Tapec, Deputy Sheriff of the Regional
trial Court, Branch 18, Batac, Ilocos Norte of immorality by cohabiting with his paramour
Consolacion Inocencio, with whom he had two children, and of discharging the duties of
Barangay Captain of Masintoc, Paoay, Ilocos Norte despite holding his present position.
Nalupta filed with OCA a sworn complaint.
An additional information was furnished by Hon. Ariston L. Rubio, Executive Judge and
Presiding Judge of RTC, Branch 17, Batac, Ilocos Norte, saying that he has already
recommended the dismissal of Honesto Tapec for absence without official leave but as of this
time, it has not been acted upon by the Supreme Court.
Thereafter, Judge Agnir submitted his report 2 finding respondent guilty of the charge of
immorality and recommending the imposition of an appropriate penalty.
We find Judge Agnir's report to be well supported by the evidence.
Complainant had sufficiently established the charge of immorality against respondent. Noel
Rosario, a neighbor of respondent's paramour Consolacion Inocencio at Barangay Ablan,
Batac, Ilocos Norte, testified that he had often seen respondent leaving the house of
Inocencio in the morning and returning to the same in the afternoon, and that this had gone
on for quite some time. Moreover, it was well-known in the neighborhood that respondent
was married and that Inocencio was merely his paramour.
Similarly established is the fact that the illicit union of respondent and Inocencio had
produced two children, Marc Henry Tapec and Joseph Marlou I. Tapec, as shown by the
certified true copies of the children's respective birth certificates. The authenticity of these
birth certificates was later verified by Judge Agnir's Branch Clerk of Court.
ISSUE
WON illicit relationship of a public officer subjects him to disciplinary action.
HELD/RATIO
YES. Complainant had sufficiently established the charge of immorality against respondent.
The act of respondent of having illicit relations with Consolacion Inocencio is considered
disgraceful and immoral conduct within the purview of Section 36 (b)(5) of PD 807, for which
respondent may be subjected to disciplinary action.
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2003-29275 October 6, 2011
Memorandum Circular No. 30, Series of 1989 of the CSC has categorized disgraceful and
immoral conduct as a grave offense for which a penalty of suspension for 6 months and 1 day
shall be imposed for the 1st offense, while dismissal is imposed for the 2nd offense.
Inasmuch as the present charge of immorality against respondent constitutes the first charge
of this nature, the Court shall at this instance suspend respondent for 6 months and 1 day.
While it is true that during the investigation of this case, respondent has absented himself
without official leave, the recommendation of his immediate superior, Judge Ariston L. Rubio,
for his dismissal on this ground has yet to be received by this Court. The Court hereby
reserves the right to impose the appropriate penalty upon respondent for this new offense at
the proper time.
OCA V. LIBRADO | Per Curiam, 1996
FACTS
Vicente P. Librado is deputy sheriff of the Municipal Trial Court in Cities (MTCC), Branch 1, in
Iligan City. He was charged with violation of R.A. No. 6425 in an information filed with the
Regional Trial Court of Lanao Del Norte, Branch 5, for selling and having in his possession
certain quantities of prohibited drugs know as metamphetamine hydrochloride or "shabu"
and marijuana. He was subsequently found guilty and sentenced to six (6) years of
imprisonment.
Office of the Court Administrator filed this administrative complaint against him and on
November 23, 1994, he was suspended from office.
Respondent admits that he had been convicted of violation of R.A. No. 6425 and claims that
he is now on probation.
Based on the foregoing facts, Judge Valerio M. Salazar, Executive Judge of RTC-Iligan City, to
whom this case was referred for investigation, report and recommendation, recommends
that in view of respondent's probation, a penalty short of dismissal be meted out against
respondent " to provide him with the incentive and the will to rehabilitate himself and apply
his time to his work as a judicial employee.
ISSUE
WON a judicial employee under probation for a crime involving moral turpitude may be readmitted
to public service.
HELD/RATIO
NO. This case involves a conviction of a crime involving moral turpitude as a ground for disciplinary
action under the Civil Service Law. Under the rules of the CSC, conviction of a crime involving moral
turpitude is considered a grave offense punishable, upon first commission, by dismissal. As this
Court has held, it alone suffices as a ground for the dismissal of a civil service employee.
There is no doubt that drug-pushing is a crime which involves moral turpitude and implies
everything which is done contrary to justice, honesty, modesty or good morals including
acts of baseness, vileness, or depravity in the private and social duties which a man owes to
his fellowmen or to society in general, contrary to the accepted rule of right and duty
between man and man. Indeed nothing is more depraved than for anyone to be a merchant
of death by selling prohibited drugs.
The image of the judiciary is tarnished by conduct, which involves moral turpitude. While
indeed the purpose of the Probation Law is to save valuable human material, it must not be
forgotten that unlike pardon probation does not obliterate the crime of which the person
under probation has been convicted. The reform and rehabilitation of the probationer cannot
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
justify his retention in the government service. He may seek to reenter government service,
but only after he has shown that he is fit to serve once again. It cannot be repeated too often
that a public office is a public trust, which demands of those in its service the highest degree
of morality.
OCA V. JUDGE VENERACION | Pardo, 2000
FACTS
Merlinia C. Santos filed with the Court Administrator, a sworn letter-complaint against Rogelio
A. Tria, "Acting Sheriff IV, Branch 47,Regional Trial Court, Manila," assailing the acts of
"Sheriff" Tria in the implementation of a writ of execution in a civil case for support. Court
Administrator Alfredo L. Benipayo ordered an investigation of the status of "sheriff" Tria of
RTC, Manila, Branch 47. The investigation revealed that "sheriff" Tria was not an employee of
the judiciary at the time he acted as "sheriff" in the Civil Case. The record showed that Mr.
Rogelio A. Tria was appointed process server of the Regional Trial Court, Branch 47, Manila.
However, he transferred to the Economic Intelligence and Investigation Bureau (EIIB),
Department of Finance, as an Intelligence Officer. He was not thereafter re-employed in the
judiciary.
The investigation further disclosed that in 1985, Mr. Antonio Velasco was the duly appointed
Deputy Sheriff IV of the Regional Trial Court, Branch 47, Manila. Subsequently, however,
Judge Veneracion assigned Deputy Sheriff IV Antonio Velasco to the Office of the Clerk of
Court in order that Rogelio A. Tria, who was not an employee of the judiciary, could be
designated to perform the functions of "Acting Deputy Sheriff IV" considering the position
vacant and authorized to carry out the writ of execution. The Court Administrator concluded
that Judge Veneracion and Branch Clerk of Court Rogelio M. Linatoc had knowledge of the
irregularity.
Court Administrator Benipayo recommended that the memorandum report be considered as
an administrative complaint against Judge Lorenzo B. Veneracion for grave misconduct and
violation of Canon 3, Rule 3.08 of the Canons of Judicial Ethics and against Atty. Rogelio M.
Linatoc for grave misconduct. Court adopted a resolution considering the memorandum as an
administrative complaint against Judge Veneracion and Atty. Linatoc, and directing them to
file their respective answers thereto within ten (10) days from notice.
Court referred the case to Court of Appeals Justice Remedios A. Salazar-Fernando for
investigation, report and recommendation.
Justice Fernando submitted her final report and recommendation, that respondents, Judge
Lorenzo Veneracion and Branch Clerk of Court Atty. Rogelio Linatoc be dismissed from the
service with forfeiture of all benefits and with prejudice to re-employment with any other
branch, instrumentality or agency of the government, including government-owned and
controlled corporations.
ISSUE
WON an employee of EIIB, an agency under the Department of Finance, of the executive branch of
the government, may be assigned by that agency on detail with the judiciary, specifically to the RTC
as deputy sheriff, upon the request of the presiding judge of the court without the authority of the
SC.
HELD/RATIO
NO. Judge Veneracions repeated requests for Tria's detail with the RTC as Acting Deputy Sheriff IV,
a position that was not vacant,
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2003-29275 October 6, 2011 119
contravened Article VIII, Section 5 (6) of the Constitution, SC Administrative Circular No. 07 (re:
appointments to vacant positions in the judiciary), and Supreme Court Administrative Circular No.
12 addressed to all judges and clerks of court of the RTC, prescribing guidelines and procedure in
the service and execution of court writs and processes.
Administrative Circular No. 12 provides that "in the absence of deputy sheriff appointed and
assigned in his sala" the judge may at any time designate any of the deputy sheriffs in the
office of the clerk of court. However, the judge shall not be allowed to designate the deputy
sheriff of another branch without first securing the consent of the presiding judge thereof.
Judge Veneracion failed to observe the Constitutional and regulatory prescriptions. Judge
Veneracion had no power to assign on temporary detail his duly appointed sheriff to the
office of the clerk of court. The authority to detail employees of his branch to the office of the
clerk of court is vested in the executive judge. Hence, there was no vacancy even temporarily
in the office of branch sheriff of Branch 47, and the judge can not appoint or designate any
person of his choice to act as sheriff. His action showed persistent disregard of the rule in the
designation of acting sheriffs. This act constitutes usurpation of the appointing authority of
the SC amounting to grave misconduct in office.
What is required of judges is objectivity. An independent judiciary does not mean that judges
can innovate at pleasure, roaming at will in pursuit of their own ideals of beauty or of
goodness. They are bound by limitations on their authority, by substantive and procedural
rules of law, more importantly by Constitutional precepts and the recognition of their places
in the hierarchy of courts.
Judge Veneracions outright disregard of the well-established separation of powers of the
three great departments of government and his exercise of powers beyond his judicial
competence and in defiance of directives of the Supreme Court undermined the
independence of the judiciary.
PROPRIETY OF THE PENALTIES:
Judge Veneracion: tempers the severity of the recommended dismissal of respondent judge
considering his long service in the government and the judiciary and his obedience to the
order of the Court Administrator directing him to terminate the questioned designation of
sheriff Tria, thus, evincing remorse and repentance for his unauthorized acts.
Atty. Linatoc: Dismissal from the service as too harsh a penalty. His fault was in following
blindly the orders of the respondent judge, even though these violated the Constitution and
circulars of the Supreme Court.
RTC MAKATI MOVEMENT AGAINST GRAFT AND CORRUPTOIN V. DUMLAO | Kapunan, 1995
FACTS
Atty. Inocencio E. Dumlao, then Branch Clerk of Court of the Regional Trial Court of Makati,
Branch 134, was charged by the RTC Makati Movement against Graft & Corruption for
allegedly engaging in usurious activities, immorality and violation of the Anti-Graft & Corrupt
Practices Act (R.A. 3019, as amended). The complaint alleged that Respondent withheld the
salary checks of all RTC Makati employees to compel them to borrow money from him at
usurious rates, as evidenced by Trust Agreements. The amounts loaned are collected through
his alleged paramour, Ms. Piedad Rufo (now Piedad R. Cruz), a clerk employed at the Cash
Section of the Office of the Clerk of Court, RTC Makati. Respondent was also charged with
allegedly demanding money from party litigants and lawyers in exchange for favorable action
on their cases.
Office of the Chief Justice received another letter-complaint against Respondent signed by
Susan B. Quinto for: 1) Corruption and dereliction of duty for exacting money from court
PROF. GISELLA N. DIZON-REYES
 120 Ma. Jessa M. Alvarez
litigants in the pretext that the amounts exacted are his commissioner's fees, yet, he does not
prepare his reports. 2) For operating a lending agency, with the use of the facilities of the
court and for exacting from court employees usurious interest. 3) For criminal negligence in
the performance of his duties as Branch Clerk of Court of RTC, Branch 234, Makati, Metro
Manila.
cases were consolidated and referred to Executive Judge Salvador Abad Santos of the RTC,
Makati, Metro Manila, for investigation, report and recommendation.
Executive Judge Abad Santos recommended the dismissal of Respondent from service on
grounds of grave misconduct and dishonesty prejudicial to the best interest of the service and
acts unbecoming a court officer.
ISSUE
WON Dumlaos acts warrant his dismissal.
HELD/RATIO
YES. Public service requires utmost integrity and strictest discipline. A public servant must exhibit at
all times the highest sense of honesty and integrity. The administration of justice is a sacred task.
By the very nature of their duties and responsibilities, all those involved in it must faithfully adhere
to, hold inviolate, and invigorate the principle solemnly enshrined in the 1987 Constitution that a
public office is a public trust; and all public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. The conduct
and behavior of everyone connected with an office charged with the dispensation of justice, from
the presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of
responsibility. Their conduct, at all times, must not only be characterized by propriety and decorum
but, above all else, must be above suspicion. Indeed, every employee of the judiciary should be an
example of integrity, uprightness and honesty.
The particular public officer concerned is a Branch Clerk of a court of justice who is described
as an essential officer in any judicial system, whose office is the hub of activities, both
adjudicative and administrative and who occupy a position of great importance and
responsibility in the framework of judicial administration. Clerks of Court are, thus, required
to be individuals of competence, honesty and probity specifically mandated to safeguard the
integrity of the court and its proceedings, to earn respect therefor, to maintain loyalty thereto
and to the judge as the superior officer, to maintain the authenticity and correctness of court
records and to uphold the confidence of the public in the administration of justice.
Respondent's ignorance of the existence and contents of the Manual for Clerks of Court
clearly demonstrates how grossly remiss he has been in the performance of his duties as
Branch Clerk of Court of Branch 134 RTC-Makati. He cannot rely on his thirteen (13) years of
experience alone, vast though it may seem, because the law is constantly evolving. As a court
officer, he should keep abreast of the various changes and amendments of the law.
The documentary exhibits presented by Complainant leave no doubt as to the existence of
Respondent's lending operation, some of which even led to the filing (by Respondent) of
criminal charges against borrowers who failed to pay their loans under the so-called trust
agreements. Such despicable acts cannot be tolerated by this Court. His reliance on CB
Circular No. 905 implementing MB Resolution No. 225 which effectively suspended the
provisions of the Usury Law is misplaced. Although he may not be criminally or civilly liable,
he is still administratively liable under the Civil Service Law where lending money at usurious
rates of interests is specifically listed as grounds for disciplinary action. Courts are not lending
institutions. By engaging in lending activities, Dumlao has caused dishonor to courts of justice.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
NIEVA V. ALVAREZ-EDAD | Sandoval-Guttierez, 2005
FACTS
This is an administrative complaint filed by Maritoni M. Nieva, former legal researcher of the
Metropolitan Trial Court (MeTC), Branch 32, Quezon City, charging Saturnina Alvarez-Edad,
Branch Clerk of Court, also of the same Branch, with the following administrative offenses:
1) Falsification of daily time records; 2) Dishonesty; 3) Demanding or receiving commissioners
fee for reception of evidence ex-parte; 4) Conduct prejudicial to the best interest of the
service; 5) Issuing certified true copies of warrant of arrest without payment of the
corresponding fees; and 6) Discourtesy in the conduct of official business.
We issued a Resolution referring the case to the Executive Judge, MeTC, Quezon City, for
investigation, report, and recommendation. Executive Judge Gregorio D. Dayrit exonerated
respondent from all the charges, except for dishonesty.
Investigating Judge Dayrit found that respondent demanded from the representative of
Unifunds P1,500.00 as commissioners fee and received P500.00 in the guise of payment for
stenographic notes. She kept P300.00 for herself without the consent of Judith Cueto, a
stenographer. Judge Dayrit then recommended that respondent be found guilty of two (2)
counts of dishonesty and be suspended from the service for one (1) year without pay and be
disqualified for promotion or from receiving any increase in salary during the pendency of the
suspension.
We referred the Report of Executive Judge Dayrit to the Office of the Court Administrator
(OCA) for evaluation, report and recommendation.
Deputy Court Administrator (DCA) Christopher O. Lock submitted to this Court his Evaluation
and Recommendation:
Xxx the facts do not warrant respondents dismissal from the service considering that out of
the seven (7) charges, complainant was able to prove only one (1) of the charges.
Xxx The recommended penalty of the investigating judge which is suspension from the
service for one (1) year without pay and be disqualified for promotion or any increase in
salary during the period she is under suspension, is too stiff to the administrative offense
committed by the respondent. Records in the Docket & Clearance Division, Legal Office, OCA
show that this is the first time that respondent was administratively charged after serving the
judiciary for ten (10) years.
Xxx Thus, this Office believes that a lesser penalty, which is commensurate under the
circumstances of this case, should be imposed upon the respondent.
Xxx this Office recommends that a FINE be imposed upon the respondent in the sum of One
Thousand Pesos (P1,000.00) and that she is SEVERELY REPRIMANDED with WARNING that a
repetition of a similar act shall be dealt with more severely. Respondent should also be
REMINDED to strictly follow Section 9, Rule 30, 1997 Rules of Civil Procedure and Supreme
Court Circular No. 50-2001 dated 17 August 2001, Section B, Chapter II (p. 36), Section D.7,
Chapter IV (p. 74) of the Manual for Clerks of Court to avoid similar violations.
ISSUE
WON Edad deserves the penalty.
HELD/RATIO
NO. Court adopted the evaluation and recommendation of Deputy Court Administrator: Records
show that complainant failed to prove by substantial evidence to hold respondent administratively
liable. As found by the investigating judge, the other charges were not proven.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Respondent did not commit dishonesty when she demanded commissioners fee from the
Unifunds. As shown by the evidence established by the complainant, it shows that
respondent is actually guilty of Violation of the Manual for Clerks of Court, specifically under
the following provisions: (a) Section B, Chapter II (p. 36), which states that: No Branch Clerk
of Court shall demand and/or receive commissioners fees for reception of evidence ex-parte;'
and (b) Section D.7, Chapter IV(p. 74), which states that: The Court shall allow the
commissioner, other than an employee of the Court, such reasonable compensation as the
circumstances of the case warrant to be taxed as costs against the defeated party, or
apportioned, as justice requires. Clearly, the intent or motive to gain out of Cuetos
collectibles for the payment of TSN is totally absent. In fact, it was established during the
investigation that respondent collected the sum of P500.00 in the presence of the other staff
and especially Court Stenographer Judith Cueto. The latter, upon receipt of the P200.00
pesos, did not object or complain. Presumably, respondent and Court Stenographer had a
previous understanding or some sort of an agreement to this kind of arrangement, which
they call it a package deal when conducting ex-parte hearing.
Citing RTC of Makati v Dumlao re prohibition on Clerk of Courts to collect compensation for
services rendered as commissioners in ex- parte proceedings: The Court shall allow the
commissioner, other than an employee of the court, such reasonable compensation as the
circumstances of the case warrant.
The administration of justice, by its very nature, is a sacred task, circumscribed with a heavy
burden of responsibility. All those involved in its dispensation from the presiding judge to
the lowliest clerk should live up to the strictest standards of competence, honesty and
integrity in the public service. Their conduct, at all times, must not only be
characterized by propriety and decorum but, above all else, must be above suspicion. No
other office in the government service exacts a greater demand for moral righteousness and
uprightness from an employee than in the Judiciary.
Clerks of court, like the respondent herein, are important officers in the judicial system. Their
administrative functions are vital to the prompt and sound administration of justice. They
cannot be allowed to overstep their powers and responsibilities. Their office is the hub of
adjudicative and administrative orders, processes and judicial concerns. They perform a very
delicate function as custodian of the courts funds, revenues, records, property and premises.
They are specifically imbued with the mandate to safeguard the integrity of the court as well
as the efficiency of its proceedings, and to uphold the confidence of the public in the
administration of justice. Thus, they are required to be persons of competence, honesty and
probity.
SANTOS V. MACARAIG | Grino-Aquino, 1992
FACTS
Rosalinda de Perio-Santos, a career service officer with the rank of Chief of Mission II and
Ambassador Extraordinary and Plenipotentiary, was appointed on July 24, 1986, by her
Excellency, President Corazon C. Aquino, to the position of Permanent Representative of the
Philippines to the Philippine Mission to the United Nations and other International
Organizations with station in Geneva, Switzerland.
petitioner sought a leave of absence from the Department of Foreign Affairs (DFA) to spend
the Easter Holidays in New York, U.S.A., with her mother, brothers and sisters at no expense
to the Government. She bought two (2) non-transferable, non-refundable discounted tickets
costing SFr. 1,597 for herself and her adopted daughter Pia.
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2003-29275 October 6, 2011 121
Before they could leave Geneva, petitioner received instructions from the home office
directing her to proceed to Havana as a member of the Philippine delegation to the UNCTAD
G-77 Preparatory Conference.
For the official trip outside her station, she was entitled, under the "Foreign Service Personnel
Manual on Travel, Per Diems, and Daily Allowance Abroad," for the cost of economy roundtrip
fare from Geneva-New York-Geneva portion of her Geneva-New York-Havana-New York-
Geneva trip.
Instead of buying an economy roundtrip ticket, she used for the Geneva-New York-Geneva
portion of her trip the two (2) discounted tickets costing only SFr. 1,597 for herself and her
daughter Pia. They left Geneva for New York en route to Havana on April 15, 1987. On the
same day, the DFA approved her application for a leave of absence with pay from April 27 to
May 1, 1987.
After the Havana Conference, she and her daughter spent her vacation leave in New York
before returning to Geneva.
Instead of claiming reimbursement for SFr. 2,996, she requested, and received,
reimbursement of only SFr. 1,597 which she spent for the Geneva to New York, and New York
to Geneva portion of her trip, thereby effecting savings of SFr. 1,399 for the Government.
DFA sent her a cable (GE-202/87) requesting clarification on "why Mission paid for plane
ticket of infant Pia de Perio-Santos (petitioner's daughter) Geneva-New York-Geneva per CV
216/87 when she was not authorized to accompany her adopting mother at government
expense."
Petitioner replied that the air fare tickets were for her only and did not include her daughter
whose trip was paid from her personal funds.
DFA required her to refund the amount representing her daughter's round-trip ticket.
Instead of refunding only the sum of Sfr. 673 to the Government, petitioner returned the full
amount of SFr. 1,597. She thereafter claimed payment for one round-trip economy plane
ticket (Geneva-New York-Geneva) in the amount of SFr. 2,996 to which she was entitled
under the Foreign Service Personnel Manual on Travel, Per Diems and Daily Allowance
Abroad.
Deputy Armando Maglaque, and some MISUNPHIL employees filed administrative charges
against her for "incompetence; inefficient; corrupt and dishonest activities; rude and uncouth
manners; abusive and high-handed behavior; irregular and highly illegal transactions involving
funds of the mission." The charges were referred to Ambassador Luis Ascalon for initial
investigation.
Ambassador Ascalon submitted his findings which, with the complaints, were referred to a 5-
man Ad Hoc Investigation Committee for preliminary investigation.
The Committee found a prima facie case against petitioner for (1) dishonesty; (2) violation of
existing rules and regulations; (3) incompetence and inefficiency; and (4) conduct prejudicial
to the best interest of the service. Ambassador Eduardo Rosal also charged her with estafa
before the Tanodbayan. The case was dismissed for insufficiency of evidence.
Board of Foreign Service Administration (BFSA) constituted a new 5-man investigating
committee to evaluate the evidence presented by the parties. Three (3) members of the
committee found her liable for misconduct only, and recommended dismissal of the other
charges. They also recommended that she be reprimanded and recalled to Manila.
Ambassador Arague dissented with respect to the penalty, which he thought should include a
six-month suspension. Atty. De Vera found all the charges against Ambassador de Perio-
Santos "to be unmeritorious."
PROF. GISELLA N. DIZON-REYES
 122 Ma. Jessa M. Alvarez
BFSA, through its Chairman, Undersecretary Jose D. Ingles, submitted a memorandum to the
Secretary of Foreign Affairs (SFA), adopting the findings and recommendations of the
investigating committee.
Secretary of Foreign Affairs affirmed the BFSA's recommendation declaring Ambassador de
Perio-Santos guilty of the lesser offense of misconduct, instead of dishonesty, meted to her
the penalty of reprimand, and recalled her to the home office.
Petitioner filed a motion for reconsideration on the ground that she was denied due process
when she was declared guilty of misconduct although it was not one of the charges against
her. Conceding that point, the Secretary ordered the records remanded to the BFSA for
hearing to give petitioner an opportunity to defend herself against the charge of misconduct
which was deemed to have been filed by the Secretary himself since an administrative
complaint can be initiated directly by the Department Head.
petitioner refused to attend the hearing. Consequently, Secretary Manglapus declared his
decision "final and executory, effective immediately."
Petitioner appealed that resolution to the Office of the President.
President Aquino nominated Narcisa L. Escaler as Ambassador and Permanent Representative
to the United Nations and other International Organizations in Geneva in lieu of the
petitioner. The nomination was confirmed by the Commission on Appointments.
President Aquino issued Administrative Order No. 122 finding petitioner guilty of dishonesty
(instead of misconduct) and imposed upon her the penalty of reprimand, with recall to the
home office.
Petitioner filed a motion for reconsideration. Executive Secretary Catalino Macaraig, Jr., by
authority of the President, denied the motion for reconsideration.
she filed this petition for certiorari alleging that the President's "reprimand and recall orders
are not supported by substantial evidence and were issued with gross abuse of discretion and
serious error of law"
ISSUE
Whether Santos was guilty of dishonesty or misconduct.
HELD/RATIO
NEITHER. A careful review of the records fails to yield any evidence of dishonesty on the part of the
petitioner, or an intent to cheat and defraud the government. Her failure to disclose the fact that
her discounted tickets included the fare for her child, was harmless and inconsequential as the 2
discounted Geneva-New York-Geneva tickets for herself and her daughter were in fact inseparable,
intransferable, non-cancellable and non-refundable, in effect one whole fare only, for purposes of
the discount. The mother and daughter tickets were, in the words of the petitioner, married to
each other. One without the other would not have been entitled to the discount. And if she left
her daughter behind, it would have made no difference in the fare because the ticket was not
refundable.
Using the discounted tickets was beneficial to the Government for they cost 50% less than an
economy roundtrip ticket that the petitioner was entitled to purchase for the same trip if she
travelled alone. She obviously saved money (SFr.1,399) for the government by using her
discounted tickets even if her daughter's fare was included therein.
Since petitioner was moved by the best of motives in using the discounted tickets which she
had purchased before she received the order to attend the UNCTAD conference in Havana,
her action should be commended instead of condemned.
Petitioner's problems probably would not have arisen if before embarking on the Havana trip
she had asked DFA for permission to use the 2 discounted round-trip tickets for the Geneva-
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NY-Geneva portion of her trip. Her inadvertence was construed by the Government as lack of
candor and honesty on her part. The Court believes however that she did not intend to falsify
or conceal the truth when she filed a claim for the refund of the total cost of her discounted
tickets (SFr.1,597). Her claim for the whole discounted fare was based on the fact that her
daughter's ticket was inseparable from her own fare. They had to go together to be entitled
to the special discount. Their fare was indivisible, hence, the Government's offer to shoulder
only the petitioner's portion of the discounted fare (SFr. 950), excluding her daughter's
portion (SFr. 647) was neither fair nor reasonable.
On appeal to the Office of the President, the latter ironically found her guilty of the more
serious offense of dishonesty, reprimanded her therefor, and recalled her to Manila. We hold
that under the circumstances above narrated, the petitioner's actuation constituted neither
dishonesty nor misconduct, hence, the reprimand that was meted to her was unmerited.
GARCIANO V. OYAO | Makasiar, 1981
FACTS
Wilfredo Oyao was originally Docket Clerk turned Clerk of Court of CFI Cebu. Garciano wanted
to collect the P300 due him.
Oyao initially signed a promissory note with special power of attorney authorizing respondent
to collect his first quincena salary until his indebtedness is fully paid but, instead, the Oyao
collected in advance his salary checks so Garciano was unable to collect a single check by way
of payment of the indebtedness.
Oyao employed all sorts of tactics and manipulations to evade payment of his obligations but
due to the persistent demands of Garciano, the sum of P268 was paid leaving a balance of
P300.00.
ISSUE
WON Oyao's act in wilfully refusing to settle his obligation is a violation of the Civil Service Rules
and Regulations which would subject him to punishment.
HELD/RATIO
YES. His alleged obvious financial set-backabout which no proof was submittedcannot justify
the unnecessary inconvenience he caused to the complainant. The indebtedness was incurred as
early as February, 1968. Oyao executed a promissory note in favor of the Garciano and also a
special power of attorney authorizing herein complainant to collect respondent's first quincena
salary until the indebtedness was fully paid. But Garciano could not collect the first 15-day salary of
respondent, for the latter always collected it ahead of complainant. Oyaos execution of the
aforesaid documents in favor of the complainant induced the latter to grant the said loan. Hence, it
is clearly unfair to the complainant as well as unethical for Oyao to welch on his promise.
Oyaos personal file betrayed him. He falsely averred that, being the sole bread winner of a
big family he cannot pay with his monthly salary of P273.00 Garciano in a lump sum the
remaining balance of P300.00. He has only one daughter and for seven years after he incurred
the indebtednesshe has been receiving a monthly salary of P435.16.
Avoid so far as reasonably possible a situation which would normally tend to arouse any
reasonable suspicion that he is utilizing his official position for personal gain or advantage to
the prejudice of party litigants or the public in general. There may be occasion then where the
needs of the collectivity that is the government may collide with his private interest as an
individual. His improper conduct unavoidably stains the image of the judiciary. Court
personnel must comply with just contractual obligation, act fairly and adhere to high ethical
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 123

standards to preserve the court's integrity. Although an ordinary court employee, should not,
like judges, incur obligations which will in any way interfere, directly or indirectly, with his
function as such. He should be scrupulously careful to avoid such action as may reasonably
tend to generate the suspicion that his relations with others constitute an element in the
determination of the course of action that the court to which he belongs, will take in a
pending case.
To emphasize the warning, Section I of the Anti-Graft and Corrupt Practices Act (RA 3019, as
amended by RA 3047) states: It is the policy of the Philippines (Government in line with the
principle that a public office is a public trust, to repress certain acts of public officers, and
private persons alike which constitute graft and corrupt practices or which may lead thereto.
Although the actuation of the respondent in the present case may not clearly fall under any of
the graft and corrupt practices defined by law, the impropriety of the same is evidently
unquestionable for it may lead to any of those prohibited acts.

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 124 Ma. Jessa M. Alvarez
PART II. ELECTION LAW
A. Suffrage
LACSON V POSADAS | Antonio, 1976
FACTS
Respondent Municipal Judge Ramon Posadas, of Talisay, Negros Occidental, is charged in a
verified complaint by Salvador Lacson, Jr. with (a) ignorance of the law, (b) partiality, and (c)
violation of the Election Code of 1971.
The Executive Judge, to whom this case was referred for investigation, report and
recommendation, found the charges of ignorance of the law and partiality to be without
factual basis but found that respondent Judge has failed to comply with the requirements of
Section 136 of the Election Code of 1971, which provides:
"Any person who has been refused registration or whose name has been stricken out
from the permanent list of voters may at any time except sixty (60) days before a regular
election or twenty-five (25) days before a special election, apply to the proper court for an
order directing the election registration board or the board of inspectors as the case may be,
to include or reinstate his name in the permanent list of voters, attaching to his application
for inclusion the certificate of the Election registration board or the board of inspectors
regarding his case and proof of service of a copy of his application and of the notice of hearing
thereof upon a member of the said board."
Respondent disregarded this requirement and none of the petitions for inclusion based on
lack of forms contains the attached certificate of the Chairman or any member of the Board of
Inspectors of the precinct concerned to the effect that petitioner or petitioners applied for
registration on October 9, 1971 but were refused registration for lack of registration forms.
The Investigating Judge found also that respondent, in his aforesaid actuations, did so without
improper motive but in good faith.
ISSUE
WON Judge erred in refusing the petition for inclusion?
HELD
YES [But he was relieved of any criminal liability for the infraction as PD 433 granted general
amnesty under certain conditions to public school teachers, other government officials and
employees, members of the armed forces of the Philippines and other persons for violation of
election laws and other related statutes in connection with the elections of 1965, 1967, 1969, 1971,
and the election of delegates to the Constitutional Convention.]
RATIO
In our republican system of government, the exercise by the people of their right of suffrage
is the expression of their sovereign will. It is, therefore, absolutely essential that the free and
voluntary use of this right be effectively protected by the law and by governmental authority.
Citing Abanil v. Justice of the Peace: The people in clothing a citizen with the elective
franchise for the purpose of securing a consistent and perpetual administration of the
government they ordain, charge him with the performance of a duty in the nature of a public
trust, and in that respect constitute him a representative of the whole people. This duty
requires that the privilege thus bestowed should be exercise, not exclusively for the benefit of
the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for
the general benefit and welfare of the state. (US v Cruikshank)
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In the last analysis, therefore, the inclusion in or exclusion from the permanent electoral list
of any voter concerns not only the voter in his individual capacity but the public in general. In
the light of the statutory purpose, the seriousness of respondent's failure to comply with the
requirements of Section 136 of the electoral law becomes evident. His good faith or lack of
malice is of no avail, considering that in crimes which are mala prohibita the act alone
irrespective of its motives, constitutes the offense.
PUGUTAN V. ABUBAKAR | Fernando, 1972
FACTS
Respondent Abubakar and the other candidates filed a petition alleging that in the towns of
Siasi, Tapul, Parang and Luuk, no elections were in effect held in view of massive violence,
terrorism and fraud.
The case was duly heard, with oral testimony from five chairmen of certain precincts in Tapul,
five teachers from Parang, five teachers from Luuk and three teachers from Siasi, followed by
an examination of the precinct book of voters from said towns and the fingerprints and
signatures of those who voted, as shown at the back of CE Form No. 1 and CE Form No. 39 for
the 1970 elections for the Constitutional Convention.
Commission came to this conclusion: "In the light of the foregoing findings of the Commission
with respect to the manner in which the elections were conducted in Siasi, Tapul, Parang and
Luuk, the Commission is of the opinion that Actually no elections were held in said
municipalities as the voting was done by persons other than the registered voters while
armed men went from precinct to precinct, prepared the ballots and dictated how the
election returns were to be prepared. and to consider said returns as no returns at all or
spurious or manufactured returns not one notch above returns prepared at gunpoint to find
that the returns from Siasi, Tapul, Parang and Luuk are spurious returns or manufactured
returns and no returns at all and that the elections in said municipalities are sham."
Comelec excluded from the canvass for the election of delegates for the lone district of the
province of Sulu the returns from 107 precincts of Siasi, 56 precincts of Tapul, 67 precinct of
Parang and 60 precincts of Luuk for being spurious of manufactured and therefore no
returns at all.
Unless set aside then, petitioner Abdulgafar Pugutan, who otherwise would have been
entitled to the last remaining seat for delegates to the Constitutional Convention, would lose
out to respondent Benjamin Abubakar.
Petitioner would thus dispute the power of respondent Commission to exclude such returns
as a result of oral testimony as well as the examination of the fingerprints and signatures of
those who allegedly voted as the basis for the holding that no election in fact did take place.
Petition for review was filed. Both respondent Commission on Elections and respondent
Abubakar duly filed their answers.
Pugutan represented by Attorney Jose W. Diokno. Respondent Abubakar, represented by
Attorney Jovito R. Salonga.
ISSUE
WON the recognition of such prerogative (to exclude certain returns) on the part of COMELEC
would contravene the constitutional provision that it cannot pass on the right to vote?
HELD
NO
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
RATIO
What is contemplated in the law is that the electors in the exercise of their free will can go to
the polls and exercise their right of suffrage, with the boards of inspectors crediting each
candidate with the votes duly obtained after an honest count. It is on that basis that election
returns are to be made. Where no such election was in fact held as was found by respondent
Commission with respect to the four towns, it is not only justified but it is its clear duty to
stigmatize the alleged returns as clearly spurious and manufactured and therefore bereft of
any value.
The COMELEC is a constitutional body. It is intended to play a distinct and important part in
our scheme of government. In the discharge of its functions, it should not be hampered with
restrictions that would be fully warranted in the case of a less responsible organization. The
Commission may err, so may this Court also. It should be allowed considerable latitude in
devising means and methods that will insure the accomplishment of the great objective for
which it was created -- free, orderly and honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute gross abuse of discretion,
this court should not interfere.
The right to vote has reference to a constitutional guarantee of the utmost significance. It is a
right without which the principle of sovereignty residing in the people becomes nugatory. In
the traditional terminology, it is a political right enabling every citizen to participate in the
process of government to assure that it derives its power from the consent of the governed.
What was so eloquently expressed by Justice Laurel comes to mind: "As long as popular
government is an end to be achieved and safeguarded, suffrage, whatever may be the
modality and form devised, must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so
far as it implies the adoption of a representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the
established authority.
How such a right is to be exercised is regulated by the Election Code. Its enforcement under
the Constitution is, as noted, vested in respondent Commission. Such a power, however, is
purely executive or administrative.
TAULE V. SANTOS | Gancayco, 1991
FACTS
Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven
(11) members, in their capacities as Presidents of the Association of Barangay Councils in their
respective municipalities, convened in Virac, Catanduanes with six members in attendance for
the purpose of holding the election of its officers.
When the group decided to hold the election despite the absence of five (5) of its members,
the Provincial Treasurer and the Provincial Election Supervisor walked out. The election
nevertheless proceeded. Chosen as members of the Board of Directors were Taule, Aquino,
Avila, Jacob and Sales.
Respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent Luis T.
Santos, the Secretary of Local Government, protesting the election of the officers of the FABC
and seeking its nullification in view of several flagrant irregularities in the manner it was
conducted.
Respondent Secretary issued a resolution nullifying the election of the officers of the FABC in
Catanduanes and ordering a new one to be conducted.
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Petitioner seeks the reversal of the resolutions of respondent Secretary
ISSUES
1. WON the Secretary of LocGov has jurisdiction to entertain an election protest involving the
election of the officers of the FABC?
2. WON the Governor has the legal personality to file an election protest?
3. Assuming that the Secretary has jurisdiction over the election protest, WON he committed grave
abuse of discretion amounting to lack of jurisdiction in nullifying the election?
HELD
1 and 3. NO, in assuming jurisdiction over the election protest filed by respondent Governor and
declaring the election of the officers of the FABC as null and void, the Secretary acted in excess of
his jurisdiction. Not having the jurisdiction to hear an election protest involving officers of the
FABC, the recourse of the parties is to the ordinary courts. RTC have the exclusive original
jurisdiction to hear the protest.
2. YES, governor has authority.
RATIO
Petitioner says: Neither the constitution nor the law grants jurisdiction upon the respondent
Secretary over election contests involving the election of officers of the FABC, the katipunan
ng mga barangay at the provincial level. Under Article IX, C, Section 2 of the 1987
Constitution, it is the COMELEC which has jurisdiction over all contests involving elective
barangay officials. Secretary of LocGov says: Any violation of the guidelines as set forth in said
circular would be a ground for filing a protest and would vest upon the Department
jurisdiction to resolve any protest that may be filed in relation thereto. SC says: The
jurisdiction of the COMELEC over contests involving elective barangay officials is limited to
appellate jurisdiction from decisions of the trial courts.
Under Article IX, C, Section 2(2) of the 1987 Constitution, the COMELEC shall exercise
"exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it
appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction or elective barangay officials decided by trial courts of limited
jurisdiction.
Sec. 2 (2), Art. XII-C, 1973 Constitution: The sworn petition contesting the election of a
barangay officer shall be filed with the proper MTC or MeTC by any candidate who has duly
filed a certificate of candidacy and has been voted for the same office within 10 days after the
proclamation of the results. A voter may also contest the election of any barangay officer on
the ground of ineligibility or of disloyalty to the Republic by filing a sworn petition for quo
warranto with the MTC or MeTC within 10 days after the proclamation of the results of the
election. Only appeals from decisions of inferior courts on election matters as aforestated
may be decided by the COMELEC.
Court agrees with the SolGen that the jurisdiction of the COMELEC is over POPULAR
ELECTIONS, the elected officials of which are determined through the will of the electorate.
An election is the embodiment of the popular will, the expression of the sovereign power of
PROF. GISELLA N. DIZON-REYES
 126 Ma. Jessa M. Alvarez
the people. It involves the choice or selection of candidates to public office by popular vote.
Specifically, the term "election," in the context of the Constitution, may refer to the conduct
of the polls, including the listing of voters, the holding of the electoral campaign, and the
casting and counting of the votes which DO NOT CHARACTERIZE the election of officers in the
Katipunan ng mga barangay.
Election contests would refer to adversary proceedings by which matters involving the title
or claim of title to an elective office, made before or after proclamation of the winner, is
settled whether or not the contestant is claiming the office in dispute and in the case of
elections of barangay officials, it is restricted to proceedings after the proclamation of the
winners as no pre-proclamation controversies are allowed.
The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the
katipunan ng mga barangay composed of popularly elected punong barangays as prescribed
by law whose officers are voted upon by their respective members. The COMELEC exercises
only appellate jurisdiction over election contests involving elective barangay officials decided
by the MeTC/MTC which likewise have limited jurisdiction. The authority of the COMELEC
over the katipunan ng mga barangay is limited by law to supervision of the election of the
representative of the katipunan concerned to the sanggunian in a particular level conducted
by their own respective organization. However, the Secretary of LocGov is NOT vested with
jurisdiction to entertain any protest involving the election of officers of the FABC.
There is neither a statutory nor constitutional provision expressly or even by necessary
implication conferring upon the Secretary of LocGov the power to assume jurisdiction over an
election protect involving officers of the katipunan ng mga barangay.
Although the Department is given the power to prescribe rules, regulations and other
issuances, the Administrative Code limits its authority to merely "monitoring compliance" by
local government units of such issuances. To monitor means "to watch, observe or check. This
is compatible with the power of supervision of the Secretary over local governments which as
earlier discussed is limited to checking whether the local government unit concerned or the
officers thereof perform their duties as provided by statutory enactments. Even the Local
Government Code which grants the Secretary power to issue implementing circulars, rules
and regulations is silent as to how these issuances should be enforced. Since the respondent
Secretary exercises only supervision and not control over local governments, it is truly
doubtful if he could enforce compliance with the DLG Circular.
The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that
"whenever the guidelines are not substantially complied with, the election shall be declared
null and void by the DLG and an election shall conduct and being invoked by the SolGen
cannot be applied. Such provision is null and void for having been issued in excess of the
Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction
upon itself.
Re: Governors legal personality to file protest:
As presiding officer of the sangguniang panlalawigan, he has an interest in the election of the
officers of the FABC since its elected president becomes a member of the assembly. If the
president of the FABC assumes his presidency under questionable circumstances and is
allowed to sit in the sangguniang panlalawigan, the official actions of the sanggunian may be
vulnerable to attacks as to their validity or legality. Hence, governor is a proper party to
question the regularity of the elections of the officers of the FABC.
Nonetheless, SC still found as null and void the election for being violative of the provisions of
DLG Circular No. 89-09.
Since the election is still under protest such that no successor of the incumbent has as yet
qualified, the respondent Secretary has no choice but to have the incumbent FABC President
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sit as member of the sanggunian. He could even have appointed petitioner since he was
elected the president of the federation but not Antonio. The appointment of Antonio,
allegedly the protege of respondent Governor, gives credence to petitioner's charge of
political interference by respondent Governor in the organization. This should not be allowed.
The barangays should be insulated from any partisan activity or political intervention if only to
give true meaning to local autonomy.
ROMUALDEZ V. RTC | Vitug, 1993
FACTS
Philip Romualdez, a natural born citizen of the Philippines, the son of the former Governor of
Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then First Lady Imelda Marcos.
petitioner, in consonance with his decision to establish his legal residence at Barangay
Malbog, Tolosa, Leyte, caused the construction of his residential house therein. He soon
thereafter also served as a Barangay Captain of the place. In the 1984 Batasan Election and
1986 "snap" Presidential Election, Romualdez acted as the Campaign Manager of the Kilusang
Bagong Lipunan (KBL) in Leyte where he voted.
21-24 of Feb 1986, Romualdez, together with his immediate family, left the Philippines and
sought "asylum" in the United States which the US government granted. While abroad, he
took special studies on the development of Leyte-Samar and international business finance.
1987, Romualdez attempted to come back to the Philippines to run for a congressional seat in
Leyte. Failed.
25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District Director of
the U.S. Immigration and Naturalization Service, informing him that he should depart from
the U.S. at his expense on or before 23 August 1992.
Romualdez departed from the U.S. for the Philippines, arriving on 23 December 1991
apparently without any government travel document.
When Romualdez arrived in the Philippines, he did not delay his return to his residence at
Malbog, Tolosa, Leyte. During the registration of voters conducted by the Commission on
Elections on 01 February 1992 for the Synchronized National and Local Election scheduled for
11 May 1992, petitioner registered himself anew as a voter at Precinct No. 9 of Malbog,
Tolosa, Leyte. The Chairman of the Board of Election Inspectors, who had known Romualdez
to be a resident of the place and, in fact, an elected Barangay Chairman of Malbog in 1982,
allowed him to be registered.
Private respondent Donato Advincula filed a petition with the Municipal Trial Court of Tolosa,
Leyte, praying that Romualdez be excluded from the list of voters in Precinct No. 9 of
Malbog, Tolosa, Leyte, under BP 881 and RA 7166. Advincula alleged that Romualdez was a
resident of Massachusetts, U.S.A.; that his profession and occupation was in the U.S.A.; that
he had just recently arrived in the Philippines; and that he did not have the required one-year
residence in the Philippines and the six-month residence in Tolosa to qualify him to register as
a voter in Barangay Malbog, Tolosa, Leyte.
MTC found Romualdez to be a resident of Brgy. Malbog, Tolosa, Leyte and qualified to
register as a voter thereat and denied the petition for exclusion of Romualdez from the list of
voters.
Advincula appealed to the RTC. RTC ruled that Romualdez is disqualified to register as voter
for the 92 elections.
ISSUES
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
1. WON MTC had jurisdiction over the exclusion case considering Advincula failed to allege that he
himself is registered voter of Tolosa, Leyte pursuant to Sec. 142 of the OEC?
2. WON the RTC erred in finding the Romualdez to have voluntarily left the country and abandoned
his residence in Tolosa, Leyte?
HELD
1. NO, BUT Romualdez is estopped from raising this issue as he explicitly prayed that the MTC
decision be affirmed in his own appeal-memorandum.
2. YES
RATIO
In election cases, the Court treats domicile and residence as synonymous terms, thus: (t)he
term residence as used in the election law is synonymous with domicile, which imports
not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention.
Domicile denotes a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return.
That residence, in the case of the petitioner, was established during the early 1980's to be at
Barangay Malbog, Tolosa, Leyte. Residence thus acquired, however, may be LOST by adopting
another choice of domicile.
In order, in turn, to acquire a new domicile by choice, there must concur: (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of choice must be for
an indefinite period of time; the change of residence must be voluntary; and the residence at
the place chosen for the new domicile must be actual.
The Romualdezes going into self-exile until conditions favorable to them would have
somehow stabilized is understandable. Certainly, their sudden departure from the country
cannot be described as voluntary, or as abandonment of residence at least in the context
that these terms are used in applying the concept of domicile by choice.
The right to vote is a most precious political right, as well as a bounden duty of every citizen,
enabling and requiring him to participate in the process of government so as to ensure that
the government can truly be said to derive its power solely from the consent of the governed.
We, therefore, must commend Advincula for spending time and effort even all the way up to
this Court, for as the right of suffrage is not to be abridged, so also must we safeguard and
preserve it but only on behalf of those entitled and bound to exercise it.
BADELLES V. CABILI | Fernando, 1969
FACTS
Two election protests against the duly proclaimed Mayor and Councilors of Iligan City, after
the Nov. 14, 1967 elections, based on the allegations of flagrant violations of certain
mandatory provisions of the Election Code, were dismissed in a single order by the Court of
First instance of Lanao del Norte. The cases are on appeal.
In 1 of the cases, he election of Honorable Camilo P. Cabili to the Office of City Mayor of Iligan
City, was contested by Mariano Badelles. In the other, Bonifacio P. Legaspi and Cecilio T.
Barazon, who along with the five protestees were among those who were registered
candidates voted for in such election for councilors in the City of Iligan, with the protestees
being credited with the five highest number of votes, with protestants Legaspi and Barazon
obtaining sixth and seventh places respectively.
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In such order of dismissal, it was admitted that while irregularities as well as misconduct on
the part of election officers were alleged in the election protests filed, there was however an
absence of an allegation that they would change the result of the election in favor of the
protestants and against the protestees, that such irregularities would destroy the secrecy and
integrity of the ballots cast, or that the protestees knew of or participated in the commission
thereof. For the lower court then, the lack of a cause of action was rather evident.
In the petition of protestant Badelles, it was stated that both he and protestee Camilo P.
Cabili were the duly registered candidates for the Office of City Mayor of Iligan City, both
having filed their respective certificates of candidacy in accordance with law and as such
candidates voted for in the November 14, 1967 election. It was then alleged that the Board of
Canvassers, on November 25, 1967, proclaimed as elected protestee for having obtained
11,310 votes while protestant was credited with 8,966 votes. Protestant would impugn the
election of Cabili on the ground that there were "flagrant violations of mandatory provisions
of law relating to or governing elections . . . " in that more than 200 voters were registered
per precinct contrary to the provision limiting such number of 200 only and that no
publication of the list of voters for each precinct was made up to the election day itself,
enabling persons who under the law could not vote being allowed to do so. As a result of such
alleged "flagrant violations of the laws relative to or governing elections" around 8,300
individuals were allowed to vote illegally. It was likewise asserted that not less than 8,000
qualified voters were unable to exercise their right of suffrage in view of their failure, without
any fault on their part, to have the proper identification cards or the non-listing of their
names in the list of voters. It was stated further that even in the case of those individuals
provided with identification cards with their names included in the list of voters, they could
not avail themselves of their right of suffrage as their applications for registration could not
be found. Mention was also made of the fact that the final lists of voters and the applications
for registration were delivered to their respective precincts late on election day itself thus
preventing them from voting.
What was thus objected to is the fact that illegal votes were cast by those not qualified to do
so, numbering 8,300 or more and that an approximately equal number, who were duly
registered with the Commission on Elections, Iligan City, were unable to vote due to the
above circumstances. The proclamation then could not have reflected the true will of the
electorate as to who was the mayor elected, as the majority of protestee Cabili over the
protestant consisted of only 2,344 votes.
The protest of the candidates for councilor Legaspi and Barazon, in the other case against
protestees was in substance similarly worded. The prayer was for the setting aside and
declaring null and void the proclamation of protestees, with protestants seeking such other
relief which should be theirs according to law and to equity.
The two above election protests were dismissed, the lower court being of the opinion that
neither petition alleged a cause of action "to justify [it] to try the same." The first ground of
the motion to dismiss to the effect that the protests in both cases were filed beyond the
reglementary period was rejected. The claim as to lack of jurisdiction was likewise held to be
without merit. The single order of dismissal in both cases as indicated was based on the lack
of a cause of action.
ISSUE
WON the dismissal of the protests on the aforementioned grounds was proper?
HELD
NO, SC reverses RTC decision.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 128 Ma. Jessa M. Alvarez
RATIO
We do not discount a certain degree of plausibility attaching to the line of reasoning thus
pursued by the lower court. We are not unaware of the undeniable fact that both petitions
were not distinguished by skill in
counsel. Nonetheless the seriousness and gravity of the imputed failure to have the elections
conducted freely and honestly, with such irregularities alleged, give rise to doubts, rational
and honest, as to who were the duly elected officials. Such allegations, it is to be stressed,
would have to be accepted at their face value for the purpose of determining whether there is
a cause of action, a motion to dismiss amounting to a hypothetical admission of facts thus
pleaded. We cannot in law and in conscience then sustain the order of dismissal.
Citing Abes v COMELEC: The boundaries of the forbidden area into which COMELEC may not
tread are also marked by jurisprudence. That COMELEC is not the proper forum to seek
annulment of an election based on terrorism, frauds and other illegal practices, is a principle
emphasized in decisions of this Court. As announced in Nacionalista Party v. Commission on
Elections, assuming that there be a failure to conduct an election in a free, orderly and honest
manner, the duty to cure or remedy the resulting evil did not rest with the Commission on
Elections but in some other agencies of the Government. More specifically, with reference
to provincial and municipal officials, election contests are entrusted to the courts. The
power to decide election contests necessarily includes the power to determine the validity or
nullity of the votes questioned by either of the contestants.
If the grievance relied upon is the widespread irregularities and the flagrant violations of the
election law, the proper remedy is the one availed of here, the protest. Time and time again,
we have stressed the importance of preserving inviolate the right of suffrage. If that right be
disregarded or frittered away, then popular sovereignty becomes a myth. - Citing Moya v del
Fierro: As long as popular government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be the means by which
the great reservoir of power must be emptied into the receptacular agencies wrought by the
people through their Constitution in the interest of good government and the common weal .
Republicanism, in so far as it implies the adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority.
A republic then to be true to its name requires that the government rests on the consent of
the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter
counted. Only thus can they be really looked upon as the ultimate sources of established
authority. It is their undeniable right to have officials of their unfettered choice. The election
law has no justification except as a means for assuring a free, honest and orderly expression
of their views. It is of the essence that corruption and irregularities should not be permitted
to taint the electoral process.
If there be a failure to observe the mandates of the Election Code, the aggrieved parties
should not be left remediless. Under the law as it stands, it is precisely an election protest
that fitly serves that purpose.
B. Powers of the COMELEC
GALLARDO V. TABAMO | Davide, Jr., 1993
FACTS
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Petitioner Antonio Gallardo was the incumbent Governor of the Province of Camiguin and
was seeking re-election in the 11 May 1992 synchronized elections. Petitioners Antonio
Arevalo, Cresencio Echaves, Emmanuel Aranas and Palermo Sia are the provincial treasurer,
provincial auditor, provincial engineer and provincial budget officer of Camiguin, respectively.
Private respondent Pedro Romualdo was the incumbent Congressman of the lone
Congressional District of Camiguin, a candidate for the same office in the said synchronized
elections
Romualdo filed his Petition (Special Civil Action No. 465) before the court a quo against
petitioners Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and restrain them from
pursuing or prosecuting certain public works projects as (1) said projects were undertaken in
violation of the 45-day ban on public works imposed by the Omnibus Election Code; (2) the
hiring of hundreds of laborers in the different projects continues unabated in flagrant
violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code; (3) the
projects were undertaken in violation of the provisions of the Local Government Code
governing the use and expenditure of the twenty percent (20%) development fund of the
Province of Camiguin; (4) these projects, which are "Locally-Funded", were pursued without
the requisite approval of the provincial budget by the Regional Office of Budget and
Management as required by Section 326 of the Local Government Code; (5) some of the
projects which are "Foreign-Assisted" and funded by the Spanish Assistance for Integrated
Livelihood Program (SAIL) lack the required building permits and are without any relevance to
those livelihood projects envisioned by the SAIL; and (6) public work projects requiring
massive outlay of public funds during this election period has been and is being done
maliciously and intentionally for the purpose of corrupting the voters and inducing them to
support the candidacy of Respondent Gallardo and his candidates in the coming May 11, 1992
election.
On the same day that the private respondent filed his petition, public respondent Judge
issued the questioned TRO.
Petitioners filed the instant special civil action for certiorari and prohibition alleging that
Judge Tabamo has no jurisdiction over special civil action a suit intended to enjoin an alleged
violation of the omnibus election code; that the regional trial court's jurisdiction is limited to
criminal actions for violation of the omnibus election code; that the regional trial court has no
jurisdiction to take cognizance of complaints/petition based on election offenses prior to the
conduct of preliminary investigation by the commission on elections; further, private
respondent has no right to file special civil action no. 465 since the authority to prosecute
election offenses belongs to the commission on elections.
ISSUE
WON TC has jurisdiction over said election offenses?
HELD
NO, the acts sought to be restrained in Special Civil Action No. 465 before the court a quo are
matters falling within the exclusive jurisdiction of the COMELEC.
RATIO
Citing Zaldivar v Estenzo: Considering that the Commission on Elections is vested by the
Constitution with exclusive charge of the enforcement and administration of all laws relative
to the conduct of elections, the assumption of jurisdiction by the trial court over a case
involving the enforcement of the Election Code is at war with the plain constitutional
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
command, the implementing statutory provisions, and the hospitable scope afforded such
grant of authority so clear and unmistakable in recent decisions.
COMELEC has broader power under present constitution compared with 1973 (enforce and
deputize) and 1935 (enforce, deputize, perform other functions). 1987 implicitly grants the
Commission the power to promulgate such rules and regulations. To wit: Section 2 of Article
IX-C: (1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear
that its incorporation into the present Constitution took into account the Commission's power
under the Omnibus Election Code (BP Blg. 881), which was already in force when the said
Constitution was drafted and ratified, to: Promulgate rules and regulations implementing the
provisions of this Code or other laws which the Commission is required to enforce and
administer,
The present Constitution upgraded to a constitutional status the aforesaid statutory authority
to grant the Commission broader and more flexible powers to effectively perform its duties
and to insulate it further from legislative intrusions. Doubtless, if its rule-making power is
made to depend on statutes, Congress may withdraw the same at any time. Indeed, the
present Constitution envisions a truly independent Commission on Elections committed to
ensure free, orderly, honest, peaceful and credible elections, and to serve as the guardian of
the people's sacred right of suffrage.
The citizenry's vital weapon in effecting a peaceful change of government and in achieving
and promoting political stability.
RATIONALE for the decision (so no judge will lose his bearings when confronted with the same
issue, otherwise, he should be held to account for either the sheer ignorance of the law or the
callous disregard of pronouncements by this Court to accommodate partisan political
feelings): Why should not the judiciary be a co-participant in this particular instance of
enforcing the Election Code as its authority was invoked? The obvious answer is the literal
language of the Constitution which empowers the Commission on Elections to have exclusive
charge of the enforcement and administration of all laws relative to the conduct of the
elections. Moreover, as was so aptly observed by the then Justice Frankfurter, although the
situation confronting the US Supreme Court was of a different character: Nothing is clearer
than that this controversy concerns matters that brings courts into immediate and active
relations with party contests. From the determination of such issues this Court has
traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the
politics of the people. And it is not less pernicious if such judicial intervention in an essentially
political contest be dressed up in the abstract phrases of the law. Then, too, reference by
analogy may be made to the principle that sustains Albano v. Arranz. For even without the
express constitutional prescription that only this Court may review the decisions, orders and
rulings of the COMELEC, it is easy to understand why no inference whatsoever with the
performance of the COMELEC of its functions should be allowed unless emanating from this
Court. The observation of Acting CJ J.B.L. Reyes in Albano v. Arranz, while not precisely in
point, indicates the proper approach. Thus: It is easy to realize the chaos that would ensue if
the CFI of each and every province were to arrogate unto itself the power to disregard,
suspend, or contradict any order of the COMELEC; that constitutional body would be speedily
reduced to impotence. It is not improbable that CFI would be resorted to by leaders of
candidates or political factions entertaining the belief whether rightly or wrongly that local
officials would employ all the power at their command to assure the victory of their
candidates. Even if greater care and circumspection, than did exist in this case, would be
employed by judges thus appealed to, it is not unlikely that the shadow of suspicion as to
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alleged partisanship would fall on their actuations, whichever way the matter before them is
decided. It is imperative that the faith in the impartiality of the judiciary be preserved
unimpaired. Whenever, therefore, the fear may be plausibly entertained that an assumption
of jurisdiction would lead to a lessening of the undiminished trust that should be reposed in
the courts and the absence of authority discernible the from the wording of applicable
statutory provisions and the trend of judicial decisions, even if no constitutional mandate as
that present in this case could be relied upon, there should be no hesitancy in declining to
act. - It is NOT TRUE that the jurisdiction of the RTC under the election laws is limited to
criminal actions for violations of the Omnibus Election Code. The Constitution itself grants to
it exclusive original jurisdiction over contests involving elective municipal officials. As to
Congressman Romualdos legal standing:
There is nothing in the law to prevent any citizen from exposing the commission of an
election offense and from filing a complaint in connection therewith. On the contrary, under
the COMELEC Rules of Procedure, initiation of complaints for election offenses may be done
motu proprio by the Commission on Elections or upon written complaint by any citizen,
candidate or registered political party or organization under the party-list system or any of
the accredited citizens arms of the Commission. However, such written complaints should be
filed with the "Law Department of the Commission; or with the offices of the Election
Registrars, Provincial Election Supervisors or Regional Election Directors, or the State
Prosecutor, Provincial Fiscal or City Fiscal. As earlier intimated, the Romualdo was not
seriously concerned with the criminal aspect of his alleged grievances. He merely sought a
stoppage of the public works projects because of their alleged adverse effect on his
candidacy. Indeed, while he may have had reason to fear and may have even done the right
thing, he committed a serious procedural misstep and invoked the wrong authority.
Dispositive: Court granted the certiorari but was quick in making a disclaimer that they do not
approve of the complained acts.
TAN V. COMELEC | Vitug, 1994
FACTS
Petitioner, as incumbent City Prosecutor of Davao City, was designated by COMELEC as Vice-
Chairman of the City of Board of Canvassers of Davao City for the 11th May 1992
synchronized national and local elections.
Manuel Garcia was proclaimed the winning candidate for a congressional seat to represent
the Second District of Davao City in the House of Representatives.
Private respondent Alterado, himself a candidate for the position, filed a number of cases
questioning the validity of the proclamation of Manuel Garcia and accusing the members of
the City Board of Canvassers of "unlawful, erroneous, incomplete and irregular canvass."
Meanwhile, the electoral protest of private respondent Alterado was dismissed by the House
of Representatives Electoral Tribunal ("HRET"). The criminal complaint for "Falsification of
Public Documents and Violation of the Anti-Graft and Corrupt Practices Act" before the Office
of the Ombudsman was likewise dismissed on the ground of lack of criminal intent on the part
of therein respondents. Still pending is an administrative charge, the case now before us,
instituted in the COMELEC against the City Board of Canvassers, including herein petitioner,
for "Misconduct, Neglect of Duty, Gross Incompetence and Acts Inimical to the Service."
Petitioner moved to dismiss the administrative complaint against him for alleged lack of
jurisdiction of the COMELEC thereover, he being under the Executive Department of the
government. The COMELEC denied petitioner's motion to dismiss. Hence, the instant
petition.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 130 Ma. Jessa M. Alvarez
ISSUE
WON COMELEC has jurisdiction over Tans office?
HELD
YES
RATIO
COMELEC's authority under Section 2(6-8), Article IX, of the Constitution is virtually all-
encompassing when it comes to election matters. In respect particularly to sanctions against
election offenses: (6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases
of violations of election laws, including acts or omission constituting election frauds, offenses,
and malpractices. (8) Recommend to the President the removal of any officer or employee it
has deputized or the imposition of any other disciplinary action, for violation or disregard of,
or disobedience to its directive, order, or decision.
The administrative case against Tan, taken cognizance of by, and still pending with, the
COMELEC, is in relation to the performance of his duties as an election canvasser and NOT as
a city prosecutor. COMELEC's mandate includes its authority to exercise direct and immediate
supervision and control over national and local officials or employees, including members of
any national or local law enforcement agency and instrumentality of the government,
required by law to perform duties relative to the conduct of elections. In order to help ensure
that such duly deputized officials and employees of government carry out their respective
assigned tasks, the law has also provided than upon the COMELEC's recommendation, the
corresponding proper authority (the Secretary of the Department of Justice in the case at bar)
shall take appropriate action, either to suspend or remove from office the officer or employee
who may, after due process, be found guilty of violation of election laws or failure to comply
with instructions, orders, decision or rulings of the COMELEC.
Unavoidably, the COMELEC, prior to making its recommendation, must first satisfy itself that
there indeed has been an infraction of the law, or of its directives issued conformably
therewith, by the person administratively charged. It also stands to reason that it is the
COMELEC, being in the best position to assess how its deputized officials and employees
perform or have performed in their duties, that should conduct the administrative inquiry. To
say that the COMELEC is without jurisdiction to look into charges of election offenses
committed by officials and employees of government outside the regular employ of the
COMELEC would be to unduly deny to it the proper and sound exercise of such
recommendatory power and, perhaps more than that, even a possible denial of due process
to the official or employee concerned.
The investigation then being conducted by the Ombudsman on the criminal case for
falsification and violation of the Anti-Graft and Corrupt Practices Act, on the one hand, and
the inquiry into the administrative charges by the COMELEC, on the other hand, are entirely
independent proceedings. An absolution from a criminal charge is not a bar to an
administrative prosecution.
MONTEJO V. COMELEC | Puno, 1995
FACTS
Petitioner Cirilo Roy G. Montejo, representing the First District of Leyte, pleads for the
annulment of section 1 of Resolution No. 2736 of the COMELEC, redistricting certain
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municipalities in Leyte, on the ground that it violates the principle of equality of
representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality
of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F.
Apostol, representing the Second District, vigorously opposed the inclusion of Tolosa in his
district.
Unprecedented exercise by the COMELEC of the legislative power of redistricting and
reapportionment
Local Government Code took effect. Pursuant to its Section 462, the sub-province of Biliran
became a regular province. To remedy the resulting inequality in the distribution of
inhabitants, voters and municipalities in the province of Leyte, respondent COMELEC held
consultation meetings with the incumbent representatives of the province and other
interested parties. On December 29, 1994, it promulgated Resolution No. 2736 where, among
others, it transferred the municipality of Capoocan of the Second District and the municipality
of Palompon of the Fourth District to the Third District of Leyte. The composition of the First
District which includes the municipality of Tolosa and the composition of the Fifth District
were not disturbed.
Petitioner Montejo filed a motion for reconsideration calling the attention of respondent
COMELEC, among others, to the inequitable distribution of inhabitants and voters between
the First and Second Districts. He alleged that the First District has 178,688 registered voters
while the Second District has 156,462 registered voters or a difference of 22,226 registered
voters. To diminish the difference, he proposed that the municipality of Tolosa with 7,700
registered voters be transferred from the First to the Second District. The motion was
opposed by intervenor, Sergio A.F. Apostol. Respondent Commission denied the motion ruling
that: (1) its adjustment of municipalities involved the least disruption of the territorial
composition of each district; and (2) said adjustment complied with the constitutional
requirement that each legislative district shall comprise, as far as practicable, contiguous,
compact and adjacent territory.
ISSUE
WON COMELEC has the legislative power of redistricting and reapportionment?
HELD
NO, Section 1 of Resolution No. 2736 is void.
RATIO
The basic powers of COMELEC, as enforcer and administrator of our election laws, are spelled
out in black and white in section 2(c), Article IX of the Constitution. Rightly, COMELEC does
not invoke this provision but relies on the Ordinance appended to the 1987 Constitution
(entitled Apportioning the Seats of the House of Representatives of the Congress of the
Philippines to the Different Legislative Districts in Provinces and Cities and the Metropolitan
Manila Area) as the source of its power of redistricting which is traditionally regarded as part
of the power to make laws.
The Ordinance was made by Cory using her legislative powers under the Provisional
Constitution granted by the Proclamation 3.
Sec.2 thereof provides that: The COMELEC is hereby empowered to make minor adjustments
COMELEC the major power of legislative apportionment as it itself exercised the power.
Citing debates of the ConCom: The authority conferred would be on minor corrections or
amendments, meaning to say, for instance, that we may have forgotten an intervening
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
municipality in the enumeration, which ought to be included in one district. Can it be
possible that one municipality in a district be transferred to another district and call it a minor
adjustment? That cannot be done, Mr. Presiding Officer. Minor, meaning, that there should
be no change in the allocations per district. However, it may happen that we have forgotten a
municipality in between which is still in the territory of one assigned district, or there may be
an error in the correct name of a particular municipality because of changes made by the
interim Batasang Pambansa and the Regular Batasang Pambansa.
Section 3 of the Ordinance did not also give the respondent COMELEC any authority to
transfer municipalities from one legislative district to another district. The power granted by
Section 3 to the respondent COMELEC is to adjust the number of members (not
municipalities) "apportioned to the province out of which such new province was created. . .
." - The issue involves a problem of reapportionment of legislative districts and petitioner's
remedy lies with Congress. Section 5(4), Article VI of the Constitution categorically gives
Congress the power to reapportion, thus: "Within three (3) years following the return of every
census, the Congress shall make a reapportionment of legislative districts based on the
standards provided in this section."
HERRERA V. COMELEC | Purisima, 1997
FACTS
In view of the addition of the two (2) new municipalities, San Lorenzo and Sibunag, to the
Province of Guimaras, the Sangguniang Panlalawigan of Guimaras decided to have the
province subdivided into two provincial districts. it passed Resolution No. 68 requesting the
Commission on Elections to bring about the desired division.
Provincial Election Supervisor in the Province of Guimaras conducted two consultative
meetings with due notice to all elected provincial and municipal officials, barangay captains,
barangay kagawads, representatives of all political parties, and other interested parties.
Through secret balloting, a consensus was reached unanimously in favor of a division.
Provincial Election Supervisor issued a Memorandum recommending the division of the
Province of Guimaras into two (2) provincial districts.
Bureau of Local Government Finance of the Department of Finance issued Memorandum
Circular No. 97-1 reclassifying several provinces including the Province of Guimaras, which
was reclassified from fifth class to fourth class province.
In line with such reclassification, the Commission on Elections issued the Resolution No. 2950
under attack, which allotted eight (8) Sangguniang Panlalawigan seats to the Province of
Guimaras, dividing it into two provincial districts.
Resolution No. 2950 of the Commission on Elections is the subject of the present Petition for
Certiorari brought by the petitioners, as taxpayers and residents of the Province of Guimaras.
Petitioners question the manner in which the province was so divided into districts, pointing
out that: 1) the districts do not comprise a compact, contiguous and adjacent area; 2) the
consultative meeting upon which the districting was based did not express the true
sentiment of the voters of the province; 3) the apportionment of the province into two
districts is not equitable, and 4) there is disparity in the ratio of the number of voters that a
Board Member represents.
ISSUE/HELD
WON COMELEC committed grave abuse of discretion when it issued the resolution? NO
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RATIO
The division of provinces into districts and the corresponding apportionment by district of the
number of elective members of the SP are provided for by law, in Sec. 4 of RA 6636:
First and second class provinces shall each have 10 elective members; third and fourth class
provinces, eight; and fifth and sixth class provinces, six to be elected at large by the qualified
voters therein. All other municipalities shall have the same number of elective members as
provided in existing laws. Sec. 3 (b) of RA 7166: For provinces with only 1 legislative district,
the Commission shall divide them into 2 districts for purposes of electing the members of the
SP, as nearly as practicable according to the number of inhabitants, each district comprising a
compact, contiguous and adjacent territory, and the number of seats of elective members of
their respective sanggunian shall be equitably apportioned between the districts in
accordance with the immediately preceding paragraph;
Guimaras was re-classified from a fifth class to a fourth class province under Memorandum
Circular No. 97-1 issued by the Bureau of Local Government Finance of the Department of
Finance. Hence, the Province of Guimaras, having only one legislative district, has to be
divided into two provincial districts with an allotment of eight elective members of the
Sangguniang Panlalawigan by virtue of its reclassification into a fourth class province.
The rules and guidelines to be followed by the COMELEC in the apportionment, by district, of
the number of elective members of the SP in provinces with only 1 legislative district is
provided for by law. Under the above cited R.A. 7166, division of provinces into districts shall
be done in a manner: (1) as nearly as practicable, (2) according to the number of inhabitants,
(3) each district comprising a compact, contiguous and adjacent territory, and (4) the number
of seats of elective members of the respective Sanggunian equitably apportioned between
the districts. Petitioners say: The apportionment of the Province of Guimaras into two
districts is not equitable due to disproportionate representation. The districting embodied in
Resolution No. 2950 results in a disparity of representation in that, in the first district, there is
a ratio of one board member per 18,739 voters while in the second district, the ratio is one
board member per 14,050 voters
Petitioners' contention is untenable. Under R.A. 7166 and Comelec Resolution No. 2313, the
basis for division into districts shall be the number of inhabitants of the province concerned
and NOT the number of listed or registered voters as theorized upon by petitioners. Thus,
Comelec did not act with grave abuse of discretion in issuing the assailed Resolution because
clearly, the basis for the districting is the number of inhabitants of the Province of Guimaras
by municipality based on the official 1995 Census of Population as certified to by Tomas P.
Africa, Administrator of the National Statistics Office.
MASTURA V. COMELEC | Bellosillo, 1998
FACTS
Petitioner Michael O. Mastura and private respondent, Didagen P. Dilangalen, were
congressional candidates for the first district of Maguindanao during the 8 May 1995
elections. In the canvassing of votes, Dilangalen objected to the inclusion of the Certificate of
Canvass of the Municipality of Matanog on the ground that the same was allegedly tampered.
COMELEC Second Division ordered the production and examination of the election returns of
the Municipality of Matanog. In the course of the examination four [4] ballot boxes were
produced and opened.
Upon examination and comparison of the copies of the election returns of the MTC Judge and
the COMELEC, the COMELEC Second Division found that indeed, the Certificate of Canvass of
the Municipality of Matanog had been tampered with. Consequently, the COMELEC Second
PROF. GISELLA N. DIZON-REYES
 132 Ma. Jessa M. Alvarez 2003-29275
Division issued the herein assailed Order of 29 February 1996 annulling the Certificate of
Canvass of Matanog.
Mastura filed an Urgent Motion to Examine and Verify the Canvassed MBC Copies of the
Election Returns and the COMELEC Copy of the Certificate of Canvass and Accompanying
Statement of Votes.
Mastura filed an Urgent Motion to Defer Implementation of the 29 February 1996 Order.
Mastura argued that the 29 February 1996 Order was issued precipitately and prematurely
considering that some other documents, particularly the Certificate of Canvass of Matanog
which he considered necessary for the resolution of the issue, was yet to be produced and
examined. The COMELEC Second Division denied the motion.
He new Municipal Board of Canvassers convened and recanvassed the votes. During the
proceedings, Mastura objected to the inclusion of fifty [50] out of the fifty-seven [57] election
returns on the ground that the COMELEC copy of the election returns was not reflective of the
true results unless compared with the copy of the original Municipal Board of Canvassers. But
the new Municipal Board of Canvassers believed otherwise; hence, it included in the canvass
the fifty [50] election returns objected to by Mastura who thereafter walked out while the
new Municipal Board of Canvassers continued with the Canvassing.
Provincial Board of Canvassers convened and prepared the Certificate of Canvass and
Statement of Votes of the Municipality of Matanog. As a result, private respondent Dilangalen
was proclaimed the duly elected member of the House of Representatives, First District of
Maguindanao.
ISSUE
WON COMELEC acted with grave abuse of discretion in issuing the orders (annulment of the
certificate of canvas and creation of new board of canvassers)?
HELD
NO, the assailed Orders having been issued pursuant to COMELECs administrative powers and in
the absence of any finding of grave abuse of discretion, judicial interference is therefore
unnecessary and uncalled for.
RATIO
COMELEC can suspend the canvass of votes pending its inquiry whether there exists a
discrepancy between the various copies of election returns from the disputed voting centers.
Corollarily, once the election returns were found to be falsified or tampered with, the
COMELEC can annul the illegal canvass and order the Board of Canvassers to reconvene and
proclaim the winners on the basis of the genuine returns or, if it should refuse, replace the
members of the board or proclaim the winners itself.
That the Certificate of Canvass of the Municipality of Matanog was tampered with is a factual
finding of the COMELEC. Absent any showing of abuse of discretion amounting to lack of
jurisdiction, this Court should refrain from reviewing the same, and must accord it instead the
respect it deserves. The rule that factual findings of administrative bodies will not be
disturbed by courts of justice except when there is absolutely no evidence or no substantial
evidence in support of such findings should be applied with greater force when it concerns
the COMELEC, as the framers of the Constitution intended to place the COMELEC created
and explicitly made independent by the Constitution itself on a level higher than statutory
administrative organs. The COMELEC has broad powers to ascertain the true results of the
election by means available to it. For the attainment of that end, it is not strictly bound by the
rules of evidence.
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October 6, 2011
Pursuant to its administrative functions, the COMELEC exercises direct supervision and
control over the proceedings before the Board of Canvassers.
Citing Aratuc v. Commission on Elections: While nominally, the procedure of bringing to the
Commission objections to the actuations of boards of canvassers has been quite loosely
referred to in certain quarters, even by the Commission and by this Court . . . as an appeal,
the fact of the matter is that the authority of the Commission in reviewing such actuations
does not spring from any appellant jurisdiction conferred by any specific provision of law, for
there is none such provision anywhere in the Election Code, but from the plenary prerogative
of direct control and supervision endowed to it by the above-quoted provisions of Section
168. And in administrative law, it is a too well settled postulate to need any supporting
citation here, that a superior body or office having supervision and control over another may
do directly what the latter is supposed to do or ought to have done . . . .
Citing Lucman v. Dimaporo :The function of a canvassing board in the canvass of the returns
is purely ministerial in nature. Equally ministerial, therefore, is the function of the COMELEC,
in the exercise of its supervisory power over said Board, pursuant to our Constitution and
laws. So long as the election returns have been accomplished in due form, the Board, and on
appeal therefrom, the COMELEC must include said returns in the canvass. - Citing Abes v.
Commission on Elections: . . . (T)he board of canvassers is a ministerial body. It is enjoined by
law to canvass all votes on election returns submitted to it in due form. It has been said, and
properly, that its powers are limited generally to the mechanical or mathematical function of
ascertaining and declaring the apparent result of the election by adding or compiling the
votes cast for each candidate as shown on the face of the returns before them, and then
declaring or certifying the result so ascertained. COMELEC is the constitutional body charged
with the duty to enforce all laws relative to elections, duty bound to see to it that the board of
canvassers perform its proper function. Pertinent rulings of this Court have since defined
COMELEC's powers in pursuance of its supervisory or administrative authority over officials
charged with specific duties under the election code. It is within the legitimate concerns of
COMELEC to annul a canvass or proclamation based on incomplete returns, or on incorrect or
tampered returns; annul a canvass or proclamation made in an unauthorized meeting of the
board of canvassers either because it lacked a quorum or because the board did not meet at
all. Neither Constitution nor statute has granted COMELEC or board of canvassers the power,
in the canvass of election returns, to look beyond the face thereof, once satisfied of their
authenticity.
BAAGA JR. V. COMELEC | Quisumbing, 2000
FACTS
Petitioner and private respondent were the candidates for vice-mayor of the City of
Paraaque in the May 11, 1998 election. On May 19, 1998, the city board of canvassers
proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for having
garnered a total of (71,977) votes of the total votes cast for the vice-mayoralty position.
On the other hand, petitioner, Tomas T. Banaga, Jr., received the second highest
number of votes for the said position, with (68,970) of the total votes cast. Thus, the
difference between the votes received by the private respondent and the petitioner is
(3,007) votes.
Petitioner filed with the COMELEC "Petition to Declare Failure of Elections and/or For
Annulment of Elections"
COMELEC dismissed petitioner's suit. It held that the grounds relied upon by petitioner
do not fall under any of the instances enumerated in Section 6 of the Omnibus Election
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Code. The election tribunal concluded that based on the allegations of the petition, it is
clear that an election took place and that it did not result in a failure to elect.
Petitioner timely filed the instant petition for certiorari with this Court.
ISSUE
WON COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it dismissed his petition motu propio without any basis whatsoever and without giving him
the benefit of a hearing? NO
RATIO
While he may have intended to institute an election protest by praying that said action may
also be considered an election protest, petitioners action is a petition to declare a failure of
elections or annul election results. It is NOT an election protest. [1] His petition before the
COMELEC was instituted pursuant to Section 4 of RA 7166 in relation to Section 6 of the OEC.
Section 4 of RA 7166 refers to postponement, failure of election and special elections while
Section 6 of the Omnibus Election Code relates to failure of election. It is simply captioned
as Petition to Declare Failure of Elections and/or For Annulment of Elections.
[2] An election protest is an ordinary action while a petition to declare a failure of elections is
a special action under the 1993 COMELEC Rules of Procedure as amended. An election
protest is governed by Rule 20 on ordinary actions, while a petition to declare failure of
elections is covered by Rule 26 under special actions.
[3] He did not comply with the requirements for filing an election protest e.g. payment of
required filing fee and cash deposits for an election protest. Failure to pay filing fees will not
vest the election tribunal jurisdiction over the case. Such procedural lapse on the part of a
petitioner would clearly warrant the outright dismissal of his action.
[4] An en banc decision of COMELEC in an ordinary action becomes final and executory after
30 days from its promulgation, while an en banc decision in a special action becomes final and
executory after 5 days from promulgation, unless restrained by the Supreme Court. For that
reason, a petition cannot be treated as both an election protest and a petition to declare
failure of elections.
COMELECs authority to declare a failure of elections is provided in our election laws. Section
4 of RA 7166 provides that the COMELEC sitting en banc by a majority vote of its members
may decide, among others, the declaration of failure of election and the calling of special
election as provided in Section 6 of the OEC.
Section 6. Failure of Elections. --- If, on account of force majeure, violence, terrorism, fraud
or other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or
after the voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a fai lure to elect, and in any of such
cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect.
3 instances where a failure of election may be declared:
(a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous causes;
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2003-29275 October 6, 2011 133
(b) the election in any polling place has been suspended before the hour fixed by law for the
closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other analogous causes.
In these instances, there is a resulting failure to elect. This is obvious in the first two
scenarios, where the election was not held and where the election was suspended. As to the
third scenario, where the preparation and the transmission of the election returns give rise to
the consequence of failure to elect must as aforesaid, is interpreted to mean that nobody
emerged as a winner.
Before the COMELEC can act on a verified petition seeking to declare a failure of election two
conditions must concur:
(1) no voting took place in the precinct or precincts on the date fixed by law, or even if there
was voting, the election resulted in a failure to elect; and
(2) the votes not cast would have affected the result of the election.
Note that the cause of such failure of election could only be any of the following: force
majeure, violence, terrorism, fraud or other analogous causes.
Baaga did not allege at all that elections were either not held or suspended. Neither did he
aver that although there was voting, nobody was elected. On the contrary, he conceded that
an election took place for the office of vice-mayor of Paraaque City, and that Bernabe was, in
fact, proclaimed elected to that post. While he contends that the election was tainted with
widespread anomalies, it must be noted that to warrant a declaration of failure of election
the commission of fraud must be such that it prevented or suspended the holding of an
election, or marred fatally the preparation and transmission, custody and canvass of the
election returns. These essential facts ought to have been alleged clearly by the petitioner
below, but he did not.
Anent COMELECs motu proprio dismissal of his petition: The fact that a verified petition has
been filed does not mean that a hearing on the case should first be held before COMELEC can
act on it. The petition to declare a failure of election and/or to annul election results must
show on its face that the conditions necessary to declare a failure to elect are present. In
their absence, the petition must be denied outright. COMELEC had no recourse but to dismiss
petition.
AGGABAO V. COMELEC| Ynares-Santiago , 2005
FACTS
Petitioner Georgidi B. Aggabao and private respondent Anthony Miranda were rival
congressional candidates for the 4th District of Isabela during the May 10, 2004 elections.
During the canvassing of the certificates of canvass of votes (COCV) for the municipalities of
Cordon and San Agustin, Miranda moved for the exclusion of the 1st copy of the COCV on
grounds that it was tampered with; prepared under duress; differed from other authentic
copies and contained manifest errors.
Aggabao objected arguing that the grounds raised by Miranda are proper only for a pre-
proclamation controversy which is not allowed in elections for Members of the House of
Representatives.
The reconstituted Provincial Board of Canvassers (PBC) excluded from canvass the contested
COCVs and used instead the 4th and 7th copies of the COCVs. Based on the results, Miranda
garnered the highest number of votes for the position of Congressman.
PROF. GISELLA N. DIZON-REYES
 134 Ma. Jessa M. Alvarez
On appeal with the COMELEC, Aggabao asserted that the PBC acted without jurisdiction when
it heard Mirandas Petition for Exclusion. Even assuming that the PBC had jurisdiction over the
petition, it still erred in excluding the contested COCVs as they appeared regular and properly
authenticated.
Miranda filed a Very Urgent Motion for Proclamation which was opposed by petitioner who
contended that the pendency of his appeal with the COMELEC Second Division is a bar to
Mirandas proclamation.
Commissioner Mehol K. Sadain, commissioner in-charge for Regions II and III, approved the
proclamation of the remaining winning candidates for the province of Isabela.
COMELEC En Banc issued Resolution No. 7233 likewise directing the proclamation of the
remaining winning candidates in Isabela. petitioner filed with the COMELEC an Urgent Motion
to Set Aside the Notice of Proclamation with Prayer for the Issuance of a Temporary
Restraining Order.
Miranda was proclaimed as the duly elected Congressman for the 4th District of Isabela.
Two days after the proclamation, Aggabao filed this petition assailing Resolution No. 7233.
He claimed that the COMELEC En Banc acted without jurisdiction when it ordered Mirandas
proclamation considering that the Second Division has not yet resolved the appeal.
Miranda moved for the dismissal of the petition considering that the issue raised by Aggabao
is best addressed to the House of Representatives Electoral Tribunal.
ISSUE
WON Certiorari lies to assail COMELECs resolution proclaiming Miranda as the winner?
HELD
NO, proper recourse is to the HRET. COMELEC lost jurisdiction after proclamation.
RATIO
The HRET has sole and exclusive jurisdiction over all contests relative to the election, returns,
and qualifications of members of the House of Representatives. Thus, once a winning
candidate has been proclaimed, taken his oath, and assumed office as a Member of the
House of Representatives, COMELECs jurisdiction over election contests relating to his
election, returns, and qualifications ends, and the HRETs own jurisdiction begins.
It is undisputed that Miranda has already been proclaimed, taken his oath and assumed office
on June 14, 2004. As such, petitioners recourse would have been to file an electoral protest
before the HRET. His remedy is not this petition for certiorari.
The allegation that Mirandas proclamation is null and void ab initio does not divest the HRET
of its jurisdiction.
Citing Lazatin v COMELEC: Upon proclamation of the winning candidate and despite its
alleged invalidity, the COMELEC is divested of its jurisdiction to hear the protest.
POE V. MACAPAGAL-ARROYO | Quisumbing, 2005
FACTS
Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably
an election protest before this Electoral Tribunal. Protestant died in the course of his
medical treatment at St. Lukes Hospital.
Periodic mass actions, demonstrations, and rallies raising an outcry for this Tribunal to
decide the electoral protest of Mr. FPJ against Mrs. GMA once and for all.
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Yet, neither could it go beyond its mandate under the Constitution and the law. Further,
this Tribunal is guided by its Rules, as well as the Rules of Court in a suppletory manner.
Considering the transcendental importance of the electoral contest involving the
Presidency, a rush to judgment is simply out of the question. Yet decide the matter we
must, without further delay, to prevent popular unrest and avoid further destabilization
of government at the highest level.
Together with the formal Notice of the Death of Protestant, his counsel has submitted
to the Tribunal a MANIFESTATION with URGENT PETITION/MOTION to INTERVENE AS A
SUBSTITUTE FOR DECEASED PROTESTANT FPJ, by the widow, Mrs. Jesusa Sonora Poe,
who signed the verification and certification therein. Mrs. FPJ claims that because of the
untimely demise of her husband and in representation not only of her deceased
husband but more so because of the paramount interest of the Filipino people, there is
an urgent need for her to continue and substitute for her late husband in the election
protest initiated by him to ascertain the true and genuine will of the electorate in the
2004 elections. In support of her assertion, she cites De Castro v. Commission on
Elections, and Lomugdang v. Javier, to the effect that the death of the protestant does
not constitute a ground for the dismissal of the contest nor oust the trial court of the
jurisdiction to decide the election contest. She stresses nevertheless that even if the
instant protest case succeeds, she is cognizant that as a mere substitute she cannot
succeed, assume or be entitled to said elective office, and her utmost concern is not
personal but one that involves the publics interest. She prays, however, that if
subsequently determined that the protestee Gloria Macapagal-Arroyo did not get the
highest number of votes for president, for protestee to be disallowed from remaining in
office.
Protestee, asserts that the widow of a deceased candidate is not the proper party to
replace the deceased protestant since a public office is personal and not a property that
passes on to the heirs. She points out that the widow has no legal right to substitute for
her husband in an election protest, since no such right survives the husband, considering
that the right to file an election protest is personal and non-transmissible. Protestee also
contends Mrs. FPJ cannot substitute for her deceased husband because under the Rules
of the Presidential Electoral Tribunal, only the registered candidates who obtained the
2nd and 3rd highest votes for the presidency may contest the election of the president
and patently, Mrs. FPJ did not receive the 2nd and 3rd highest votes for she was not
even a candidate for the presidency in the election that is being contested. protestee
also stresses that this Tribunal has no jurisdiction over actions of surviving spouses to
ascertain the vote of the electorate as the Tribunal has jurisdiction only over election
protests and quo warranto cases. That Mrs. FPJ cannot use the public interest to
justify her request to be substituted for her husband. Public interest, i.e. the need to
dispel uncertainty over the real choice of the electorate, is applicable only in election
contests, not in an action to merely ascertain the true and genuine will of the people.
Protestee also contends that in the adversarial nature of a protest case where one of
the parties dies, a correct ruling cannot be had because the dead protestant could no
longer refute his adversarys allegations because death has rendered him hors de
combat.
ISSUE
WON protestants widow could intervene and/or substitute for the deceased party, assuming
arguendo that the protest could
survive his death?
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
HELD
NO, she has no legal interest in pursuing the case.
RATIO
Rule 14. Election Protest. Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified petition
with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner.
Only two persons, the 2nd and 3rd placers, may contest the election. By this express
enumeration, the rule makers have in effect determined the real parties in interest
concerning an on-going election contest. It envisioned a scenario where, if the declared
winner had not been truly voted upon by the electorate, the candidate who received that 2nd
or the 3rd highest number of votes would be the legitimate beneficiary in a successful election
contest.
Though theres no rule on substitution nor intervention, PET allows for the analogous and
suppletory application of the Rules of Court, decisions of the Supreme Court, and the
decisions of the electoral tribunals.
Rule 3, Section 16 is the rule on substitution in the RoC: Allows substitution by a legal
representative.
However, in our application of this rule to an election contest, we have every time ruled that
a public office is personal to the public officer and not a property transmissible to the heirs
upon death. Thus, we consistently rejected substitution by the widow or the heirs in election
contests where the protestant dies during the pendency of the protest.
Citing Vda de De Mesa: This is not to say that death of the protestant necessarily abates the
pending action. While the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue the
protest proceedings. Hence, we have allowed substitution and intervention but only by a real
party in interest. A real party in interest is the party who would be benefited or injured by the
judgment, and the party who is entitled to the avails of the suit e.g. Vice Mayor, VP
LEGARDA V. DE CASTRO | Quisumbing, 2005
FACTS
Presidential Electoral Tribunal (PET) confirmed the jurisdiction over the protest of Loren B.
Legarda and denied the motion of protestee Noli L. de Castro for its outright dismissal.
Protestee filed a motion for reconsideration assailing the said resolution.
Protestee argues that where the correctness of the number of votes is the issue, the best
evidence are the ballots; that the process of correcting the manifest errors in the certificates
of canvass or election returns is a function of the canvassing bodies; that once the canvassing
bodies had done their functions, no alteration or correction of manifest errors can be made;
that since the authority of the Tribunal involves an exercise of judicial power to determine the
facts based on the evidence presented and to apply the law based on the established facts, it
cannot perform the ministerial function of canvassing election returns; that the averments
contained in the protest are mere conclusions of law which are inadequate to form a valid
cause of action; that the allegations are not supported by facts; and that the allegations were
merely copied from a pleading in another election protest.
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2003-29275 October 6, 2011 135
RATIO
It is not suggested by any of the parties that questions on the validity, authenticity and
correctness of the SOVs and COCs are outside the Tribunals jurisdiction. The constitutional
function as well as the power and the duty to be the sole judge of all contests relating to the
election, returns and qualification of the President and Vice-President is expressly vested in
the PET, in Section 4, Article VII of the Constitution. Included therein is the duty to correct
manifest errors in the SOVs and COCs. There is no necessity, in our view, to amend the PET
Rules to perform this function within the ambit of its constitutional function.
Protestant merely seeks the correction of manifest errors, that is, errors in the process of
different levels of transposition and addition of votes. Revision of ballots in case of manifest
errors, in these circumstances, might only cause unwarranted delay in the proceedings.
Loren enumerated all the provinces, municipalities and cities where she questions all the
results in all the precincts therein. The protest here is sufficient in form and substantively,
serious enough on its face to pose a challenge to protestees title to his office. In our view, the
instant protest consists of alleged ultimate facts, not mere conclusions of law, that need to be
proven in due time.
Nothing as yet has been proved as to the veracity of the allegations. The protest is only
sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her
case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of
ballots, nothing herein prevents the Tribunal from allowing or including the correction of
manifest errors, pursuant to the Tribunals rule-making power under Section 4, Article VII of
the Constitution.
Dispositive: Loren is ordered to specify, within 10 days from notice, the 3 provinces best
exemplifying the manifest errors alleged in the first part of her protest, and 3 provinces best
exemplifying the frauds and irregularities alleged in the second part of her protest, for the
purpose herein elucidated.
SARMIENTO V. COMELEC | Davide, Jr., 1992
FACTS
Petitioners impugn the 9 challenged resolutions as having been issued with grave abuse of
discretion in that, inter alia, the Commission, sitting en banc, took cognizance of and decided
the appeals without first referring them to any of its Divisions. special civil actions for
certiorari
ISSUE
WON COMELEC should first refer a case to a division before it may decide en banc?
HELD
YES, such resolution is null and void and must be set aside.
RATIO
It is clear from the abovequoted provision of the 1987 Constitution that election cases include
pre-proclamation controversies, and all such cases must first be heard and decided by a
Division of the Commission. The Commission, sitting en banc, does not have the authority to
hear and decide the same at the first instance.
PROF. GISELLA N. DIZON-REYES
 136 Ma. Jessa M. Alvarez
In the COMELEC RULES OF PROCEDURE, pre-proclamation cases are classified as Special Cases
and, in compliance with the above provision of the Constitution, the 2 Divisions of the
Commission are vested with the authority to hear and decide these Special Cases.
Rule 27 thereof governs Special Cases; specifically, Section 9 of the said Rule provides that
appeals from rulings of the Board of Canvassers are cognizable by any of the Divisions to
which they are assigned and not by the Commission en banc.
Sec. 9. Appeals from rulings of Board of Canvassers. (a) A party aggrieved by an oral ruling
of the board of canvassers who had stated orally his intent to appeal said ruling shall, within
five days following receipt of a copy of the written ruling of the board of canvassers, file with
the Commission a verified appeal, furnishing a copy thereof to the board of canvassers and
the adverse party.
(b) The appeal filed with the Commission shall be docketed by the Clerk of Court concerned.
(c) The answer/opposition shall be verified. (d) The Division to which the case is assigned shall
immediately set the case for hearing.
COMELEC en banc acted without jurisdiction, or with grave abuse of discretion, when it
resolved the appeals of petitioners in the abovementioned Special Cases without first
referring them to any of its Divisions. Said resolutions are, therefore, null and void and must
be set aside. Consequently, the appeals are deemed pending before the Commission for
proper referral to a Division.
ZARATE V. COMELEC | Purisima, 1999
FACTS
During the 1996 Sangguniang Kabataan elections, respondent Julian Lallave, Jr. won over the
petitioner, Marivic Zarate, by a single vote. The former garnered a total of forty-six (46) votes
as against the latter's forty-five (45) votes. Accordingly, the Barangay Board of Canvassers
proclaimed respondent Lallave, Jr. the duly elected SK Chairman.
Petitioner lodged his election protest before the Municipal Trial Court of Malasiqui,
Pangasinan, alleging That during the counting, tallying and canvassing of votes for each of the
candidates, respondent-members of the Board of Election Tellers counted, credited and/or
declared valid three (3) or more votes that read "JL" in favor of respondent Julian Lallave, Jr.,
when they should have voided the same or excluded as valid votes.
Municipal Trial Court a quo rendered a decision annulling and setting aside the proclamation
of the private respondent Julian Lallave, Jr. Eight of the original forty-six ballots of the latter
were declared marked, thereby reducing his number of votes to thirty-eight (38). On the
other hand, of petitioner's forty-five (45) votes, one was invalidated. Petitioner Zarate was
therefore, adjudged winner with forty-four (44) votes as against the thirty-eight (38) of
Lallave, Jr.
Private respondent appealed to the Commission on Elections, theorizing that subject five
ballots bearing the initials "JL", should have been credited in his favor considering that such
initials sufficiently identify him as the candidate intended to be voted for as he was the only
one of the three candidates with the initials "JL". He also contended that the ballots marked
were not marked ballots as the names written thereon, "Julian, Jr. de Real", "I Notno Lallave"
and "Nono de Real", sufficiently identify him, the same being his nickname and middle name,
respectively, "de Real" being his middle name (his mother's surname) and he is known in their
locality as "Nono."
COMELEC En Banc came out with its assailed Resolution, annulling and setting aside the
decision a quo and declaring the private respondent, Julian Lallave, Jr., as the duly elected SK
Chairman.
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Marivic Zarate found her way to this Court via the present petition, theorizing that the
respondent Commission on Elections acted wth grave abuse of discretion
ISSUE
WON COMELEC had jurisdiction to decide the case? (SC motu proprio took notice of this issue)
HELD
NO, mere reiteration of the Sarmiento v COMELEC ruling.
RATIO
The appeal interposed by the Lallave to the COMELEC from the decision of the MTC in subject
election case, was not referred to a division of the Commission but was, instead, submitted to
the Commission En Banc, which decided against the petitioner. Such recourse by the private
respondent transgressed Section 3, Subdivision C of Article IX of the Constitution: Commission
on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation controversies. All
such election cases shall be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission en banc.
Court reiterated the Sarmiento v COMELEC ruling
Indisputably then, the COMELEC en banc acted without jurisdiction, or with grave abuse of
discretion, when it resolved the appeals of petitioners in the abovementioned Special Cases
without first referring them to any of its Divisions. Said resolutions are, therefore, null and
void and must be set aside. Consequently, the appeals are deemed pending before the
Commission for proper referral to a Division.
Dispositive: ordered to assign the case to a Division, which is hereby directed to resolve the
same with reasonable dispatch
MUNICIPAL BOARD OF CANVASSERS V. COMELEC | Azcuna, 2003
FACTS
Benzonan, who was a mayoralty candidate in the Municipality of Glan, Sarangani during the
May 14, 2001 elections, sought to declare null and void the canvass conducted by the
Municipal Board of Canvassers (MBC) of Glan, Sarangani and to recall the proclamation of
petitioners Enrique B. Yap, Jr., Venancio S. Wata, Jr., Gildo Villorente, Sr., Ting Musa,
Benedicto L. Ruiz, Ananias S. Emnace, Vannevar B. Alegado, Alito Arnold Carino, Saturnino
Bag, Jr. and Federico J. Tangan, as duly elected Mayor, Vice-Mayor and members of the
Sangguniang Bayan of Glan, Sarangani, respectively.
COMELEC en banc issued a resolution finding that, based on the evidence presented, the
canvass of votes had been conducted in a place other than the previous venue at the
inception of the proceedings to which all were notified. Thus, the proclamations of the
winning candidates were declared null and void and a re-canvass of the election returns was
ordered.
Petitioners filed the present petition for certiorari, under Rule 65 of the Rules of Court.
ISSUE
WON COMELEC had jurisdiction to decide the case? (SC motu proprio took notice of this issue)
HELD
NO, Sarmiento v COMELEC doctrine was again reiterated.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
RATIO
Beginning with Sarmiento v. COMELEC and reiterated in subsequent cases, the Court has
upheld this constitutional mandate (Section 3
(c) of Article IX-C of the Constitution) and consistently ruled that the COMELEC sitting en banc
does not have the requisite authority to hear and decide election cases in the first instance.
This power pertains to the divisions of the Commission and any decision by the Commission
en banc as regards election cases decided by it in the first instance is null and void for lack of
jurisdiction.
It is important to clarify, however, that not all cases relating to election laws filed before the
COMELEC are required to be first heard by a division. Under the Constitution, the COMELEC
exercises both administrative and quasi-judicial powers. The COMELEC en banc can act
directly on matters falling within its administrative powers. It is only when the exercise of
quasi-judicial powers are involved that the COMELEC is mandated to decide cases first in
division, and then, upon motion for reconsideration, en banc.
It is clear that the case at bar is one that involves a pre-proclamation controversy that
requires the exercise of the COMELECs quasi-judicial powers, as the illegality of the
composition and proceedings of the MBC, including the falsification of election returns and
certificate of canvass, were alleged to be in issue. Furthermore, in her comment to the
petition, Benzonan categorically stated that it is not disputed that what is involved here is a
pre-proclamation controversy.
Benzonan filed her pre-proclamation case directly with the COMELEC en banc and that the
case was subsequently decided by the COMELEC, sitting en banc. As aforestated, the
COMELEC en banc is without jurisdiction to decide cases involving these types of
controversies in the first instance. BUT COMELEC was directed to assign the case to a division.
ALVAREZ V. COMELEC | Quisumbing, 2001
FACTS
May 12, 1997, petitioner was proclaimed duly elected Punong Barangay of Doa Aurora,
Quezon City. He received 590 votes while his opponent, private respondent Abad-Sarmiento,
obtained 585 votes. Private respondent filed an election protest claiming irregularities, i.e.
misreading and misappreciation of ballots by the Board of Election Inspectors.
Metropolitan Trial Court ordered the reopening and recounting of the ballots in ten contested
precincts. It subsequently rendered its decision that private respondent won the election.
She garnered 596 votes while petitioner got 550 votes after the recount.
On appeal, the Second Division of the COMELEC ruled that private respondent won over
petitioner. Private respondent, meanwhile, filed a Motion for Execution pending appeal
which petitioner opposed. The COMELEC En Banc denied the Motion for Reconsideration and
affirmed the decision of the Second Division. It granted the Motion for Execution pending
appeal.
Petitioner brought before the Court this petition for Certiorari alleging grave abuse of
discretion on the part of the COMELEC
Petitioner avers that the Commission violated its mandate on "preferential disposition of
election contests" as mandated by Section 3, Article IX-C, 1987 Constitution as well as Section
257, Omnibus Election Code that the COMELEC shall decide all election cases brought before
it within ninety days from the date of submission.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 137
ISSUE/HELD
WON COMELEC committed errors on the abovementioned grounds? NO
RATIO
The records show that petitioner contested the results of 10 election precincts involving
scrutiny of affirmation, reversal, validity, invalidity, legibility, misspelling, authenticity, and
other irregularities in these ballots. COMELEC has numerous cases before it where attention
to minutiae is critical. Considering further the tribunals manpower and logistic limitations, it
is sensible to treat the procedural requirements on deadlines realistically. Overly strict
adherence to deadlines might induce the COMELEC to resolve election contests hurriedly by
reason of lack of material time. In our view this is not what the framers of the Code had
intended since a very strict construction might allow procedural flaws to subvert the will of
the electorate and would amount to disenfranchisement of voters in numerous cases.
When the motion for execution pending appeal was filed, petitioner had a MR before the 2nd
Div. This pending MR suspended the execution of the resolution of the Second Division.
Appropriately then, the Div must act on the MR. Thus, when the Div resolved both
petitioners MR and private respondents motion for execution pending appeal, it did so in the
exercise of its exclusive appellate jurisdiction. The requisites for the grant of execution
pending appeal, [which were all present in this case], are:
(a) there must be a motion by the prevailing party with notice to the adverse party;
(b) there must be a good reason for the execution pending appeal; and
(c) the good reason must be stated in a special order.
Election cases pertaining to barangay elections may be appealed by way of a special civil
action for certiorari. But this recourse is available only when the COMELECs factual
determinations are marred by grave abuse of discretion. No such abuse in the instant case.
From the pleadings and the records, the lower court and the COMELEC meticulously pored
over the ballots reviewed. Because of its fact-finding facilities and its knowledge derived from
actual experience, the COMELEC is in a peculiarly advantageous position to evaluate,
appreciate and decide on factual questions before it. Here, no basis for the allegation that
abuse of discretion or arbitrariness marred the factual findings of the COMELEC. As
previously held, factual findings of the COMELEC based on its own assessments and duly
supported by evidence, are conclusive on this Court, more so in the absence of a grave abuse
of discretion, arbitrariness, fraud, or error of law in the questioned resolutions. Unless any of
these causes are clearly substantiated, the Court will not interfere with the COMELECs
findings of fact.
PROF. GISELLA N. DIZON-REYES
 138 Ma. Jessa M. Alvarez
C. Political Party
VETERANS FEDERATION PARTY V. COMELEC | Panganiban, 2000
FACTS
On May 11, 1998, the first election for party-list representation was held simultaneously with
the national elections.
On June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list representatives
from twelve (12) parties and organizations, which had obtained at least two percent of the
total number of votes cast for the party-list system.
On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and Good Government
Towards Alleviation of Poverty and Social Advancement) filed with the Comelec a "Petition to
Proclaim [the] Full Number of Party-List Representatives provided by the Constitution." It
alleged that the filling up of the twenty percent membership of party-list representatives in
the House of Representatives, as provided under the Constitution, was mandatory. It further
claimed that the literal application of the two percent vote requirement and the three-seat
limit under RA 7941 would defeat this constitutional provision, for only 25 nominees would
be declared winners, short of the 52 party-list representatives who should actually sit in the
House.
Comelec Second Division: granted PAG-ASA's Petition. It also ordered the proclamation of the
38 respondents who, in addition to the 14 already sitting, would thus total 52 party-list
representatives. It disregarded the two percent-vote requirement prescribed under Section
11 (b) of RA 7941. Instead, it identified three "elements of the party-list system." First, "the
system was conceived to enable the marginalized sectors of the Philippine society to be
represented in the House of Representatives." Second, "the system should represent the
broadest sectors of the Philippine society." Third, "it should encourage [the] multi-party
system. It concluded that "the party-list groups ranked Nos. 1 to 51 x x x should have at least
one representative.
The twelve (12) parties and organizations, which had earlier been proclaimed winners
objected to the proclamation of the 38 parties. They contended that (1) under Section 11 (b)
of RA 7941, only parties, organizations or coalitions garnering at least two percent of the
votes for the party-list system were entitled to seats in the House of Representatives; and (2)
additional seats, not exceeding two for each, should be allocated to those which had garnered
the two percent threshold in proportion to the number of votes cast for the winning parties,
as provided by said Section 11.
Comelec en banc: in favor of the respondents. The strict application of the 2% 'threshold'
does not serve the essence and object of the Constitution and the legislature -- to develop
and guarantee a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of Representatives x x x.
Additionally, it "will also prevent this Commission from complying with the constitutional and
statutory decrees for party-list representatives to compose 20% of the House of
Representatives.
ISSUES
(1) WON the 20% allocation for party-list representatives mentioned in Section 5 (2), Article VI of
the Constitution, is mandatory or is it merely a ceiling.
(2) WON the 2% threshold requirement and the three-seat limit provided in Section 11 (b) of RA
7941 are constitutional.
(3) What then is the method of allocation?
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2003-29275 October 6, 2011
HELD/RATIO
(1) IT IS NOT MANDATORY, BUT MERELY PROVIDES A CEILING. THUS, NO NEED TO COMPLETELY
FILL UP THE SEATS AS A RESULT OF THE MATHEMATICAL FORMULA. Clearly, Art. VI Sec. 5 (1) and
(2) of the Constitution makes the number of district representatives the determinant in arriving at
the number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of
the total number of representatives including those under the party-list."
The formula for this is (# of district representatives/0.80) x 0.20 = # of party-list
representatives
Thus, any increase in the number of district representatives, as may be provided by law, will
necessarily result in a corresponding increase in the number of party-list seats.
On the issue of WON the result of the formula should be completely filled up, the Supreme
Court explained that a simple reading of Section 5, Article VI of the Constitution, easily
conveys that Congress was vested with the broad power to define and prescribe the
mechanics of the party-list system of representation.
In the exercise of its constitutional prerogative, Congress enacted RA 7941. The Congress
deemed it necessary to require parties, organizations and coalitions participating in the
system to obtain at least two percent of the total votes cast for the party-list system in order
to be entitled to a party-list seat. Those garnering more than this percentage could have
"additional seats in proportion to their total number of votes. Furthermore, no winning
party, organization or coalition can have more than three seats in the House of
Representatives.
Considering the foregoing statutory requirements, it will be shown presently that Section 5
(2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list
seats in Congress.
On the contention that a strict application of the two percent threshold may result in a
mathematical impossibility, suffice it to say that the prerogative to determine whether to
adjust or change this percentage requirement rests in Congress.
(2) NO. The two percent threshold is consistent not only with the intent of the framers of the
Constitution and the law, but with the very essence of "representation." To have meaningful
representation, the elected persons must have the mandate of a sufficient number of people.
Otherwise, in a legislature that features the party-list system, the result might be the proliferation
of small groups which are incapable of contributing significant legislation, and which might even
pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according
to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio"
to ensure meaningful local representation.
On the Three-Seat-Per-Party Limit. Consistent with the Constitutional Commission's
pronouncements, Congress set the seat-limit to three (3) for each qualified party,
organization or coalition. "Qualified" means having hurdled the two percent vote threshold.
Such three-seat limit ensures the entry of various interest-representations into the
legislature; thus, no single group, no matter how large its membership, would dominate the
party-list seats, if not the entire House.
(3) a. Rank all the participating parties, organizations and coalitions from the highest to the lowest
based on the number of votes they each received. Then the ratio for each party is computed by
dividing its votes by the total votes cast for all the parties participating in the system. All parties
with at least two percent of the total votes are guaranteed one seat each. Only these parties shall
be considered in the computation of additional seats. The party receiving the highest number of
votes shall thenceforth be referred to as the first party.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
b. Determine the number of seats the first party is entitled to, in order to be able to compute that
for the other parties. Since the distribution is based on proportional representation, the number of
seats to be allotted to the other parties cannot possibly exceed that to which the first party is
entitled by virtue of its obtaining the most number of votes.
The other qualified parties will always be allotted less additional seats than the first party for two
reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2)
the formula does not admit of mathematical rounding off, because there is no such thing as a
fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent
allocation.
Formula for Determining Additional Seats for the First Party: Number of votes of first party/Total
votes for party-list system=Proportion of votes of first party relative to total votes for party-list
system.
SC adopted a six percent bench mark, because the first party is not always entitled to the maximum
number of additional seats. Likewise, it would prevent the allotment of more than the total number
of available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank
and are thus entitled to three seats each.
Note that the above formula will be applicable only in determining the number of additional seats
the first party is entitled to. It cannot be used to determine the number of additional seats of the
other qualified parties.
c. Solve for the number of additional seats that the other qualified parties are entitled to, based on
proportional representation.
Formula for Additional Seats of Other Qualified Parties: (No. of votes of concerned party/No. of
votes of the first party)xNo. Of additional seats allocated to first party=Additional seats for
concerned party
Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of
votes for the other party to that for the first one is multiplied by zero. The end result would be zero
additional seat for each of the other qualified parties as well.
ANG BAGONG BAYANI V. COMELEC | Panganiban, 2001
FACTS
Petitions under Rule 65 of the Rules of Court were filed by the petitioners, challenging
Omnibus Resolution No. 3785 issued by the COMELEC on March 26, 2001.
This Resolution approved the participation of 154 organizations and parties, including
respondents (LDP, LAKAS-NUCD, NDP, etc.), in the 2001 party-list elections.
Petitioners seek the disqualification of private respondents, arguing mainly that the party-list
system was intended to benefit the marginalized and underrepresented; not the mainstream
political parties, the non-marginalized or overrepresented.
ISSUES
(1) WON political parties may participate in the party-list elections.
(2) WON the party-list system is exclusive to marginalized and underrepresented sectors and
organizations.
(3) WON the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution
No. 3785.
HELD/RATIO
(1) YES. Under the Constitution and RA 7941, private respondents cannot be disqualified from the
party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the
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2003-29275 October 6, 2011 139
Constitution provides that members of the House of Representatives may be elected through a
party-list system of registered national, regional, and sectoral parties or organizations.
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be
registered under the party-list system.
During the deliberations in the Constitutional Commission, it was stated that the purpose of
the party-list provision was to open up the system, in order to give a chance to parties that
consistently place third or fourth in congressional district elections to win a seat in Congress.
For its part, Section 2 of RA 7941 also provides for a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, x x x. Section 3 expressly
states that a party is either a political party or a sectoral party or a coalition of parties.
More to the point, the law defines political party as an organized group of citizens
advocating an ideology or platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as candidates for public office.
Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties
in the party-list system.
(2) YES. That political parties may participate in the party-list elections does not mean, however,
that any political party -- or any organization or group for that matter -- may do so. The requisite
character of these parties or organizations must be consistent with the purpose of the party-list
system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution.
(1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous
cultural communities, women, youth, and such other sectors as may be provided by law, except the
religious sector. (Emphasis supplied.)
The purpose of the party-list provision was to give genuine power to our people in
Congress.
The foregoing provision on the party-list system is not self-executory. It is, in fact,
interspersed with phrases like in accordance with law or as may be provided by law; it
was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA
7941 was enacted. It laid out the statutory policy in this wise:
SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the
election of representatives to the House of Representatives through a party-list system of
registered national, regional and sectoral parties or organizations or coalitions thereof, which will
enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a whole, to
become members of the House of Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the broadest possible representation
of party, sectoral or group interests in the House of Representatives by enhancing their chances to
compete for and win seats in the legislature, and shall provide the simplest scheme possible.
PROF. GISELLA N. DIZON-REYES
 140 Ma. Jessa M. Alvarez
The key words in this policy are proportional representation, marginalized and
underrepresented, and lack *of] well-defined constituencies.
Proportional representation here does not refer to the number of people in a particular
district, because the party-list election is national in scope. Neither does it allude to
numerical strength in a distressed or oppressed group. Rather, it refers to the representation
of the marginalized and underrepresented as exemplified by the enumeration in Section 5
of the law; namely, labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals.
However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list
organization or party must factually and truly represent the marginalized and
underrepresented constituencies mentioned in Section 5. Concurrently, the persons
nominated by the party-list candidate-organization must be Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties.
Finally, lack of well-defined constituenc*y+ refers to the absence of a traditionally
identifiable electoral group, like voters of a congressional district or territorial unit of
government. Rather, it points again to those with disparate interests identified with the
marginalized or underrepresented.
While the enumeration of marginalized and underrepresented sectors in Sec. 5 of RA 7941 is
not exclusive, it demonstrates the clear intent of the law that not all sectors can be
represented under the party-list system.
(3) REMANDED FOR COMELEC TO DETERMINE WON THE 154 PARTIES AND ORGANIZATIONS
ALLOWED TO PARTICIPATE IN THE PARTY-LIST ELECTIONS COMPLY WITH THE REQUIREMENTS OF
THE LAW. Comelec must follow these guidelines:
[1] The political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show --
through its constitution, articles of incorporation, bylaws, history, platform of government and
track record -- that it represents and seeks to uplift marginalized and underrepresented sectors.
Verily, majority of its membership should belong to the marginalized and underrepresented. And it
must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of
such sectors.
[2] While even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives. In other words, while they are not disqualified merely on the ground
that they are political parties, they must show, however, that they represent the interests of the
marginalized and underrepresented.
[3] In view of the objections directed against the registration of Ang Buhay Hayaang Yumabong,
which is allegedly a religious group, the Court notes the express constitutional provision that the
religious sector may not be represented in the party-list system. The prohibition is on any religious
organization registering as a political party. I do not see any prohibition here against a priest
running as a candidate. That is not prohibited here; it is the registration of a religious sect as a
political party.
[4] A party or an organization must not be disqualified under Sec 6 of RA 7941, which enumerates
the grounds for disqualification: (1) It is a religious sect or denomination, organization or
association organized for religious purposes; (2) It advocates violence or unlawful means to seek its
goal; (3) It is a foreign party or organization;
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2003-29275 October 6, 2011
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through third
parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares
untruthful statements in its petition; (7) It has ceased to exist for at least 1 year; or (8) It fails to
participate in the last 2 preceding elections or fails to obtain at least 2% of the votes cast under the
party-list system in the 2
preceding elections for the constituency in which it has registered. NB Par 5, which disqualifies a
party or group for violation of or failure to comply with election laws and regulations: These laws
include
Sec 2 of RA 7941, which states that the party-list system seeks to enable Filipino citizens belonging
to marginalized and underrepresented sectors, organizations and parties x x x to become members
of the House of Representatives. A party or an
organization, therefore, that does not comply with this policy must be disqualified.
[5] The party or organization must not be an adjunct of, or a project organized or an entity funded
or assisted by, the government. By the very nature of the party-list system, the party or
organization must be a group of citizens, organized by citizens and operated by citizens. It must be
independent of the government. The participation of the government or its officials in the affairs of
a party-list candidate is not only illegal and unfair to other parties, but also deleterious to the
objective of the law: to enable citizens belonging to marginalized and underrepresented sectors
and organizations to be elected to the House of Representatives.
[6] The party must not only comply with the requirements of the law; its nominees must likewise
do so. SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the
Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1)
year immediately preceding the day of the election, able to read and write, a bona fide member of
the party or organization which he seeks to represent for at least ninety (90) days preceding the
day of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election. Any youth sectoral representative who attains
the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his
term.
[7] Not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. Under Sec 2 of RA 7941, the nominees must
be Filipino citizens who belong to marginalized and underrepresented sectors, organizations and
parties. Surely, the interests of the youth cannot be fully represented by a retiree; neither can
those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the
State policy to give genuine representation to the marginalized and underrepresented.
[8] As previously discussed, while lacking a well-defined political constituency, the nominee must
likewise be able to contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole. Senator Lina explained during the bicameral committee proceedings
that the nominee of a party, national or regional, is not going to represent a particular district.
BANAT V. COMELEC | Carpio, 2009
FACTS
The 14 May 2007 elections included the elections for the party-list representatives. The
COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by
the Constitution. BANAT filed its petition because "[t]he Chairman and the Members of the
[COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty
bound to and shall implement the Veterans ruling, that is, would apply the Panganiban
formula in allocating party-list seats."
COMELEC, sitting as the NBC, proclaimed thirteen (13) parties as winners in the party-list
elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle Against
Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric
Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon
Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis,
Alliance of Rural Concerns (ARC), and Abono.
COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the
additional seats allocated to the appropriate parties.
ISSUE/HELD
(1) WON the twenty percent allocation for party-list representatives provided in Section 5(2),
Article VI of the Constitution is mandatory. NO, permissive.
(2) WON the three-seat limit provided in Section 11(b) of RA 7941 is constitutional. YES.
(3) WON the two percent threshold and "qualifier" votes prescribed by the same Section 11(b) of
RA 7941 is constitutional. NO.
(4) How shall the party-list representatives be allocated?
RATIO
(1) NO. Reiterating Veterans doctrine:
First, the twenty percent allocation the combined number of all party-list congressmen shall not
exceed twenty percent of the total membership of the House of Representatives, including those
elected under the party list; Second, the two percent threshold only those parties garnering a
minimum of two percent of the total valid votes cast for the party- list system are qualified to
have a seat in the House of Representatives;
Third, the three-seat limit each qualified party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional
seats; Fourth, proportional representation the additional seats which a qualified party is entitled
to shall be computed in proportion to their total number of votes.
However, because the formula in Veterans has flaws in its mathematical interpretation of the
term proportional representation, this Court is compelled to revisit the formula for the
allocation of additional seats to party-list organizations.
Number of Party-List Representatives: The Formula Mandated by the Constitution
Section 5(1), Article VI of the Constitution states that the House of Representatives shall be
composed of not more than two hundred and fifty members, unless otherwise fixed by law.
The House of Representatives shall be composed of district representatives and party-list
representatives. The Constitution allows the legislature to modify the number of the
members of the House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list
representatives to the total number of representatives. We compute the number of seats
available to party-list representatives from the number of legislative districts. On this point,
we do not deviate from the first formula in Veterans.
Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the 2%
Threshold and the Three-Seat Cap
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There are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of
additional seats under the Party-List System. Veterans produced the First Party Rule, and
Justice VV Mendozas dissent in Veterans presented Germanys Niemeyer formula as an
alternative.
The Constitution left to Congress the determination of the manner of allocating the seats for
party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section
11 and Section 12.
BANAT presents two interpretations through three formulas to allocate party-list
representative seats. [1] The first interpretation allegedly harmonizes the provisions of
Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. [2] The second
interpretation presented by BANAT assumes that the 2% vote requirement is declared
unconstitutional, and apportions the seats for party-list representatives by following Section
12 of R.A. No. 7941
BANAT used two formulas to obtain the same results: one is based on the proportional
percentage of the votes received by each party as against the total nationwide party-list
votes, and the other is by making the votes of a party-list with a median percentage of votes
as the divisor in computing the allocation of seats. 34 party-list seats will be awarded under
BANATs second interpretation.
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original
2-4-6 formula and theVeterans formulafor systematically preventing all the party-list seats
from being filled up. They claim that both formulas do not factor in the total number of seats
alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-
seat cap, but accept the 2% threshold. After determining the qualified parties, a second
percentage is generated by dividing the votes of a qualified party by the total votes of all
qualified parties only. The number of seats allocated to a qualified party is computed by
multiplying the total party-list seats available with the second percentage. There will be a first
round of seat allocation, limited to using the whole integers as the equivalent of the number
of seats allocated to the concerned party-list. After all the qualified parties are given their
seats, a second round of seat allocation is conducted. The fractions, or remainders, from the
whole integers are ranked from highest to lowest and the remaining seats on the basis of this
ranking are allocated until all the seats are filled up.
What does the law provide anent the allocation?
Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the
highest to the lowest based on the number of votes they garnered during the elections.
The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list system
shall be entitled to one seat each. This clause guarantees a seat to the two- percenters. In
Table 2 below, we use the first 20 party-list candidates for illustration purposes. The
percentage of votes garnered by each party is arrived at by dividing the number of votes
garnered by each party by 15,950,900, the total number of votes cast for all party-list
candidates.
The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in proportion to their total
number of votes. This is where petitioners and intervenors problem with the formula in
Veterans lies. Veterans interprets the clause in proportion to their total number of votes to
be in proportion to the votes of the first party. This interpretation is contrary to the express
language of R.A. No. 7941.
In computing the allocation of additional seats, the continued operation of the two percent
threshold for the distribution of the additional seats as found in the second clause of Section
PROF. GISELLA N. DIZON-REYES
 142 Ma. Jessa M. Alvarez
11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold
makes it mathematically impossible to achieve the maximum number of available party list
seats when the number of available party list seats exceeds 50. The continued operation of
the two percent threshold in the distribution of the additional seats frustrates the attainment
of the permissive ceiling that 20% of the members of the House of Representatives shall
consist of party-list representatives.
We therefore strike down the two percent threshold only in relation to the distribution of the
additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full implementation of Section
5(2), Article VI of the Constitution and prevents the attainment of the broadest possible
representation of party, sectoral or group interests in the House of Representatives.
In determining the allocation of seats for party-list representatives under Section 11 of R.A.
No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on
the number of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one guaranteed seat each.
3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be
entitled to additional seats in proportion to their total number of votes until all the additional seats
are allocated.
4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer be included because
they have already been allocated, at one seat each, to every two-percenter. Thus, the
remaining available seats for allocation as additional seats are the maximum seats reserved
under the Party List System less the guaranteed seats. Fractional seats are disregarded in the
absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.
The percentage of votes garnered by each party-list candidate is arrived at by dividing the
number of votes garnered by each party by 15,950,900, the total number of votes cast for
party-list candidates. There are two steps in the second round of seat allocation. First, the
percentage is multiplied by the remaining available seats, 38, which is the difference between
the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of
the two-percenters. The whole integer of the product of the percentage and of the remaining
available seats corresponds to a partys share in the remaining available seats. Second, we
assign one party-list seat to each of the parties next in rank until all available seats are
completely distributed. We distributed all of the remaining 38 seats in the second round of
seat allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled.
Participation of Major Political Parties in Party-List Elections
RA 7941 provided the details for the concepts put forward by the Constitutional Commission.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating
in the party-list system. On the contrary, the framers of the Constitution clearly intended the
major political parties to participate in party-list elections through their sectoral wings. In fact,
the members of the Constitutional Commission voted down, 19-22, any permanent sectoral
seats, and in the alternative the reservation of the party-list system to the sectoral groups.
In defining a party that participates in party-list elections as either a political party or a
sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate
in the party-list elections. Excluding the major political parties in party-list elections is
manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No.
7941. This Court cannot engage in socio-political engineering and judicially legislate the
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2003-29275 October 6, 2011
exclusion of major political parties from the party-list elections in patent violation of the
Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state
that major political parties are allowed to establish, or form coalitions with, sectoral
organizations for electoral or political purposes. There should not be a problem if, for
example, the Liberal Party participates in the party-list election through the Kabataang Liberal
ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus
organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista
Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk
wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the
same for the urban poor.
The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:
Qualifications of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately preceding
the day of the elections, able to read and write, bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of the election. In case of a
nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the
age of 30 during his term shall be allowed to continue until the expiration of his term.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the number of the members of
the House of Representatives to Congress: The House of Representatives shall be composed
of not more than two hundred and fifty members, unless otherwise fixed by law, x x x. The
20% allocation of party-list representatives is merely a ceiling; party-list representatives
cannot be more than 20% of the members of the House of Representatives. However,we
cannot allow the continued existence of a provision in the law which will systematically
prevent the constitutionally allocated 20% party-list representatives from being filled. The
three-seat cap, as a limitation to the number of seats that a qualified party-list organization
may occupy, remains a valid statutory device that prevents any party from dominating the
party-list elections.
By a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major
political parties from participating in the party- list elections, directly or indirectly.
D. Certificate of Candidacy
GADOR V. COMELEC | Fernandez, 1980
FACTS
Petition for mandamus alleges that the petitioner, AMADO F. GADOR, is a candidate for the
Office of Mayor of the City of Ozamiz as Independent; that he filed his certificate of candidacy
with the Election Registrar of Ozamiz City for Mayor on January 7, 1980; the petitioner wired
the Chairman of the Commission of Election informing him of the filing of the certificate of
candidacy and at the same time requesting him to release the approval of the said certificate;
the petitioner caused the Election Registrar of Ozamiz City to wire the Chairman, Commission
of Elections, reiterating the information that the petitioner had filed a certificate of
candidacy; that he was already in the thick of campaigns and was asking about the status of
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Ma. Jessa M. Alvarez
his candidacy; that in view of the President's announcement that the resolution of the
respondent, Commission on Elections, for the extension of time for filing certificates of
candidacy from January 4 to January 10 had been denied, there is a strong probability that the
petitioner's name as candidate for Mayor may not be included in the list of candidates to be
voted which is to be printed soon and distributed in Ozamiz City; and that on ground of
fairness, principles of equity and for the best interest of the people of Ozamiz City; judgment
should be rendered commanding the respondent, Commission of Elections, to immediately
include the petitioner in the list of candidates for Mayor.
ISSUE
WON the certificate of candidacy of the petitioner which was filed on January 7, 1980 is valid.
HELD/RATIO
NO. it is void for having been filed beyond the specified deadline under Sec. 7, BP Blg. 52.
Section 7, BP Blg. 52, provides that The sworn certificate of candidacy shag be filed in
triplicate not later than January 4, 1980. It is a fact admitted by the petitioner that the
President had not extended the period within which to file the certificate of candidacy. This
Court is powerless to grant the remedy prayed for in the petition. In as much as the election is
only eight (8) days away, it is to the interest of all concerned, specially the petitioner himself,
that this matter be resolved immediately.
CONQUILLA V. COMELEC | Bellosillo, 2000
FACTS
On 27 March 1998 private respondent EDUARDO A. ALARILLA filed his Certificate of Candidacy
with the Municipal Election Officer of Meycauayan, Bulacan, without however indicating the
elective position which he was aspiring for.
However, attached thereto and filed with his Certificate of Candidacy was ALARILLAs
Certificate of Nomination and Acceptance:
I , JOSE DE VENECIA, JR., by virtue of the powers and authority vested in me by the Constitution and
By-Laws of the Lakas National Union of Christian Democrats-United Muslim Democrats of the
Philippines (LAKAS NUCD-UMDP) as its Secretary-General, hereby nominate:
EDUARDO A. ALARILLA as the Partys official candidate in the May 11, 1998 elections for the
position of MUNICIPAL MAYOR of the Municipality of Meycauayan in the Fourth District of Bulacan.
xxx xxx xxx
CONQUILLA filed with the COMELEC a Petition for Cancellation of Certificate of Candidacy and
Disqualification, praying that private respondent ALARILLA's Certificate of Candidacy be
expunged and cancelled on the ground that it was null and void for failing to specify the
elective position he was running for and, consequently, he be disqualified to run for any
position n Meycauayan, Bulacan.
During the pendency of SPA the Board of Canvassers proclaimed ALARILLA as the Mayor-elect
of Meycauayan, Bulacan.
CONQUILLA filed an "Urgent Motion to Annul the Proclamation and/or to Suspend the Effects
of Proclamation" of ALARILLA
On 21 May 1998 the First Division of COMELEC dismissed SPA. It ruled that ALARILLA's failure
to specify the public office he was seeking in his Certificate of Candidacy was not a fatal
defect because the required information was supplied in the Certificate of Nomination and
Acceptance attached to his Certificate of Candidacy. In addition, the First Division ruled that
ALARILLA was able to correct his omission by filing an Amended Certificate of Candidacy on 21
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April 1998 clearly indicating therein that he was running for the position of Municipal Mayor,
Meycauayan, Bulacan.
CONQUILLA filed an "Appeal which was was treated as a motion for reconsideration under
Rule 19 of the Comelec Rules of Procedure and accordingly certified to the COMELEC En Banc
pursuant to Sec. 5 thereof.
COMELEC En Banc denied the motion for reconsideration for being pro-forma and for late
filing. COMELEC ruled that under Sec. 9, Rule 19, of the Comelec Rules of Procedure A motion
to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5)
days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution
or implementation of the decision, resolution, order or ruling. CONQUILLA had only until 31
March 1998, the "Appeal with Urgent Motion for Annulment and/or Suspension of
Proclamation with Prayer for Issuance of a Restraining Order" was late having been filed on 1
June 1998.
ISSUE
WON ALARILLA's failure to specify the public office he was seeking in his Certificate of Candidacy
was a fatal defect.
HELD/RATIO
NO. The information omitted in the Certificate of Candidacy was supplied in the Certificate of
Nomination and Acceptance attached thereto specifying that ALARILLA was nominated as the Lakas
NUCD-UMDPs official candidate for the position of Municipal Mayor of Meycauayan, Bulacan, and
that such nomination had been accepted by ALARILLA. As the COMELEC itself has clarified,
certificates of nomination and acceptance are procedurally required to be filed with, and form an
integral part of, the certificates of candidacy of official candidates of political parties.
ALARILLA timely rectified the deficiency in his original Certificate of Candidacy by filing an
Amended Certificate on 21 April 1998 specifically stating that he was running for the position
of Municipal Mayor of Meycauayan, Bulacan, in the 11 May 1998 elections.
Alialy v. Commission on Elections -- this Court ruling on the effectiveness of the amended
certificate of candidacy filed to correct the defect declared that the filing of an amended
certificate even after the deadline but before the election was substantial compliance with
the law which cured the defect.
x.....when the Election Law does not provide that a departure from a prescribed form will be
fatal and such departure has been due to an honest mistake or misinterpretation of the
Election Law on the part of him who was obligated to observe it, and that such departure has
not been used as a means for fraudulent practices x x x the law will be held directory and such
departure will be considered a harmless irregularity
For inconsequential deviations which cannot affect the result of the election, or deviations
from provisions intended primarily to secure timely and orderly conduct of elections, a
directory construction is generally applied.
The purpose in requiring a certificate of candidacy (which is to enable the voters to know
before the elections the candidates among whom they are to make a choice) was deemed
satisfied not only by the Amended Certificate of Candidacy filed before the elections but also
by the Certified List of Candidates issued by the Office of the Election Officer, Meycauayan,
Bulacan, indubitably listing therein EDUARDO A. ALARILLA as candidate for the position of
"mayor" of said municipality.
Finally, it cannot be denied that ALARILLA was elected Mayor of Meycauayan, Bulacan, in the
11 May 1998 elections. If substantial compliance with the Election Law should give way to a
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 144 Ma. Jessa M. Alvarez 2003-29275
mere technicality, the will of the electorate, as far as ALARILLA is concerned, would be
frustrated.
The motion for reconsideration was not filed late on 1 June 1998 considering that 31 May
1998 was a Sunday, hence, he had until the next working day, which was 1 June 1998, within
which to ask for reconsideration.
GO V. COMELEC | Pardo, 2001
FACTS
Petitioner MA. CATALINA L. GO, is the incumbent representative of the Fifth District, province
of Leyte, whose term of office will expire at noon on 30 June 2001.
On 27 February 2001, petitioner filed with the municipal election officer of the municipality of
Baybay, Leyte, a certificate of candidacy for mayor of Baybay, Leyte.
On 28 February 2001, at 11:47 p.m., petitioner filed with the provincial election supervisor of
Leyte, with office at Tacloban City, another certificate of candidacy for governor of the
province of Leyte. Simultaneously therewith, she attempted to file with the provincial
election supervisor an affidavit of withdrawal of her candidacy for mayor of the municipality
of Baybay, Leyte. However, the provincial election supervisor of Leyte refused to accept the
affidavit of withdrawal and suggested that, pursuant to a COMELEC resolution, she should file
it with the municipal election officer of Baybay, Leyte where she filed her certificate of
candidacy for mayor.
At that late hour, with only minutes left to midnight, the deadline for filing certificates of
candidacy or withdrawal thereof, and considering that the travel time from Tacloban to
Baybay was two (2) hours, petitioner decided to send her affidavit of withdrawal by fax to her
father at Baybay, Leyte and the latter submitted the same to the office of the lection officer of
Baybay, Leyte at 12:28 a.m., 01 March 2001. On the same day, at 1:15 p.m., the election
officer of Baybay, Leyte, received the original of the affidavit of withdrawal.
respondent Montejo filed with the provincial election supervisor of Leyte, at Tacloban City a
petition to deny due course and/or to cancel the certificates of candidacy of petitioner.
Respondent Antoni filed a similar petition to disqualify petitioner. The petitions were based
on the ground that petitioner filed certificates of candidacy for two positions, namely, that for
mayor of Baybay, Leyte, and that for governor of Leyte, thus, making her ineligible for both.
Atty. Manuel L. Villegas, the provincial election supervisor of Leyte, by 1st indorsement,
referred the cases to the Commission on Election, Manila, Law Department, on the ground
that he was inhibiting himself due to his prior action of refusing to receive the petitioners
affidavit of withdrawal tendered simultaneously with the filing of the certificate of candidacy
for governor.
Law Department, COMELEC, under Director Jose P. Balbuena, made a study of the cases
without affording petitioner an opportunity to be heard or to submit responsive pleadings.
they submitted a report and recommendation to the COMELEC en banc To give due course to
the petition of Atty. Felipe V. Montejo and Atty. Arvin V. Antonio and To direct the Provincial
Election Supervisor of Leyte and the Election Officer to delete/cancel the name of CATALINA
LOPEZ LORETO-GO from the certified list of candidates for Governor of Leyte and Mayoralty
candidates of Baybay, Leyte.
COMELEC en banc approved the recommendation of the Director, Law Department and
adopted the resolution in question.
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October 6, 2011
ISSUE
(1) WON GO is disqualified to be candidate for governor of Leyte and mayor of Baybay, Leyte
because she filed certificates of candidacy for both positions.
(2) WON there a valid withdrawal of the certificate of candidacy for municipal mayor of Baybay,
Leyte?
(a) Must the affidavit of withdrawal be filed with the election officer of the place where
the certificate of candidacy was filed?
(b) May the affidavit of withdrawal be validly filed by fax?
HELD/RATIO
(1) NO. SEC. 73. Certificate of candidacy.- No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein. A person who
has filed a certificate of candidacy may, prior to the election, withdraw the same by
submitting to the office concerned a written declaration under oath. No person shall be
eligible for more than one office to be filled in the same election, and if he files his certificate
of candidacy for more than one office, he shall not be eligible for any of them. However,
before the expiration of the period for the filing of certificates of candidacy, the person who
has filed more than one certificate of candidacy may declare under oath the office for which
he desires to be eligible and cancel the certificate of candidacy for the other office or offices.
(2) YES. The filing of the affidavit of withdrawal with the election officer of Baybay, Leyte, at
12:28 a.m., 1 March 2001 was a substantial compliance with the requirement of the law.
petitioner's withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was
effective for all legal purposes, and left in full force her certificate of candidacy for governor.
There is nothing in this Section which mandates that the affidavit of withdrawal must be filed
with the same office where the COC to be withdrawn was filed. Thus, it can be filed directly
with the main office of the COMELEC, the office of the regional election director concerned,
the office of the provincial election supervisor of the province to which the municipality
involved belongs, or the office of the municipal election officer of the said municipality.
While it may be true that Sec 12 of COMELEC Res No. 3253-A requires that the withdrawal be
filed before the election officer of the place where the certificate of candidacy was filed, such
requirement is merely directory, and is intended for convenience. It is NOT mandatory or
jurisdictional. An administrative resolution can not contradict, much less amend or repeal a
law, or supply a deficiency in the law. Hence, the filing of petitioner's affidavit of withdrawal
of candidacy for mayor of Baybay with the provincial election supervisor of Leyte sufficed to
effectively withdraw such candidacy. The COMELEC thus acted with grave abuse of discretion
when it declared petitioner ineligible for both positions for which she filed certificates of
candidacy.
DE GUZMAN V. BOARD OF CANVASSERS | Villamor, 1925
FACTS
This proceeding is for the purpose of having this court issue a mandamus addressed to the
provincial board of canvassers of the Province of La Union, ordering it to meet and reject and
annul all the votes adjudicated to the respondent Juan T. Lucero, and after correcting the
election return, to proclaim and certify the petitioner, TOMAS DE GUZMAN, elected for the
office of provincial governor of La Union.
Petition alleges that: The provincial board of canvassers after gathering all the election
returns, found that the petitioner had obtained 7,662 votes and the respondent Juan T.
Lucero 8,771 votes; the original of the certificate of candidacy of the respondent Juan T.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Lucero was not duly sworn to, as required by law, while the certificate of candidacy of the
petitioner Tomas de Guzman was prepared and filed in accordance with the requirements of
the law; and that in view of these facts the respondent Juan T. Lucero has not, and could not
have, been a legal candidate for the office in question, and could not have been certified
elected for the office of provincial governor.
ISSUE
WON Lucero has filed a COC in accordance with the law, in case he has not, WON the writ applied
for should be issued.
HELD/RATIO
NO. He failed TO comply with the law. HOWEVER, the people has spoken. Technicalities cannot
defeat them.
Under the law then in force, the meaning of the phrase a certificate of candidacy duly
verified, citing from Viola vs. Court of First
Instance of Camarines Sur and Adolfo, to the effect that ... only when the corresponding
receipt has been issued and the certificate filed can it be presumed that it has been duly
verified and filed. The provincial secretary having issued the proper receipt for the filing of
said certificate, together with a statement of the expenses attached thereto (Exhibit 2). It,
therefore, seems clear that the respondent filed his certificate in accordance with the Spanish
text of Sec 404 of the Election Law, as amended by Sec 3 of Act 3030.
Is the formality of oath (must be sworn to) mandatory?
Luceros certificate was defective, lacking the formality of the oath. This irregularity might
have justified the elimination of his name as a legal candidate for the office of provincial
governor, if an objection on the part of the de Guzman had been made in due time. Yet we
are of the opinion that this irregularity does not invalidate the election for the fundamental
reason that after it was proven by the count of the votes that Lucero had obtained the
majority of the legal votes, the will of the people cannot be frustrated by a technicality
consisting in that his certificate of candidacy had not been properly sworn to.
Citing Gardiner v Romulo: The provisions of the Election Law declaring that a certain
irregularity in an election procedure is fatal to the validity of the ballot or of the returns, or
when the purpose and spirit of the law would be plainly defeated by a substantial departure
from the prescribed method, are mandatory. When the Election Law does not provide that a
departure from a prescribed form will be fatal and such departure has been due to an honest
mistake or misinterpretation of the Election Law on the part of him who was obligated to
observe it, and such departure has not been used as a means for fraudulent practices or for
the intimidation of voters, and it is clear that there has been a free and honest expression of
the popular will, the law will be held directory and such departure will be considered a
harmless irregularity.
Citing Lino Luna vs. Rodriguez: It has been announced in many decisions that the rules and
regulations, for the conduct of elections, are mandatory before the election, but when it is
sought to enforce them after the election, they are held to be directory only, if that is
possible, especially where, if they are held to be mandatory, innocent voters will be deprived
of their votes without any fault on their part. The various and numerous provisions of the
Election Law were adopted to assist the voters in their participation in the affairs of the
government and not to defeat that object. When the voters have honestly cast their ballots,
the same should not be nullified simply because the officers appointed under the law to
direct the election and guard the purity of the ballot have not done their duty. The law
provides a remedy, by criminal action, against them. They should be prosecuted criminally,
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2003-29275 October 6, 2011 145
and the will of the honest voter, as expressed through his ballot, should be protected and
upheld.
The legal provision here in question is mandatory and non-compliance therewith before the
election would have been fatal to the recognition of Luceros status as candidate. But after
the people have expressed their will honestly, the result of the election cannot be defeated
by the fact that the respondent who was certified by the provincial secretary to be a legal
candidate for the office of provincial governor, has not sworn to his certificate of candidacy.
The situation is somewhat like that of a voter placing his ballot in the box. There are certain
requirements of the law, affecting the vote, which have been considered by this court as of a
mandatory character until the ballot is placed in the ballot box; but we have held that the
validity of the count cannot be questioned, nor the vote stricken out after the ballots had
been placed in the ballot boxes, simply for non-compliance with such provisions. After the
termination of the election, public interest must be made to prevail over that of the defeated
candidate, and we cannot declare that Luceros election was illegal, and that he should quit
the office for which he was elected, simply by reason of a defect in his certificate of
candidacy, which defect could have been corrected before the election, but which cannot be
cured after its termination, and after the result of the election was published by the provincial
board of canvassers, respondents herein.
VILLAROSA V. HRET | Davide, 2000
FACTS
HRET Case an election protest case filed by private respondent Ricardo V. Quintos against
petitioner Amelita C. Villarosa.
VILLAROSA and QUINTOS were the only candidates for the office of Representative of the
Lone Legislative District of Occidental Mindoro in the 11 May 1998 synchronized national and
local elections.
Provincial Board of Canvassers proclaimed VILLAROSA as the winning candidate.
QUINTOS filed an election protest against VILLAROSA contesting the results of the election in
all the 882 precincts in the eleven municipalities of Occidental Mindoro on the following
grounds: (1) the ballots were misread and counted in favor of protestee; (2) there was
rampant substitute voting, i.e., persons other than the registered voters voted; (3) violence
and intimidation were committed by protestee and her followers against known supporters of
protestant to enhance protestees candidacy; 4) previously prepared ballots for the protestee
were deposited in the ballot boxes; and (5) illiterate Mangyan voters voting for protestant
were assisted by self-appointed assistors of protestee, who wrote JTV on the ballots
contrary to the instruction of said illiterate voters.
Protestee is wife of JOSE T. VILLAROSA, who was Representative of the District in question for
two terms, the last of which ended on June 30, 1998; in his certificate of candidacy for the
election of May 8, 1995, JOSE T. VILLAROSA wrote as his nickname or stage name: JOE-JTV.
In her certificate of candidacy, Protestee wrote JTV as her nickname/stage name.
In her affidavit dated April 16, 1998 sent to the Office of the Provincial Election Supervisor,
Occidental Mindoro, Protestee asked that she be allowed to insert in her certificate of
candidacy the name GIRLIE such that her name should read in full as MA. AMELITA Girlie C.
VILLAROSA as in every barangay of the Province of Occidental Mindoro she is known as
Girlie Villarosa
Atty. Dan Restor of San Jose, Occidental Mindoro, had filed with the COMELEC a petition to
invalidate/cancel JTV as the official nickname of the protestee; the petition was docketed as
Election Matter No. 98-044
PROF. GISELLA N. DIZON-REYES
 146 Ma. Jessa M. Alvarez
COMELEC en banc unanimously granted the petition in Election Matter No. 98-044; it ruled
that the Protestee cannot use the nickname JTV considering that the same is not her
nickname to which she is popularly known. Protestees motion to reconsider the resolution
was denied by the COMELEC.
During the revision, ballots bearing JTV, JTB, GTV, GTB, Jitivi, Gitivi, Jitibi and
Gitibi on the line for Representative were classified as ballots for VILLAROSA, which the
revisors of QUINTOS objected to. Likewise, ballots bearing Girlie on the line for
Representative were classified as votes for VILLAROSA.
HRET conducted an oral argument and heard QUINTOS and VILLAROSA on the issue WON THE
JTV VOTES SHOULD BE COUNTED IN FAVOR OF PROTESTEE AMELITA C. VILLAROSA.
HRET promulgated Resolution wherein it resolved to PROCEED with the revision of the
ballots in the remaining 75%; and DIRECT the Secretariat to continue with the revision.
Because of the ruling that JTV votes or votes consisting of variations of JTV are stray
votes, VILLAROSA lost 1,842 votes in the 75% counter-protested precincts and 4,336 votes in
the 25% pilot precincts.
HRET, by a vote of 5-4, (1) ruled that QUINTOS obtained 51,465 votes, while VILLAROSA
garnered 48,617 votes; (2) declared QUINTOS as the duly elected Representative of the Lone
District of Occidental Mindoro and (3) ordered VILLAROSA to vacate her office at the House of
Representatives.
VILLAROSA filed a petition for certiorari.
ISSUE
WON HRET committed grave abuse of discretion in not counting in favor of VILLAROSA the votes
for JTV or derivatives thereof.
HELD/RATIO
NO, HRET did not commit any abuse of discretion in holding that the only issue for its
determination was whether JTV votes or
variations thereof should be counted in favor of Villarosa and in ruling that such votes are stray
votes.
The facts established in this case, strengthened by the admission of the parties at the
preliminary conference conducted by the HRET
on 6 August 1998 and during the oral argument before the Court on 15 August 2000, lead us
to no other conclusion than that the use by VILLAROSA of JTV as her nickname or stage
name, as indicated in her Certificate of Candidacy, was a clever ruse or ploy to make a
mockery of the election process. Therefore, the HRET did not commit any grave abuse of
discretion in ruling that JTV votes should not be counted in favor of VILLAROSA. They are
stray votes.
FACTS WHICH SOLD OUT GIRLIE: [1] JTV stands for Jose Tapales Villarosa, her husband
congressman *2+ During the campaign period for the 11 May 1998 elections, Villarosas
campaign streamers and handbills did not at all show that JTV
was her nickname. She earlier wanted her real nickname GIRLIE to be placed between
AMELITA and VILLAROSA per the request in
her affidavit, which request was not acted upon. - The plea that the voters intention must
prevail is misplaced. It assumes that those who wrote JTV actually intended to vote for
petitioner. This could be true only if the person who actually owns the nickname or the initials
JTV were not (a) Villarosas husband, (b) the incumbent Representative who had won as such
in both the 1992 and 1995 elections, (c) generally and popularly known as JTV when he ran
and campaigned for Representative in both elections in the same legislative district where
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2003-29275 October 6, 2011
Villarosa ran in the May 1998 elections. But since these were the immutable facts, the voters
who wrote JTV or variations thereof had no other person in mind except the then incumbent
Representative, Jose Tapales Villarosa, or the very person whom they have known for a long
time as JTV.
Even if Villarosa decided to use JTV as her nickname for purposes of the 11 May 1998
elections, one must never forget that she never used it as a nickname before she filed her
certificate of candidacy. The nickname which the second paragraph of Section 74 of the OEC
allows to be included in the certificate of candidacy is that by which *the candidate+ is
generally or popularly known. This clearly means the nickname by which one has been
generally or popularly known BEFORE the filing of the certificate of candidacy, but NOT what
the candidate wants to THEREAFTER use. By her own statement under oath in her affidavit of
16 April 1998, Villarosa solemnly declared that she was generally and popularly known in
every barangay in Occidental Mindoro as Girlie BEFORE and AFTER she filed her certificate
of candidacy. And, as asserted by her counsel during the oral argument, her other nickname
before she filed her certificate of candidacy was MRS. JTV, not JTV.
Rule 13 of Section 211 of the OEC cannot be applied in favor of Villarosa. That rule allows the
use of (a) a nickname and appellation of affection and friendship, provided that it is
accompanied by the first name or surname of the candidate, unless the nickname or
appellation is used to identify the voter; and (b) a nickname, which is not accompanied by the
name or surname of a candidate, provided that it is the one by which the candidate is
generally or popularly known in the locality. In both instances, the vote cast for the nickname
is a valid vote for the candidate concerned. The JTV votes are unaccompanied by her first
name or surname; and JTV is not, to repeat, a nickname by which VILLAROSA was generally
and popularly known in the Legislative District of Occidental
Mindoro. The HRET then committed no error in not applying in favor of Villarosa Rule 13,
Section 211 of the OEC: Under this rule 3 kinds of votes are considered stray: (1) a vote
containing initials only, (2) a vote which is illegible, and (3) a vote which does not sufficiently
identify the candidate for whom it is intended. The only error of the HRET is its ruling that if
the votes are in initials only, they are to be considered stray votes if they do not sufficiently
identify the candidate for whom the votes are intended. The first category of stray votes
under this rule is not to be qualified by the third category in the sense that votes in initials
only may be counted for a candidate provided that the initials would sufficiently identify the
candidate voted for. Such construction of the rule fails to give meaning to the disjunctive
conjunction ORseparating the first category from the second, and the second from the third.
Furthermore, since votes for GIRLIE written in the space for Representative were in fact
claimed by VILLAROSA and credited in her favor, then the HRET correctly ruled that JTV
votes or variations thereof, under the idem sonans rule, cannot be counted for VILLAROSA
because only one nickname or stage name is allowed.
Bad faith or malice on the part of VILLAROSA was evident when, in her COC and campaign
materials, she appropriated the initials or nickname of her husband, the incumbent Rep of the
district in question whom she wanted to succeed in office. She tried to make a mockery of a
process whose credibility is essential in preserving democracy. Nullus commodum potest de
injuria sua propia. No one should be allowed to take advantage of his own wrong.
SANCIANGCO V. RONO | Melencio-Herrera, 1999
FACTS
- Petitioner NAPOLEON E. SANCIANGCO, was elected Barangay Captain of Barangay Sta. Cruz,
Ozamiz City, in the May 17, 1982 Barangay elections. Later, he was elected President of the
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Association of Barangay Councils (ABC) of Ozamiz City by the Board of Directors of the said
Association. As the President of the Association, petitioner was appointed by the President of the
Philippines as a member of the City's Sangguniang Panlungsod.
- petitioner filed his Certificate of Candidacy for the May 14, 1984 Batasan Pambansa elections for
Misamis Occidental under the banner of the Mindanao Alliance. He was not successful in the said
election.
- Invoking Section 13(2), Article 5 of Batas Pambansa Blg. 697, petitioner informed respondent Vice-
Mayor Benjamin A. Fuentes, Presiding Officer of the Sangguniang Panlungsod, that he was
resuming his duties as member of that body. The matter was elevated to respondent Minister of
Local Government Jose A. Roo, who ruled that since petitioner is an appointive official, he is
deemed to have resigned from his appointive position upon the filing of his Certificate of
Candidacy.
- Petitioner impugns said ruling on the ground that since Section 13(2) of Batas Pambansa Blg. 697
makes no distinction between elective and appointive officials.
ISSUE
WON an appointive member of the Sangguniang Panlungsod, who ran for the position of
Mambabatas Pambansa in the elections of 1984, should be considered as resigned OR on forced
leave of absence upon the filing of his Certificate of Candidacy.
HELD/RATIO
YES. Since he is unquestionably an appointive member of the SP of Ozamiz City, he is deemed to
have ipso facto ceased to be such member when he filed his COC for the May 14, 1984 Batasan
elections. The law does not make any distinction between appointive and elective officials.
It goes without saying that although petitioner, by filing his certificate of candidacy for the
Batasan Pambansa ceased, ipso facto, to be an appointive member of the Sangguniang
Panlungsod, he remains an elective Barangay Captain from which position he may be
considered as having been on forced leave of absence. He also continues as President of the
Association of Barangay Councils but will need a reappointment by the President, as member
of the Sangguniang Panlungsod of Ozamiz City as the law speaks of members who may be
appointed by the President.
PNOC-EDC V. NLRC | Narvasa, 1993
FACTS
Section 66 of the Election Code:
"Section 66. Candidates holding appointive office or position. -- Any person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines, and
officers and employees in government-owned or controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his certificate of candidacy."
Manuel S. Pineda was employed with the Philippine National Oil Co.
Energy Development Corp. (PNOC-EDC), a subsidiary of the Philippine National Oil Co., from
September 17, 1981, when he was hired as clerk, to January 26, 1989, when his employment
was terminated.
while holding the position of Geothermal Construction Secretary, Engineering and
Construction Department, at Tongonan Geothermal Project, Ormoc City, Pineda decided to
run for councilor of the Municipality of Kananga, Leyte, in the local elections scheduled in
January, 1988, and filed the corresponding certificate of candidacy for the position.
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2003-29275 October 6, 2011 147
Objection to Pineda's being a candidate while retaining his job in the PNOC-EDC was shortly
thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte. The mayor communicated
with the PNOC-EDC -- thru Engr. Ernesto Patanao, Resident Manager, Tongonan Geothermal
Project -- to express the view that Pineda could not actively participate in politics unless he
officially resigned from PNOC-EDC.
Pineda was among the official candidates voted for, and eventually proclaimed elected to, the
office of councilor.
On February 8, 1988, he wrote to the COMELEC Chairman, expressing his desire to withdraw
from the political contest on account of what he considered to be election irregularities; 2
and on March 19, 1988, he wrote to the Secretary of Justice seeking legal opinion on the
question, among others, of whether or not he was "considered automatically resigned upon .
. . filing of . . . (his) certificate of candidacy," and whether or not, in case he was elected, he
could "remain appointed to any corporate offspring of a government-owned or controlled
corporation." Nevertheless, Pineda took his oath of office in June, 1988 as councilor-elect of
the Municipality of Kananga, Leyte. And despite so qualifying as councilor, and assuming his
duties as such, he continued working for PNOC-EDC as the latter's Geothermal Construction
Secretary, Engineering and Construction Department, at Tongonan Geothermal Project,
Ormoc City.
Marcelino M. Tongco, Department Manager of the Engineering and Construction Department,
PNOC-EDC, addressed an inquiry to the latter's Legal Department regarding the status of
Manuel S. Pineda as employee in view of his candidacy for the office of municipal councilor. In
response, the Legal Department rendered an opinion to the effect that Manuel S. Pineda
should be considered ipso facto resigned upon the filing of his Certificate of Candidacy in
November, 1987, in accordance with Section 66 of the Omnibus Election Code.
Pineda appealed the PNOC-EDC Legal Department's ruling to N.C. Vasquez, the Vice President
of PNOC-EDC. He also wrote a letter to the Department of Local Government inquiring about
the status of his employment with PNOC-EDC in relation to his election as member of the
Sangguniang Bayan. He was advised by DLG Undersecretary Jacinto T. Rubillo Jr. that there
was no legal impediment to his continuing in his employment with PNOC-EDC while holding at
the same time the elective position of municipal councilor.
PNOC-EDC, through Marcelino Tongco (Manager, Engineering and Construction Department),
notified Manuel S. Pineda in writing (1) that after having given him "ample time" to make
some major adjustments before . . . separation from the company," his employment was
being terminated pursuant to Section 66 of the Omnibus Election Code.
Pineda lodged a complaint for illegal dismissal in the Regional Arbitration Branch No. VIII,
NLRC, Tacloban City. Impleaded as respondents were the PNOC-EDC and the Manager of its
Engineering and Construction Department, Marcelino M. Tongco.
Labor Arbiter Araceli H. Maraya rendered a decision declaring Manuel S. Pineda's dismissal
from the service illegal, and ordering his reinstatement to his former position without loss of
seniority rights and payment of full back wages corresponding to the period from his illegal
dismissal up to the time of actual reinstatement.
PNOC-EDC filed an appeal with the National Labor Relations Commission. The latter dismissed
the appeal for lack of merit PNOC-EDC sought reconsideration; its motion was denied by the
Commission in a Resolution
ISSUE
WON an employee in a government-owned or controlled corporations without an original charter
(and therefore not covered by Civil Service Law) nevertheless falls within the scope of Section 66 of
the Omnibus Election Code.
PROF. GISELLA N. DIZON-REYES
 148 Ma. Jessa M. Alvarez
HELD/RATIO
YES, Congress did not distinguish between the employees from two different kind of GOCC under
the OEC.
When the Congress of the Philippines reviewed the OEC of 1985, in connection with its
deliberations on and subsequent enactment of related and repealing legislation i.e., RA
7166: "An Act Providing for Synchronized National and Local Elections and for Electoral
Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November
26, 1991), 6646: "An Act Introducing Additional Reforms in the Electoral System and for Other
Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc.,
(effective November 6, 1987), it was no doubt aware that in light of Section 2 (1), Article IX of
the 1987 Constitution: (a) government-owned or controlled corporations were of 2 categories
those with original charters, and those organized under the general law and (b)
employees of these corporations were of 2 kinds those covered by the Civil Service Law,
rules and regulations because employed in corporations having original charters, and those
not subject to Civil Service Law but to the Labor Code because employed in said corporations
organized under the general law, or the Corporation Code. Yet Congress made no effort to
distinguish between these two classes of GOCCs or their employees in the OEC or subsequent
related statutes, particularly as regards the rule that any employee "in GOCCs, shall be
considered ipso facto resigned from his office upon the filing of his COC."
What all this imports is that Section 66 of the OEC applies to officers and employees in
GOCCs, even those organized under the general laws on incorporation and therefore not
having an original or legislative charter, and even if they do not fall under the Civil Service Law
but under the Labor Code. In other words, Section 66 constitutes just cause for termination of
employment in addition to those set forth in the Labor Code, as amended.
QUINTO V. COMELEC | Nachura, 2009
FACTS
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM
IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND
LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.
Section 11 thereof reads:
SEC. 11. Official Ballot.The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon
in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred twenty
(120) days before the elections: Provided, That, any elective official, whether national or local,
running for any office other than the one which he/she is holding in a permanent capacity, except
for president and vice president, shall be deemed resigned only upon the start of the campaign
period corresponding to the position for which he/she is running: Provided, further, That, unlawful
acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid
campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline
for filing of the certificate of candidacy for the positions of President, Vice President, Senators and
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2003-29275 October 6, 2011
candidates under the Party-List System as well as petitions for registration and/or manifestation to
participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of
certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures
which the Commission shall adopt. The Commission may contract the services of private printers
upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet
the printing requirements. Accredited political parties and deputized citizens' arms of the
Commission may assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the
serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that
identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1)
ballot for every registered voter with a provision of additional four (4) ballots per precinct.
Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A.
No. 9369, entitled AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM
IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND
LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND
ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING
FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 13 of the amendatory law modified
Section 11 of R.A. No. 8436, thus:
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a candidate at the start of
the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a public appointive office or position, including
active members of the armed forces, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his/her office and must
vacate the same at the start of the day of the filing of his/her certificate of candidacy.
Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC
issued Resolution No. 8678, the Guidelines on the Filing of Certificates of Candidacy (CoC) and
Nomination of Official Candidates of Registered Political Parties in Connection with the May
10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.a) Any person holding a public appointive office
or position including active members of the Armed Forces of the Philippines, and other officers and
employees in government-owned or controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon the filing
of his certificate of candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.The certificate of candidacy shall be filed on
regular days, from November 20 to 30, 2009, during office hours, except on the last day, which
shall be until midnight.
Alarmed that they will be deemed ipso facto resigned from their offices the moment they file
their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 149

positions in the government and who intend to run in the coming elections filed the instant national housing, social welfare development, interior and local government, and foreign
petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section affairs). With the fact that they both head executive offices, there is no valid justification to
4(a) of Resolution No. 8678 as null and void. treat them differently when both file their CoCs for the elections. Under the present state of
our law, the VP, in the example, running this time, let us say, for President, retains his position
ISSUE during the entire election period and can still use the resources of his office to support his
WON second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of campaign.
the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional. As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his
appointive office, the inverse could be just as true and compelling. The public officer who files
HELD/RATIO his certificate of candidacy would be driven by a greater impetus for excellent performance to
YES, the provision is unconstitutional for being violative of the EPC and overbreadth doctrine. show his fitness for the position aspired for.
Petitioners took improper remedy but SC took note of transcendental nature and paramount (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
importance of the issues raised and compelling state interest. appointive posts: (a) without distinction as to whether or not they occupy high/influential
History of assailed provision: Its merely a reproduction of the second proviso in the third
paragraph of Section 13 of R.A. No. 9369: For this purpose, the Commission shall set the considered as ipso facto resigned once he files his CoC for the 2010 elections. This scenario is
deadline for the filing of COC/petition for registration/manifestation to participate in the absurd for, indeed, it is unimaginable how he can use his position in the government to wield
election. Any person who files his COC within this period shall only be considered as a influence in the political world. (b) they limit these civil servants activity regardless of
candidate at the start of the campaign period for which he filed his COC: Provided, That, whether they be partisan or nonpartisan in character, or whether they be in the national,
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of municipal or barangay level; and
the aforesaid campaign period: Provided, finally, That any person holding a public appointive (3) Congress has not shown a compelling state interest to restrict the fundamental right of
office or position, including active members of the armed forces, and officers and employees these public appointive officials.
in government-owned or -controlled corporations, shall be considered ipso facto resigned The Americans, from whom we copied the provision in question, had already stricken down a
from his/her office and must vacate the same at the start of the day of the filing of his/her similar measure for being unconstitutional. It is high-time that we, too, should follow suit and,
COC. thus, uphold fundamental liberties over age-old, but barren, restrictions to such freedoms.
The latter proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. Reliance on the Mancuso v Taft ruling: (1) The right to run for public office is inextricably
9369, but was lifted from Sec. 66 OEC: Sec. 66. Candidates holding appointive office or linked with two fundamental freedoms freedom of expression and association; (2) Any
position.Any person holding a public appointive office or position, including active legislative classification that significantly burdens this fundamental right must be subjected to
members of the Armed Forces of the Philippines, and officers and employees in government- strict equal protection review; and (3) While the state has a compelling interest in maintaining
owned or controlled corporations, shall be considered ipso facto resigned from his office the honesty and impartiality of its public work force, the deemed-resigned provisions pursue
upon the filing of his certificate of candidacy. (1) They violate the equal protection clause of their objective in a far too heavy-handed manner as to render them unconstitutional.
the Constitution because of the differential treatment of persons holding appointive
offices and those holding elective positions;
Applying the four requisites to the instant case, SC finds that the differential treatment of
persons holding appointive offices as opposed to those holding elective ones is not germane
to the purposes of the law.
The obvious reason for the challenged provision is to prevent the use of a governmental
position to promote ones candidacy, or even to wield a dangerous or coercive influence on
the electorate. The measure is further aimed at promoting the efficiency, integrity, and
discipline of the public service by eliminating the danger that the discharge of official duty
would be motivated by political considerations rather than the welfare of the public. The
restriction is also justified by the proposition that the entry of civil servants to the electoral
arena, while still in office, could result in neglect or inefficiency in the performance of duty
because they would be attending to their campaign rather than to their office work.
If we accept these as the underlying objectives of the law, then the assailed provision cannot
be constitutionally rescued on the ground of valid classification. Glaringly absent is the
requisite that the classification must be germane to the purposes of the law. Indeed, whether
one holds an appointive office or an elective one, the evils sought to be prevented by the
measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that
matter, could wield the same influence as the Vice-President who at the same time is
appointed to a Cabinet post (in the recent past, elected VP were appointed to take charge of

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 150 Ma. Jessa M. Alvarez
E. Disqualification
MARQUEZ V. COMELEC | Vitug, 1995
FACTS
Bienvenido Marquez, a defeated candidate for the elective position in the Province of Quezon
in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the
resolution of the Commission on Elections which dismissed his petition for quo warranto
against the winning candidate, herein private respondent Eduardo Rodriguez, for being
allegedly a fugitive from justice.
It is averred that at the time private respondent Rodriguez filed his certificate of candidacy, a
criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal
property was still pending before the Municipal Court of Los Angeles Judicial District, County
of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is
claimed, has yet to be served on private respondent on account of his alleged "flight" from
that country.
Before the 11th May 1992 elections, a petition for cancellation of respondent's certificate of
candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local
Government Code, was filed by petitioner with the COMELEC. COMELEC dismissed the
petition.
Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith,
petitioner instituted quo warranto proceedings against private respondent before the
COMELEC. COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02
December 1993, denied a reconsideration of the resolution.
ISSUE
WON Rodriguez who, at the time of the filing of his certificate of candidacy (and to date), is said to
be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within
the term fugitive from justice contemplated by Sec. 40(e) of the LGC, therefore, disqualified from
being a candidate for, and thereby ineligible from holding on, to an elective local office.
HELD/RATIO
SC did not approve of the Art. 73 definition of fugitive from justice but did not make any finding
as to its applicability to this case so it remanded the case for determination of factual matters.
The Oversight Committee came out with Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991: (e) Fugitives from justice in criminal or
non-political cases here or abroad. Fugitive from justice refers to a person who has been
convicted by final judgment.
The Court believes and thus holds, albeit with some personal reservations of the ponente
(expressed during the Court's en banc deliberations), that Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991, to the extent that it confines
the term fugitive from justice to refer only to a person (the fugitive) "who has been
convicted by final judgment" is an inordinate and undue circumscription of the law.
the COMELEC did not make any definite finding on whether or not, in fact, private respondent
is a "fugitive from justice" as such term must be interpreted and applied in the light of the
Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the
petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations
promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus
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2003-29275 October 6, 2011
constrained to remand the case to the COMELEC for a determination of this unresolved
factual matter.
CAASI V. CA | Grino-Aquino, 1990
FACTS
2 consolidated cases for the disqualification under Section 68 of the Omnibus Election Code of
the private respondent, Merito Miguel for the position of municipal mayor of Bolinao,
Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground
that he is a green card holder, hence, a permanent resident of the United States of America,
not of Bolinao.
Miguel admitted that he holds a green card issued to him by the US Immigration Service, but
he denied that he is a permanent resident of the United States. He allegedly obtained the
green card for convenience in order that he may freely enter the United States for his periodic
medical examination and to visit his children there. He alleged that he is a permanent
resident of Bolinao, Pangasinan, that he voted in all previous elections, including the
plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the
congressional elections on May 18,1987.
COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on
the ground that The possession of a green card by the respondent (Miguel) does not
sufficiently establish that he has abandoned his residence in the Philippines. On the contrary,
Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown
by his having voted in successive elections in said municipality. As the respondent meets the
basic requirements of citizenship and residence for candidates to elective local offices as
provided for in Section 42 of the Local Government Code, there is no legal obstacle to his
candidacy for mayor of Bolinao, Pangasinan.
Commissioner Badoy, Jr. opined that: A green card holder being a permanent resident of or
an immigrant of a foreign country and respondent having admitted that he is a green card
holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove
that he "has waived his status as a permanent resident or immigrant" to be qualified to run
for elected office.
ISSUES
(1) WON a green card is proof that the holder is a permanent resident of the US.
(2) WON respondent Miguel had waived his status as a permanent resident of or immigrant to the
US prior to the local elections.
HELD/RATIO
(1) YES. Miguel's application for immigrant status and permanent residence in the US and his
possession of a green card attesting to such status are conclusive proof that he is a
permanent resident of the U.S. despite his occasional visits to the Philippines.
The Court deems it significant that in the Application for Immigrant Visa and Alien
Registration which Miguel filled up in his own handwriting and submitted to the US Embassy
in Manila before his departure for the United States in 1984, Miguel's answer to Question No.
21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer
was,"Permanently."
Miguel's immigration to the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
Sec 18, Art XI 1987 Consti which provides that any public officer or employee who seeks to
change his citizenship OR acquire the status of an immigrant of another country during his
tenure shall be dealt with by law" is NOT applicable to Miguel for he acquired the status of an
immigrant of the United States before he was elected to public office, not during his tenure
as mayor.
The law applicable to him is Sec. 68, OEC, which provides: Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless such person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in
the election laws.
(2) NO. The waiver of such immigrant status should be as indubitable as his application for it.
Absent clear evidence that he made an irrevocable waiver of that status or that he
surrendered his green card to the appropriate US authorities before he ran for mayor of
Bolinao in the local elections, our conclusion is that he was disqualified to run for said public
office, hence, his election thereto was null and void.
Return to Philippines in 1987 + running for mayor = waiver of status as permanent resident or
immigrant of US? NO. To be qualified to run for elective office in the Philippines, the law
requires that the candidate who is a green card holder must have waived his status as a
permanent resident or immigrant of a foreign country. Therefore, his act of filing a certificate
of candidacy for elective office in the Philippines, did NOT of itself constitute a waiver of his
status as a permanent resident or immigrant of the United States. The waiver of his green
card should be manifested by some act or acts independent of and done prior to filing his
candidacy for elective office in this country. Without such prior waiver, he was disqualified to
run for any elective office.
Rationale for Sec. 68, OEC: In banning from elective public office Philippine citizens who are
permanent residents or immigrants of a foreign country, the OEC has laid down a clear policy
of excluding from the right to hold elective public office those Philippine citizens who possess
dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast
their lot with our country without mental reservations or purpose of evasion. The
assumption is that those who are resident aliens of a foreign country are incapable of such
entire devotion to the interest and welfare of their homeland for with one eye on their public
duties here, they must keep another eye on their duties under the laws of the foreign country
of their choice in order to preserve their status as permanent residents thereof.
PAMIL V. TELERON | Fernando, 1978
FACTS
Private respondent, Father Margarito R. Gonzaga was, in 1971, elected to the position of
municipal mayor of Albuquerque, Bohol and was duly proclaimed.
Petitioner, who is also an aspirant for the position of mayor, filed a suit of Quo Warranto for
the disqualification of Fr. Gonzaga based on the Administrative Code prohibition.
In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active
service, persons receiving slaries or compensation from provincial or national funds, or contractors
for public works of the municipality.
Judge Teleron ruled in favor of the respondent on the basis that such statutory ineligibility
was impliedly repealed by the Election Code of 1971. Thus, the matter was then elevated to
the Supreme Court.
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October 6, 2011 151
Seven members of the SC including the ponencia believe that the judgment on the elected
official and his secretaries should be affirmed saying that the provision is no longer operative
since it has been superseded by the 1935 constitution.
Five members of the SC hold that such prohibition against an ecclesiastic running for elective
office is not tainted with any constitutional infirmity.
The vote is indecisive. The vote of the remaining seven does not suffice to render the
challenged provision ineffective.
ISSUE
WON the Admin Code provision is unconstitutional.
HELD/RATIO
Court is divided (7-5). Therefore, constitutional validity stands and Father Gonzaga is ousted from
his seat.
Reasons why there are constitutional objections to the continuing force and effectivity of Sec 2175
re ecclesiastics:
1. In the 1935 Constitution, as it is now under the present Charter, it is explicitly declared: No
religious test shall be required for the exercise of civil or political rights. The principle of the
paramount character of the fundamental law thus comes into play. There are previous rulings to
that effect. The ban imposed by the Administrative Code cannot survive.
2. 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, and all references in such laws to the government or officials of the Philippines shall be
construed, in so far as applicable, to refer to the Government and corresponding officials under this
Constitution. Exemplifying the cases De los Santos v Mallare and Martinez v Morfe.
3. The challenged Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution. To so exclude them is to impose a religious test.
FERMIN V. COMELEC | Nachura, 2008
FACTS
After the creation of Shariff Kabunsuan, the Regional Assembly of the Autonomous Region in
Muslim Mindanao (ARMM), on November 22, 2006, passed Autonomy Act No. 205 creating
the Municipality of Northern Kabuntalan in Shariff Kabunsuan.
Mike A. Fermin, the petitioner in both cases, was a registered voter of Barangay Payan,
Kabuntalan. On December 13, 2006, claiming that he had been a resident of Barangay
Indatuan for 1 year and 6 months, petitioner applied with the COMELEC for the transfer of his
registration record to the said barangay.
the creation of North Kabuntalan was ratified in a plebiscite on December 30, 2006, formally
making Barangay Indatuan a component of Northern Kabuntalan.
COMELEC approved petitioner's application for the transfer of his voting record and
registration as a voter to Precinct 21A of Barangay Indatuan, Northern Kabuntalan.
Fermin filed his Certificate of Candidacy (CoC) for mayor of Northern Kabuntalan in the May
14, 2007 National and Local Elections.
private respondent Umbra Ramil Bayam Dilangalen, another mayoralty candidate, filed a
Petition for Disqualification against Fermin, with the Office of the Provincial Election
Supervisor of Shariff Kabunsuan. The petition alleged that the petitioner did not possess the
PROF. GISELLA N. DIZON-REYES
 152 Ma. Jessa M. Alvarez
period of residency required for candidacy and that he perjured himself in his CoC and in his
application for transfer of voting record.
Elections were held without any decision being rendered by the COMELEC in the said case.
After the counting and canvassing of votes, Dilangalen emerged as the victor.
Fermin subsequently filed an election protest with the Regional Trial Court (RTC), Branch 13 of
Cotabato City.
COMELEC 2nd Division disqualified Fermin for not being a resident of Northern Kabuntalan. It
ruled that, based on his declaration that he is a resident of Barangay Payan as of April 27,
2006 in his oath of office before Datu Andal Ampatuan, Fermin could not have been a
resident of BarangayIndatuan for at least one year. The COMELEC En Banc affirmed the
Division's ruling.
Dilangalen filed, on September 27, 2007, with the RTC of Cotabato a motion to dismiss
Election Case on the ground that Fermin had no legal standing to file the said protest, the
COMELEC En Banc having already affirmed his disqualification as a candidate; and this Court,
in the abovementioned case, did not issue an order restraining the implementation of the
assailed COMELEC resolutions. The RTC, however, denied this motion. On motion for
reconsideration, the trial court remained steadfast in its stand that the election protest was
separate and distinct from the COMELEC proceedings, and that, unless restrained by the
proper authority, it would continue hearing the protest.
Dilangalen filed a Petition for Certiorari and Prohibition with the COMELEC. COMELEC 1st
Division set aside the aforesaid orders of the trial court for having been issued with grave
abuse of discretion, prohibited the said court from acting on and proceeding with the protest,
and ordered it to dismiss the same.
The COMELEC En Banc denied petitioners motion for the reconsideration of the divisions
ruling on account of Fermins failure to pay the required fees. It further directed the issuance
of an entry of judgment in the said case.
These developments prompted Fermin to file another certiorari petition before this Court.
ISSUE
WON Dilangalens petition is one under Section 68 or Section 78 of the OEC? Consequently, WON it
had been filed on time?
HELD/RATIO
It is in the nature of a petition to deny due course to or cancel a CoC under SECTION 78 of the OEC.
The petition contains the essential allegations of a S78 petition, namely: (1) the candidate
made a representation in his certificate; (2) the representation pertains to a material matter
which would affect the substantive rights of the candidate (the right to run for the election for
which he filed his certificate); and (3) the candidate made the false representation with the
intention to deceive the electorate as to his qualification for public office OR deliberately
attempted to mislead, misinform, or hide a fact which would otherwise render him ineligible.
Likewise appropriately raises question on a candidates eligibility for public office, i.e.
possession of the 1-year residency requirement.
Denial of due course to or the cancellation of the CoC is NOT based on the lack of
qualifications BUT on a finding that the candidate made a material representation that is
false, which may relate to the qualifications required of the public office he/she is running for.
S78 OEC, therefore, is to be read in relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate. Indeed, the Court has already likened a
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2003-29275 October 6, 2011
proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC
since they both deal with the eligibility or qualification of a candidate, with the distinction
mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for
quo warranto is filed after proclamation of the winning candidate.
Section 78 petition ought not to be interchanged or confused with a Section 68 petition.
They are different remedies, based on different grounds, and resulting in different
eventualities.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the
qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established
residence in the said locality for at least one year immediately preceding the election. Failure
to meet the one-year residency requirement for the public office is not a ground for the
disqualification of a candidate under Sec 68. The provision only refers to the COMMISSION
OF PROHIBITED ACTS and the POSSESSION OF A PERMANENT RESIDENT STATUS IN A FOREIGN
COUNTRY as grounds for disqualification.
Dilangalen invokes S1, Rule 25 COMELEC Rules of Procedure and COMELEC Resolution No.
7800 to bolster that its a disqualification case. SC says: A COMELEC rule or resolution cannot
supplant or vary the legislative enactments that distinguish the grounds for disqualification
from those of ineligibility, and the appropriate proceedings to raise the said grounds. Rule 25
and COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law
for the filing of a petition for disqualification under S68, and a petition for the denial of due
course to or cancellation of CoC under S78 OEC.
Citing Romualdez-Marcos v COMELEC: The assimilation in Rule 25 of the COMELEC rules of
grounds for ineligibility into grounds for disqualification is contrary to the evident intention of
the law. For not only in their grounds but also in their consequences are proceedings for
"disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in 12 and 68 of the OEC and
in 40 of LGC and are for the purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its progress. "Ineligibility," on the
other hand, refers to the lack of the qualifications prescribed in the Constitution or the
statutes for holding public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
DIANGKA V. COMELEC | Gonzaga-Reyes, 2000
FACTS
A special action for disqualification was commenced by private respondent Ali M. Balindong a
rival mayoralty candidate of DIANGKA, before the COMELEC. BALINDONG sought to disqualify
DIANGKA from continuing to run as candidate for Mayor in the May 11, 1998 elections in the
municipality of Ganassi, Lanao del Sur, on the ground that the latter and her husband, then
incumbent mayor of said municipality, committed acts of terrorism in order to accord
DIANGKA an undue advantage at the polls.
COMELEC en banc issued an Omnibus Order declaring a partial failure of election in nine (9)
out of the fifty-eight (58) precincts in Ganassi, Lanao del Sur, and, accordingly scheduled
special elections on July 27, 1998 in the nine (9) precincts. The results of the special elections
were consolidated with the results of the May 11, 1998 elections, and DIANGKA emerged as
the winner.
Based on the COMELECs preliminary determination that the evidence against DIANGKA in the
petition for disqualification is strong, the former ordered the Municipal Board of Canvassers
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
to cease and desist from proclaiming her. Nevertheless, DIANGKAs proclamation as mayor of
the municipality proceeded on July 27, 1998 since the Municipal Board of Canvassers received
the order an hour after the proclamation.
COMELEC 2nd Division issued a Resolution disqualifying DIANGKA as candidate for Mayor of
Ganassi, Lanao del Sur.
DIANGKA filed a motion for reconsideration which COMELEC en banc denied.
during the pendency of the instant petition, Baguio A. Macapodi, duly elected Municipal Vice-
Mayor of Ganassi, Lanao del Sur took his oath of office on August 30, 1999 as Municipal
Mayor of Ganassi, Lanao del Sur and has assumed the duties and responsibilities thereof as
the lawful successor in accordance with the Local Government Code.
ISSUE
WON Diangka was properly disqualified.
HELD/RATIO
YES. Diangkas petition mainly attacks the factual findings of COMELEC e.g. No allegation that she
conspired with her husband in the alleged criminal acts committed.
SC says: Contrary to DIANGKAS claim, the COMELEC found evidence of her direct
participation in the first act of terrorism. She was on board the ambulance used to transport
the ballots, ballot boxes and other election paraphernalia intended for Precinct 2A at the
Gadongan Elementary School. Instead of proceeding directly to said place, the ambulance
went to Barangay Bagoaingud where the watchers of DIANGKAs rivals were forced off the
ambulance at gunpoint by barangay chairman Lombayan Dubar and their cohorts. DIANGKA
could not feign ignorance as to what had transpired as the COMELEC had found, based on her
own admission and the testimonies of witnesses, that DIANGKA was a passenger in the
ambulance; that she had control over the driver of the ambulance, who upon her request,
dropped her off at her house; and that the ambulance belongs to the municipality under the
control of her mayor husband. Evidently, the application of the rule on res inter alios acta is
unavailing on account of these circumstances which show her participation or at the very
least her acquiescence to the incident.
Neither could DIANGKA escape responsibility on the ground that there is no proof that she
and her husband conspired to commit the acts of terrorism. Inasmuch as her husband along
with his cohorts fired their high-powered firearms in the air during election day in a place
where several voting precincts were clustered has been duly established, DIANGKA could only
argue that she cannot be held liable for the actuations of her husband.
JURILLA V. COMELEC | Bellosillo, 1994
FACTS
Eugenio Jurilla, Marciano Medalla, Bernardo Nazal, Rey Medina, Melencio Castelo, Godofredo
Liban And Antonio V. Hernandez were among the candidates in the 11 May 1992
synchronized elections for the six (6) positions of councilor for the Second District of Quezon
City.
respondent Antonio V. Hernandez filed with the Commission on Elections his certificate of
candidacy for one of the contested seats. In Item No. 6 of his certificate he gave as his address
"B 26, L 1 New Capitol Estates, Quezon City." However, he did not indicate on the space
provided in Item No. 12 therein his Precinct Number and the particular Barangay where he
was a registered voter.
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His biodata submitted together with his certificate of candidacy gave his address as "Acacia
Street, Mariana, Quezon City," which is part of the Fourth District of Quezon City.
his certificate of candidacy and his biodata filed with COMELEC did not expressly state that he
was a registered voter of Quezon City or that he was a resident of the Second District thereof
within the purview of Sec. 39, par. (a), of the Local Government Code of 1991, which provides:
Sec. 39. Qualifications (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a member of
the sangguniang panlalawigan, sangguniang panglunsod, or sangguniang bayan, the district
where he intends to be elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or any other local
language or dialect.
petitioners herein challenged his qualification before public respondent COMELEC explaining
however that since they became aware of the grounds for private respondents qualification
only after the elections, they chose to file their petition under Rule 25 of the COMELEC Rules
of Procedure authorizing the filing of such petition at any day after the last day for filing
certificates of candidacy but not later than the date of proclamation.
COMELEC promulgated its questioned resolution denying the petition for disqualification for
being filed outside the reglementary period under Sec. 5 of RA 6646, which pertains to
nuisance candidates.
Hence the instant petition for certiorari imputing grave abuse of discretion amounting to lack
of jurisdiction on the part of COMELEC in issuing the assailed resolution.
ISSUE
WON COMELEC properly dismissed the petition.
HELD/RATIO
YES. It may be gleaned from the provisions of Sec. 39, par. (a), of the LGC of 1991, that the law does
not specifically require that the candidate must state in his certificate of candidacy his Precinct
Number and the Barangay where he is registered. Apparently, it is enough that he is actually
registered as a voter in the precinct where he intends to vote, which should be within the district
where he is running for office.
Failure to so state in his certificate of candidacy his Precinct Number is satisfactorily explained
by him in that at the time he filed his certificate he was not yet assigned a particular Precinct
Number in the Second District of Quezon City. He was formerly a registered voter of Manila,
although for the past 2 years prior to the elections he was already a resident of "B 26, L 1 New
Capitol Estates," admittedly within the Second District of Quezon City.
As a registered voter of Precinct Number 233-B, New Capitol Estates, Quezon City, as judicially
confirmed, the COMELEC had no other recourse but to declare that he was eligible, hence
qualified, to run for the position in question.
COMELEC referred to the action taken by petitioners as one to declare private respondent a
nuisance candidate and intimating that they should have instead petitioned COMELEC to
refuse to give due course to or cancel the certificate of candidacy of private respondent. Sec.
69. Nuisance candidates. The Commission may, motu proprio or upon a verified petition of
an interested party, refuse to give due course to or cancel a certificate of candidacy if it is
shown that said certificate has been filed to put the election process in mockery or disrepute
or to cause confusion among the voters by the similarity of the names of the registered
candidates or by other circumstances or acts which clearly demonstrate that the candidate
has no bona fide intention to run for the office for which the certificate of candidacy has been
filed and thus prevent a faithful determination of the true will of the electorate.
PROF. GISELLA N. DIZON-REYES
 154 Ma. Jessa M. Alvarez
Certainly, the holding of COMELEC that Hernandez was a nuisance candidate is erroneous
because, tested against the provisions of Sec. 69, there is no way by which we can categorize
him as a nuisance candidate, hence, the procedure therein provided could not have been
properly invoked by petitioners herein. Neither could they apply Rule 25 of the COMELEC
Rules of Procedure which would require such petition to be filed at any day after the last day
for filing certificates of candidacy but not later than the date of proclamation.
DOMINO V. COMELEC | Panganiban, 1999
FACTS
Domino filed his certificate of candidacy for the position of Representative of the Lone
Legislative District of the Province of Sarangani indicating in his certificate that he had resided
in the constituency where he seeks to be elected for one (1) year and two (2) months
immediately preceding the election.
Private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson
and Dionisio P. Lim, Sr., filed with the COMELEC a Petition to Deny Due Course to or Cancel
Certificate of Candidacy of Domino because he is neither a resident nor a registered voter of
the province of Sarangani.
The petition was assigned to the Comelec Second Division, which rendered a resolution
declaring Domino disqualified as candidate for the position and ordered the cancellation of
his certificate of candidacy.
On the day of the election, the Comelec ordered that the votes cast for Domino be counted
but suspended the proclamation if he wins.
The result of the election showed that Domino garnered the highest number of votes over his
opponents. He filed a motion for reconsideration of the resolution of the Comelec, which was
denied by the Comelec en banc. Hence, the present petition forcertiorari with preliminary
mandatory injunction alleging that Comelec committed grave abuse of discretion amounting
to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence
requirement.
The Court allowed the candidate who received the second highest number of votes in the
election to intervene.
ISSUE
(1) WON the judgment of the MeTC of QC in the exclusion proceeding declaring him as resident of
Sarangani and not of QC is final, conclusive and binding upon the whole world, including the
COMELEC.
(2) WON petitioner herein has resided in the subject congressional district for at least 1 year
immediately preceding the May 11, 1998 elections.
(3) WON COMELEC has jurisdiction over the petition a quo for the disqualification of petitioner.
HELD/RATIO
(1) NO.
(2) NO.
(3) YES.
COMELEC has jurisdiction as provided in S78 OEC, over a petition to deny due course to or
cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the
competence of the COMELEC to determine whether false representation as to material facts
was made in the certificate of candidacy, that will include, among others, the residence of the
candidate.
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The determination of the MeTC of Quezon City in the exclusion proceedings as to the right of
Domino to be included or excluded from the list of voters in the precinct within its territorial
jurisdiction, does not preclude the COMELEC, in the determination of Dominos qualification
as a candidate, to pass upon the issue of compliance with the residency requirement.
COMELEC, under S78 OEC, has jurisdiction over a petition to deny due course to or cancel
certificate of candidacy. Such jurisdiction continues even after election, if for any reason no
final judgment of disqualification is rendered before the election, and the candidate facing
disqualification is voted for and receives the highest number of votes and provided further
that the winning candidate has not been proclaimed or has taken his oath of office.
HRETs sole and exclusive jurisdiction over all contests relating to the election, returns and
qualifications of members of Congress as provided under Section 17 of Article VI of the
Constitution begins only after a candidate has become a member of the HoR. Here, Domino
was not proclaimed as Congressman-elect of the Lone Congressional District of the Province
of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the
day of the election ordering the suspension of his proclamation should he obtain the winning
number of votes. This resolution was issued by the COMELEC in view of the non-finality of its
6 May 1998 resolution disqualifying him as candidate for the position.
Considering that he has not been proclaimed as Congressman-elect in the Lone Congressional
District of the Province of Sarangani he cannot be deemed a member of the House of
Representative. Hence, it is the COMELEC and not the HRET which has jurisdiction over the
issue of his ineligibility as a candidate.
BAUTISTA V. COMELEC | Carpio, 2003
FACTS
Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July
2002 barangay elections. Election Officer Josefina P. Jare o refused to accept Bautistas
certificate of candidacy because he was not a registered voter in Lumbangan.
Bautista filed an action for mandamus against Election Officer Jareo with the Regional Trial
Court of Batangas.
trial court ordered Election Officer Jare o to accept Bautistas certificate of candidacy and to
include his name in the certified list of candidates for Punong Barangay. The trial court ruled
that Section 7 (g) of COMELEC Resolution No. 4801 mandates Election Officer Jareo to
include the name of Bautista in the certified list of candidates until the COMELEC directs
otherwise.
Election Officer Jareo included Bautista in the certified list of candidates for Punong
Barangay. At the same time, Election Officer Jare o referred the matter of Bautistas
inclusion in the certified list of candidates with the COMELEC Law Department.
COMELEC Law Department recommended the cancellation of Bautistas certificate of
candidacy since he was not registered as a voter in Lumbangan. The COMELEC en banc failed
to act on the COMELEC Law Departments recommendation before the barangay elections on
15 July 2002.
Bautista and private respondent Divina Alcoreza were candidates for the position of Punong
Barangay in Lumbangan. Bautista obtained the highest number of votes (719) while Alcoreza
came in second with 522 votes
Lumbangan Board of Canvassers proclaimed Bautista as the elected PunongBarangay
Bautista took his oath of office as Punong Barangay before Congresswoman Eileen Ermita-
Buhain of the First District of Batangas. Bautista again took his oath of office during a mass
oath-taking ceremony administered by Nasugbu Municipal Mayor Raymund Apacible.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August
2002 to cancel Bautistas certificate of candidacy and directed the Election Officer to delete
Bautistas name from the official list of candidates.
COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareo to (1) delete
the name of Bautista from the official list of candidates for Punong Barangay of Barangay
Lumbangan; (2) order the Board of Canvassers of Lumbangan to reconvene for the purpose of
proclaiming the elected Punong Barangay with due notice to all candidates concerned; and (3)
direct the proclaimed disqualified candidate Bautista to cease and desist from taking his oath
of office or from assuming the position which he won in the elections, citing COMELEC
Resolution
The Board of Canvassers reconvened and after making the necessary corrections in the
Certificate of Canvass of Votes, proclaimed Alcoreza as the winning Punong Barangay.
Alcoreza thus assumed the post of Punong Barangay of Lumbangan.
ISSUES
(1) WON COMELEC en banc committed grave abuse of discretion amounting to excess or lack of
jurisdiction when it issued Resolution Nos. 5404 and 5584.
(2) WON COMELEC deprived Bautista of DP when the COMELEC en banc issued Reso Nos. 5404 and
5584.
(3) WON it was proper to proclaim Alcoreza as PB in view of the alleged disqualification of the
winning candidate Bautista.
HELD/RATIO
(1) YES, it should have referred the matter to a division first.
(2) YES, no due notice and hearing.
(3) NO.
Cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC
which the COMELEC in division should first decide, especially true where the cancellation
proceedings originated not from a petition but from a report of the election officer regarding
the lack of qualification of the candidate in the barangay election. The COMELEC en banc
cannot short cut the proceedings by acting on the case without a prior action by a division
because it denies due process to the candidate.
Election Officer Jare o reported to the COMELEC Law Department Bautistas ineligibility for
being a non-registered voter. The COMELEC Law Department recommended to the COMELEC
en banc to deny due course or to cancel Bautistas CoC. COMELEC en banc approved the
recommendation in Resolution No. 5404 dated 23 July 2002. A division of the COMELEC
should have first heard this case. The COMELEC en banc can only act on the case if there is a
motion for reconsideration of the decision of the COMELEC division. Hence, the COMELEC en
banc acted without jurisdiction when it ordered the cancellation of Bautistas certificate of
candidacy without first referring the case to a division for summary hearing.
The proceeding on the cancellation of a certificate of candidacy does not merely pertain to
the administrative functions of the COMELEC. Cancellation proceedings involve the
COMELECs quasi-judicial functions. See table of comparison below.
Citing Villarosa v COMELEC: In the exercise of its adjudicatory or quasi-judicial powers, the
Constitution mandates the COMELEC to hear and decide cases first by division and upon
motion for reconsideration, by the COMELEC en banc.
Citing Baytan v COMELEC: COMELEC is mandated to decide cases first in division, and then
upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 155
powers. Anent Bautistas eligibility/qualification (SC decided not to remand so as to not to
delay the case anymore):
Bautista was aware when he filed his CoC for the office of PB that he lacked one of the
qualifications that of being a registered voter in the barangay where he ran for office. He
therefore made a misrepresentation of a material fact when he made a false statement in his
CoC that he was a registered voter in Bgy. Lumbangan.
An elective office is a public trust. He who aspires for elective office should not make a
mockery of the electoral process by falsely representing himself. The importance of a valid
certificate of candidacy rests at the very core of the electoral process. Under S78 OEC,
falserepresentationofamaterialfactinthecertificateofcandidacyisagroundforthedenialorcancell
ationoftheCoC. The material misrepresentation contemplated by Section 78 refers to
qualifications for elective office.
A candidate guilty of misrepresentation may be (1) prevented from running, OR (2) if elected,
from serving, OR (3) prosecuted for violation of the election laws.
Invoking salus populi est suprema lex, Bautista argues that the peoples choice expressed in
the local elections deserves respect. Electorate cannot amend or waive the qualifications
prescribed by law for elective office. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility. The fact that Bautista, a non-registered voter, was elected
to the office of Punong Barangay does not erase the fact that he lacks one of the
qualifications for Punong Barangay.
GR: disqualification of the winner does not entitle the candidate with the next higher number
of votes to be proclaimed winner.
EXCEPTION: Concurrence of two assumptions: (1) the one who obtained the highest number
of votes is disqualified; and (2) the electorate is fully aware (notoriously known) in fact and in
law of a candidates disqualification so as to bring such awareness within the realm of
notoriety but would nonetheless cast their votes in favor of the ineligible candidate.
Exception does not apply because electorate voted for Bautista as PB under the belief that he
was qualified. There is no presumption that the electorate agreed to the invalidation of their
votes as stray votes in case of Bautistas disqualification.
Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking
sangguniang barangay member, or in the case of his permanent disability, the second highest
ranking sangguniang member, shall become the Punong Barangay.
SALCEDO V. COMELEC | Gonzaga-Reyes, 1999
FACTS
Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the
position of mayor of the municipality of Sara, Iloilo in the May 11, 1998 elections.
Petitioner filed with the Commission on Elections a petition seeking the cancellation of
private respondents certificate of candidacy on the ground that she had made a false
representation therein by stating that her surname was Salcedo. Petitioner contended that
private respondent had no right to use said surname because she was not legally married to
Neptali Salcedo.
Private respondent was eventually proclaimed as the duly elected mayor of Sara, Iloilo. The
Comelecs Second Division ruled by a vote of 2 to 1, that since there is an existing valid
marriage between Neptali Salcedo and a certain Agnes Celiz, the subsequent marriage of the
former with private respondent is null and void. According to the Comelec, the use by private
respondent of the surname Salcedo constitutes material representation and is a ground for
the cancellation of her certificate of candidacy.
PROF. GISELLA N. DIZON-REYES
 156 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

However, in its en banc Resolution, the Comelec overturned its previous resolution, ruling violation of the election laws. It could not have been the intention of the law to deprive a
that private respondents jurisdiction by way of a petition for certiorari under Rule 65, person of such a basic and substantive political right to be voted for a public office upon just
claiming that public respondents ruling was issued in grave abuse of discretion. any innocuous mistake.
Petitioner has made no allegations concerning private respondents qualifications to run for
ISSUE the office of mayor. Aside from his contention that she made a misrepresentation in the use
WON use of husbands surname constitutes a material misrepresentation under S78 of the OEC. of the surname Salcedo, petitioner does not claim that private respondent lacks the
requisite residency, age, citizenship or any other legal qualification necessary to run for a local
HELD/RATIO elective office as provided for in the LGC. Thus, petitioner has failed to discharge the burden
NO. A candidate who used her husbands family name even though their marriage was void was of proving that the misrepresentation allegedly made by private respondent in her certificate
not guilty of misrepresentation concerning a material fact. A candidates name or surname of candidacy pertains to a material matter.
contained in the CoC is required under S74 OEC and is a material misrep. Aside from the requirement of materiality, a false representation under S78 must consist of a
Every person aspiring to hold any elective public office must file a sworn CoC. One of the deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a
things which should be stated therein is that the candidate is eligible for the office. In case candidate ineligible. In other words, it must be made with an intention to deceive the
there is a material misrepresentation in the CoC, COMELEC is authorized to deny due course electorate as to ones qualifications for public office. The use of a surname, when not
to or cancel such certificate upon the filing of a petition by any person pursuant to S78 of the intended to mislead or deceive the public as to ones identity, is NOT WITHIN the scope of the
Code Manner of petition: A verified petition seeking to deny due course or to cancel a provision.
certificate of candidacy may be filed by any person exclusively on the ground that any
material misrepresentation contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and hearing, not
later than fifteen days before the election.
If the petition is filed within the statutory period and the candidate is subsequently declared
by final judgment to be disqualified before the election, he shall not be voted for, and the
votes cast for him shall not be counted.
If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the
Court OR the Comelec shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence
of his guilt is strong. The 15-day period in S78 for deciding the petition is merely directory.
It is essential that the false representation mentioned therein pertain to a material matter for
the sanction imposed by this provision would affect the substantive rights of a candidate - the
right to run for the elective post for which he filed the CoC.
Court has likened a proceeding under S78 to a quo warranto proceeding under S253 since
they both deal with the qualifications of a candidate. There are two instances where a
petition questioning the qualifications of a registered candidate to run for the office for which
his certificate of candidacy was filed can be raised under the OEC: [1] Before election S78 [2]
After election S253
The only difference between the two proceedings is that, under S78, the qualifications for
elective office are misrepresented in the certificate of candidacy and the proceedings must be
initiated before the elections, whereas a petition for quo warranto under S253 may be
brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the
Philippines, and must be initiated within ten days after the proclamation of the election
results. Under S253, a candidate is ineligible if he is disqualified to be elected to office, and he
is disqualified if he lacks any of the qualifications for elective office.
Material misrepresentation contemplated by S78 of the Code refer to qualifications for
elective office. This conclusion is strengthened by the fact that the consequences imposed
upon a candidate guilty of having made a false representation in his CoC are grave to
prevent the candidate from running or, if elected, from serving, or to prosecute him for

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
F. Campaign and Election Propaganda
PENERA V. COMELEC | Chico-Nazario, 2009
FACTS
Penera and private respondent Edgar T. Andanar were mayoralty candidates in Sta. Monica.
Andanar filed before the Office of the Regional Election Director (ORED) a Petition for
Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang
Bayan who belonged to her political party, for unlawfully engaging in election campaigning
and partisan political activity prior to the commencement of the campaign period.
Penera admitted that a motorcade did take place, she explained that it was simply in
accordance with the usual practice in nearby cities and provinces, where the filing of
certificates of candidacy (COCs) was preceded by a motorcade, which dispersed soon after
the completion of such filing. Penera cited Barroso v. Ampig in her defense, wherein the Court
supposedly ruled that a motorcade held by candidates during the filing of their COCs was not
a form of political campaigning.
While the case was pending, elections took place and, as a result thereof, Penera was
proclaimed the duly elected Mayor.
COMELEC Second Division disqualified Penera from continuing as a mayoralty candidate in
Sta. Monica, for engaging in premature campaigning. Further, reliance on the Ampig case is
flawed as the issue in that case is whether or not the defect of the lack of a certification
against non-forum shopping should result to the immediate dismissal of the election cases
filed in that case. There is nothing in said case justifying a motorcade during the filing of
certificates of candidacy.
COMELEC en banc ruled that Penera could no longer advance the arguments set forth in her
Motion for Reconsideration and Supplemental Motion for Reconsideration, given that she
failed to first express and elucidate on the same in her Answer and Position Paper. Penera did
not specifically deny the material averments that the motorcade went as far as Barangay
Mabini, announcing their candidacy and requesting the people to vote for them on Election
Day, despite the fact that the same were clearly propounded by Andanar in his Petition for
Disqualification and Position Paper. Therefore, these material averments should be
considered admitted. Although the COMELEC en banc denied Peneras MR.
Penera filed the instant Petition before SC.
ISSUE
WON Penera was engaged in an election campaign or partisan political activity outside the
campaign period.
HELD/RATIO
YES. Which depends upon: (Culled from Sarmiento dissent) WON S15 RA 8436, as amended by RA
9369 provides a new definition of the term candidate, as a result of which, premature
campaigning may no longer be committed?
When the campaign period starts and [the person who filed his CoC] proceeds with his/her
candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the
filing of his/her COC and prior to the campaign period, as the promotion of his/her election as
a candidate, hence, constituting premature campaigning, for which he/she may be
disqualified. SC reverses Lanot v COMELEC (person who files a certificate of candidacy is not
a candidate until the start of the campaign period).
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 157
Penera raises questions of fact i.e. motorcade was spontaneous and unplanned, supporters
merely joined Penera and the other candidates from her party along the way to, as well as
within the premises of, the office of the COMELEC Municipal Election Officer. And SC is not a
trier of fact!
Definition of prohibited act of premature campaigning under Section 80 OEC: Election
campaign or partisan political activity outside campaign period. It shall be unlawful for any
person, whether or not a voter or candidate, or for any party, or association of persons, to
engage in an election campaign or partisan political activity EXCEPT during the campaign
period: Provided, That political parties may hold political conventions or meetings to
nominate their official candidates within 30 days before the commencement of the campaign
period and 45 days for Presidential and Vice-Presidential election.
Consequence if the commission of the prohibited act of premature campaigning is duly
proven uner Section 68 OEC: Disqualifications. - Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court guilty of, or found by the
Commission of having xxx (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has
been elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election
laws.
The conduct of a motorcade is a form of election campaign or partisan political activity,
falling squarely within the ambit of Section 79(b)(2) OEC, on holding political caucuses,
conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.
Amotorcadeisaprocessionorparade of automobiles or other motor vehicles. The conduct
thereof during election periods by the candidates and their supporters is a fact that need not
be belabored due to its widespread and pervasive practice. The obvious purpose of the
conduct of motorcades is to introduce the candidates and the positions, to which they seek to
be elected, to the voting public; or to make them more visible so as to facilitate the
recognition and recollection of their names in the minds of the voters come election time.
Unmistakably, motorcades are undertaken for no other purpose than to promote the election
of a particular candidate or candidates.
Penera and her witnesses admitted that the vehicles, consisting of two jeepneys and ten
motorcycles, were festooned with multi- colored balloons; the motorcade went around three
barangays in Sta. Monica; and Penera and her partymates waved their hands and threw sweet
candies to the crowd. With vehicles, balloons, and even candies on hand, Penera can hardly
persuade us that the motorcade was spontaneous and unplanned.
Anent definition of a candidate (in response to Sarmiento dissent)
Section 15 of RA 8436 (automated election system), as amended by RA 9369, provides a new
definition of the term candidate, as a result of which, premature campaigning may no
longer be committed. Section 79(a) OEC - a candidate is any person aspiring for or seeking an
elective public office, who has filed a CoC by himself or through an accredited political party,
aggroupment, or coalition of parties.
Section 11 of RA 8436. Official ballot. - The Commission shall prescribe the size and form of
the official ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each position,
the names of candidates shall be arranged alphabetically by surname and uniformly printed
using the same type size. A fixed space where the chairman of the Board of Election
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 158 Ma. Jessa M. Alvarez 2003-29275
inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred
twenty (120) days before the elections: PROVIDED, That, any elective official, whether
national or local, running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president, shall be deemed resigned only
upon the start of the campaign period corresponding to the position for which he/she is
running:
PROVIDED, FURTHER, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period: PROVIDED, FINALLY, That, for purposes of the
May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of
President, Vice President, Senators and candidates under the Party-List System as well as petitions
for registration and/or manifestation to participate in the Party-List System shall be on February 9,
1998 while the deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
Sec 13 of RA 9369 amended Sec 11 of RA 8436: SECTION 15. Official Ballot. - The Commission
shall prescribe the format of the electronic display and/or the size and form of the official
ballot, which shall contain the titles of the position to be filled and/or the proposition to be
voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays
must be constructed to present the names of all candidates for the same position in the same
page or screen, otherwise, the electronic displays must be constructed to present the entire
ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the
ballot options on all pages before completing his or her vote and to allow the voter to review
and change all ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically by surname and
uniformly indicated using the same type size. The maiden or married name shall be listed in
the official ballot, as preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix her/her
signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person
who files his CoC within this period shall only BE CONSIDERED AS A CANDIDATE at the start of
the campaign period for which he filed his CoC: PROVIDED, That, unlawful acts or omissions
applicable to a candidate shall EFFECT ONLY UPON THE START OF THE AFORESAID CAMPAIGN
PERIOD: PROVIDED, FINALLY, That any person holding a public appointive office or position,
including active members of the armed forces, and officers, and employees in government-
owned or-controlled corporations, shall be considered ipso factor resigned from his/her office
and must vacate the same at the start of the day of the filing of his/her certification of
candidacy.
Sarmiento position: Section 80 of the OEC cannot be applied to the present case since, as the
Court held in Lanot v.COMELEC the election campaign or partisan activity, which constitute
the prohibited premature campaigning, should be designed to promote the election or defeat
of a particular candidate or candidates. Under present election laws, while a person may have
filed his/her COC within the prescribed period for doing so, said person shall not be
considered a candidate until the start of the campaign period. Thus, prior to the start of the
campaign period, there can be no election campaign or partisan political activity designed to
promote the election or defeat of a particular candidate to public office because there is no
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
candidate to speak of. Simply put: premature campaigning is practically impossible to commit
at any time.
There is no absolute and irreconcilable incompatibility between Section 15 of RA 8436, as
amended, and Section 80 of the OEC, which defines the prohibited act of premature
campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give
effect to both. Any person in S80 OEC means that premature campaigning may be
committed even by a person who is not a candidate. Lanot v COMELEC declaration re:
outside campaign period BY A CANDIDATE is clearly erroneous. *2+ A person, upon the filing
of his/her COC, already explicitly declares his/her intention to run as a candidate in the
coming elections. The commission by such a person of any of the acts enumerated under
Section 79(b) OEC (partisan political activity/election campaign i.e., holding rallies or parades,
making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of
promoting his/her intended candidacy. When the campaign period starts and said person
proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider
his/her acts, after the filing of his/her COC and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting premature campaigning, for
which he/she may be disqualified. Also, conversely, if said person, for any reason, withdraws
his/her COC before the campaign period, then there is no point to view his/her acts prior to
said period as acts for the promotion of his/her election as a candidate. In the latter case,
there can be no premature campaigning as there is no candidate, whose disqualification may
be sought, to begin with.
*3+ Any unlawful act or omission applicable to a candidate shall take effect only upon the
start of the campaign period, does NOT mean that the acts constituting premature
campaigning can only be committed, for which the offender may be disqualified, during the
campaign period. Contrary to the pronouncement in the dissent, nowhere in the said proviso
was it stated that campaigning before the start of the campaign period is lawful, such that the
offender may freely carry out the same with impunity.
A person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the
start of the campaign period), can already commit the acts described under S79(b) OEC as
election campaign or partisan political activity. However, only after said person officially
becomes a candidate, at the beginning of the campaign period, can said acts be given effect
as premature campaigning under S80 OEC. Only after said person officially becomes a
candidate, at the start of the campaign period, can his/her disqualification be sought for acts
constituting premature campaigning. Obviously, it is only at the start of the campaign period,
when the person officially becomes a candidate, that the undue and iniquitous advantages of
his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit.
Compared to the other candidates who are only about to begin their election campaign, a
candidate who had previously engaged in premature campaigning already enjoys an unfair
headstart in promoting his /her candidacy.
Rationale for prohibition of premature campaigning, citing Chavez v. COMELEC - to level the
playing field for candidates of public office, to equalize the situation between the popular or
rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by
preventing the former from enjoying undue advantage in exposure and publicity on account
of their resources and popularity.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
PENERA V. COMELEC (MR) | Carpio, 2009
FACTS
The assailed Decision disqualified Penera from running for the office of Mayor in Sta. Monica,
Surigao del Norte and declared that the Vice-Mayor should succeed Penera.
ISSUE
WON Penera engaged in an election campaign or partisan political activity outside the campaign
period (conducting a motorcade before the filing of her certificate of candidacy).
HELD/RATIO
NO. Lanot v COMELEC was erroneously overturned. The ruling stands: A person who files a COC is
NOT a candidate until the start of the campaign period.
Essential elements for violation of S80 OEC (1) person engages in an election campaign or
partisan political activity (2) act is designed to promote the election or defeat of a particular
committed.
S 11 of RA 8436 moved the deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January
2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the
CoC make one who filed his certificate of candidacy before 2 January 2004 immediately liable
for violation of S80 if he engaged in election campaign or partisan political activities prior to
the start of the campaign period on 24 March 2004?
Under S11 RA 8436, the only purpose for the early filing of certificates of candidacy is to give
ample time for the printing of official ballots.
Lanot was decided based on the deliberation of the lawmakers. Since the intention of this
provision is just to afford the Comelec enough time to print the ballots, this provision does
not intend to change the campaign periods as presently, or rather election periods as
presently fixed by existing law. Congress wanted to insure that no person filing a CoC under
the early deadline required by the AES would be disqualified or penalized for any partisan
political act done before the start of the campaign period.
Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the 2nd
sentence, 3rd paragraph of the amended S15 RA 8436: Any person who files his certificate of
candidacy within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts
or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the 2nd
sentence 3rd paragraph of the amended S15 RA 8436, which cannot be annulled by this Court
except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot
without repealing this 2nd sentence, because to reverse Lanot would mean repealing this 2nd
sentence.
Clarification of the 1st proviso, 3rd Par: unlawful acts or omissions applicable to a candidate
thus Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate only upon the start of the campaign period.
Before the start of the campaign period, such election offenses cannot be so committed.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 159
When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these
provisions of law do not consider Penera a candidate for purposes other than the printing of
ballots, until the start of the campaign period. There is absolutely no room for any other
interpretation.
Quoting from Justice Carpios dissent in the first decision: The campaign period for local
officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her CoC on 29
March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the
ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes
other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date
when she became a candidate, even if constituting election campaigning or partisan
political activities, are not punishable under S80 OEC. Such acts are within the realm of a
citizens protected freedom of expression. Acts committed by Penera within the campaign
period are not covered by S80 as it punishes only acts outside the campaign period.
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law.
This is specially true to expression or speech, which Congress cannot outlaw except on very
narrow grounds involving clear, present and imminent danger to the State. The mere fact that
the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is
no need for Congress to declare in S15 of RA 8436, as amended by RA 9369, that political
partisan activities before the start of the campaign period are lawful. It is sufficient for
Congress to state that any unlawful act or omission applicable to a candidate shall take effect
only upon the start of the campaign period. The only inescapable and logical result is that
the same acts, if done before the start of the campaign period, are lawful.
A candidate is liable for an election offense only for acts done DURING the campaign period,
not before.
The plain meaning of this provision is that the effective date when partisan political acts
become unlawful as to a candidate is when the campaign period starts. Before the start of the
campaign period, the same partisan political acts are lawful.
The law does NOT state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period: [1] are unlawful, BUT they may be prosecuted only
upon the start of the campaign period. [2] are temporarily lawful, BUT becomes unlawful
upon the start of the campaign period. This is clearly not the language of the law. Besides,
such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of
expression and speech, would be void for vagueness.
CHAVEZ V. COMELEC | Azcuna, 2004
FACTS
Francisco Chavez, on various dates, entered into formal agreements with certain
establishments to endorse their products. Pursuant to these agreements, three billboards
were set up along the Balintawak Interchange of the North Expressway.One billboard showed
petitioner promoting the plastic products of Konka International Plastics Manufacturing
Corporation, and the other two showed petitioner endorsing the clothes of 96 North. One
more billboard was set up along Roxas Boulevard showing petitioner promoting the game and
amusement parlors of G-Box.
Petitioner filed his certificate of candidacy for the position of Senator.
COMELEC issued Resolution No. 6520, which contained Section 32: All propaganda materials
such as posters, streamers, stickers or paintings on walls and other materials showing the
picture, image, or name of a person, and all advertisements on print, in radio or on television
showing the image or mentioning the name of a person, who subsequent to the placement or
PROF. GISELLA N. DIZON-REYES
 160 Ma. Jessa M. Alvarez 2003-29275
display thereof becomes a candidate for public office shall be immediately removed by said
candidate and radio station, print media or television station within 3 days after the
effectivity of these implementing rules; otherwise, he and said radio station, print media or
television station shall be presumed to have conducted premature campaigning in violation of
Section 80 of the Omnibus Election Code.
Petitioner was directed to comply with the said provision by the COMELECs Law Department.
He asked that he be exempted from the application of Section 32, considering that the
billboards adverted to are mere product endorsements and cannot be construed as
paraphernalia for premature campaigning under the rules.
COMELEC ordered him to remove or cause the removal of the billboards, or to cover them
from public view pending the approval of his request.
ISSUES
(1) WON Section 32 of COMELEC Resolution No. 6520 is an invalid exercise of police power.
(2) WON Section 32 of COMELEC Resolution No. 6520 violates the non-impairment clause.
(3) WON Section 32 of COMELEC Resolution No. 6520 is an ex-post facto law.
(4) WON Section 32 of COMELEC Resolution No. 6520 is a violation of the Fair Elections Act.
(5) WON Section 32 of COMELEC Resolution No. 6520 is overbroad.
HELD/RATIO
(1) NO. Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations
to promote the health, morals, peace, education, good order, or safety, and the general welfare of
the people.[1 To determine the validity of a police measure, two questions must be asked: (1) Does
the interest of the public in general, as distinguished from those of a particular class, require the
exercise of police power? and (2) Are the means employed reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are to
prohibit premature campaigning and to level the playing field for candidates of public office,
to equalize the situation between popular or rich candidates, on one hand, and lesser-known
or poorer candidates, on the other, by preventing the former from enjoying undue advantage
in exposure and publicity on account of their resources and popularity.
Under the Omnibus Election Code, election campaign or partisan political activity is defined as
an act designed to promote the election or defeat of a particular candidate or candidates to a
public office. Activities included under this definition are: (1)Forming organizations,
associations, clubs, committees, or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate; (2)Holding political caucuses,
conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3)Making speeches, announcements or commentaries, or holding interviews for or against
the election of any candidate for public office; (4)Publishing or distributing campaign
literature or materials designed to support or oppose the election of any candidate; or
(5)Directly or indirectly soliciting votes, pledges or support for or against a candidate.
It is true that when petitioner entered into the contracts or agreements to endorse certain
products, he acted as a private individual and had all the right to lend his name and image to
these products. However, when he filed his certificate of candidacy for Senator, the billboards
featuring his name and image assumed partisan political character because the same
indirectly promoted his candidacy.
Under Sec. 80 of the OEC: Election campaign or partisan political activity outside campaign
period. It shall be unlawful for any person, whether or not a voter or candidate, or for any
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
party, or association of persons, to engage in an election campaign or partisan political
activity except during the campaign period.x x x. Further, under Article IX (C) (4) of the
Constitution the COMELEC is expressly authorized to supervise or regulate the enjoyment or
utilization of all media communication or information to ensure equal opportunity, time, and
space.All these are aimed at the holding of free, orderly, honest, peaceful, and credible
elections.
(2) NO. The non-impairment clause of the Constitution must yield to the loftier purposes targeted
by the Government. Equal opportunity to proffer oneself for public office, without regard to the
level of financial resources one may have at his disposal, is indeed of vital interest to the public.The
State has the duty to enact and implement rules to safeguard this interest.Time and again, this
Court has said that contracts affecting public interest contain an implied reservation of the police
power as a postulate of the existing legal order.This power can be activated at anytime to change
the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the
general welfare.Such an act will not militate against the impairment clause, which is subject to and
limited by the paramount police power.
(3) NO. Section 32, although not penal in nature, defines an offense and prescribes a penalty for
said offense. Laws of this nature must operate prospectively, except when they are favorable to the
accused.
It should be noted, however, that the offense defined in the assailed provision is not the
putting up of propaganda materials such as posters, streamers, stickers or paintings on walls
and other materials showing the picture, image or name of a person, and all advertisements
on print, in radio or on television showing the image or mentioning the name of a person,
who subsequent to the placement or display thereof becomes a candidate for public office.
Nor does it prohibit or consider an offense the entering of contracts for such propaganda
materials by an individual who subsequently becomes a candidate for public office.
One definitely does not commit an offense by entering into a contract with private parties to
use his name and image to endorse certain products prior to his becoming a candidate for
public office. The offense, as expressly prescribed in the assailed provision, is the non-removal
of the described propaganda materials three (3) days after the effectivity of COMELEC
Resolution No. 6520. If the candidate for public office fails to remove such propaganda
materials after the given period, he shall be liable under Section 80 of the Omnibus Election
Code for premature campaigning.Indeed, nowhere is it indicated in the assailed provision that
it shall operate retroactively.
(4) NO. The Solicitor General rightly points out that the assailed provision does not prohibit
billboards as lawful election propaganda. It only regulates their use to prevent premature
campaigning and to equalize, as much as practicable, the situation of all candidates by preventing
popular and rich candidates from gaining undue advantage in exposure and publicity on account of
their resources and popularity. Moreover, by regulating the use of such election propaganda
materials, the COMELEC is merely doing its duty under the law.
Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the
supervision and regulation by the COMELEC: SECTION 3.Lawful Election Propaganda. --
Election propaganda, whether on television, cable television radio, newspapers or any other
medium is hereby allowed for all registered political parties, national, regional, sectoral
parties or organizations participating under the party list elections and for all bona fide
candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties observance of truth in advertising and
to the supervision and regulation by the Commission on Elections (COMELEC).
(5) NO. A statute or regulation is considered void for overbreadth when it offends the
constitutional principle that a governmental purpose to control or prevent activities
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
constitutionally subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms.
The provision in question is limited in its operation both as to time and scope.It only disallows
the continued display of a persons propaganda materials and advertisements after he has
filed a certificate of candidacy and before the start of the campaign period. Said materials and
advertisements must also show his name and image.
There is no blanket prohibition of the use of propaganda materials and advertisements.During
the campaign period, these may be used subject only to reasonable limitations necessary and
incidental to achieving the purpose of preventing premature campaigning and promoting
equality of opportunities among all candidates.
HALILI V. CA | Aquino, 1978
FACTS
Federico Suntay was the official gubernatorial candidate of the Liberal Party in Bulacan in the
1951 elections. Fortunato F. Halili, the incumbent governor and the head of the Liberal Party
in Bulacan, was Suntay's campaign manager. At the same time, Halili was a public utility
operator.
Suntay needed funds to finance his campaign, funds that Halili, as campaign manager, would
disburse. Suntay found that Halili, apparently an affluent politician-businessman, could solve
his financial problem. Out of friendship, Halili agreed to make cash advances to Suntay.
Revised Election Code, Republic Act No. 180:
SEC. 47. Prohibited contributions. It shall be unlawful for any corporation or entity
operating a public utility or which is in possession of or is exploiting any natural resources of
the nation to contribute or make any expenditure in connection with any election campaign.
SEC. 48. Limitation upon expenses of candidates. No candidate shall spend for his election
campaign more than the total amount of the emoluments for one year attached to the office
for which he is a candidate.
SEC. 183. Election offenses and their classification. of any of the provisions of sections ...
forty-seven, forty-eight ... shall be serious election offenses ...
SEC. 184. Persons criminally responsible. The principals, accomplices, and accessories shall
be criminally responsible for election offenses and for attempt to commit the same. . . .
SEC. 185. Penalties. Any one found guilty of a serious elec. tion offense shall be punished
with imprisonment of not less than one year and one day but not more than five years; ...
To go around the law, a scheme was hatched for the concealment of the loans and advances
of Halili for Suntay's campaign. To implement that scheme, the advances or loans were made
in the names of Halili's trusted employees as dummies.
Suntay on September 4, 1951 executed in favor of Virgilio Ramos, a trusted employee of
Halili, a promissory note for P5,000,
Suntay leased his fishpond (consisting of three parcels of land with an aggregate area of 53
hectares located in Hagonoy, Bulacan) to Ramos and two other trusted employees of Halili
Suntay signed a promissory note for P30,000 in favor of the same lessees or employees of
Halil
Suntay filed a complaint against Halili, Ramos, Santiago and Queyquep in the Court of First
Instance of Quezon City He prayed that the lease and the four promissory notes be declared
void under article 1409 of the Civil Code for lack of consideration and for being contrary to
the said sections 47 and 48.
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2003-29275 October 6, 2011 161
the lower court declared the promissory notes and the lease as void under article 1409 of the
Civil Code and section 48 of the Revised Election Code. It dismissed the respective claims for
damages of the parties because they were allegedly in pari delicto.
Court of Appeals affirmed the lower court's decision
ISSUE
WON the lease and PN made by Halili to Suntay were prohibited contributions.
HELD/RATIO
YES, the factual findings were conclusive. Halili was no ordinary lender and he knew that the rental
and the loans would be spent
for Suntay's candidacy. He was not only Suntay's financial backer but, as campaign manager, he had
a hand in the expenditure of the funds supplied by him to Suntay. He was Suntay's co-principal. As
governor and as Suntay's campaign manager, he could not have been ignorant of the fact that
under S48 Suntay's campaign expenses should not exceed P5,000. The rental of P32,000 and the
loans amounting to P56,000 were evidently designed to promote an unlawful object, i.e. to be
spent in Suntay's political campaign and that it was in excess of the governor's for one year.
Reasons for the prohibition: A public utility operator is prohibited from making a contribution
or expenditure in an election campaign because such a disbursement would diminish his or its
income and would be a controversial disbursement since it would embroil a public utility
operator in partisan politics. The diminution of the income would constrain the public utility
operator to ask for an increase in the rates which may be charged. Any increase in rates
would be detrimental to the public. Public utility operators should not spend their income to
support the election of politicians who, if elected, would pressure the public utility
commission to allow public utilities to increase their rates or who would use their influence to
cover up the violations of law committed by public utility operators. If a corporation operating
a public utility is prohibited from making a political contribution or expenditure, there is no
valid reason for not applying the prohibition to a natural person operating a public service
business. The justification for the pr ohibition exists with respect to natural persons who are
public utility operators. There should be no discriminatory treatment. In any event, to divert
the funds of a public utility business to finance an electoral campaign is a glaring misuse
thereof.
PILAR V. COMELEC | Quiason, 1995
FACTS
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position
of member of the Sangguniang Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to
file his statement of contributions and expenditures.
COMELEC denied the motion for reconsideration of petitioner
Petitioner went to the COMELEC En Banc which denied the petition
present petition for certiorari.
ISSUE
WON Pilar is liable for administrative fine.
HELD/RATIO
PROF. GISELLA N. DIZON-REYES
 162 Ma. Jessa M. Alvarez 2003-29275
YES, the law makes no distinction or qualification as to whether the candidate pursued his
candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to
a candidate who pursued his campaign, but also to one who withdrew his candidacy.
Pertinent provisions: S14 RA 7166 (Synchronized Election): Statement of Contributions and
Expenditures: Effect of Failure to File Statement. Every candidate and treasurer of the political
party shall, within thirty (30) days after the day of the election, file in duplicate with the
offices of the Commission the full, true and itemized statement of all contributions and
expenditures in connection with the election. No person elected to any public office shall
enter upon the duties of his office until he has filed the statement of contributions and
expenditures herein required. The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement required herein within the period
prescribed by this Act. Except candidates for elective barangay office, failure to file the
statements or reports in connection with electoral contributions and expenditures as required
herein shall constitute an administrative offense for which the offenders shall be liable to pay
an administrative fine ranging from One Thousand Pesos ( P1,000.00) to Thirty Thousand
Pesos (P30,000.00), in the discretion of the Commission. The fine shall be paid within thirty
(30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of
execution issued by the Commission against the properties of the offender. It shall be the
duty of every city or municipal election registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of election all candidates residing in his
jurisdiction to comply with their obligation to file their statements of contributions and
expenditures. For the commission of a second or subsequent offense under this Section, the
administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos
(P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to
perpetual disqualification to hold public office. Resolution 1348 to implement the provisions
of law relative to election contributions and expenditures Sec. 13. Statement of contributions
and expenditures: Reminders to candidates to file statements. Within five (5) days from the
day of the election, the Law Department of the Commission, the regional election director of
the National Capital Region, the provincial election supervisors and the election registrars
shall advise in writing by personal delivery or registered mail all candidates who filed their
certificates of candidacy with them to comply with their obligation to file their statements of
contributions and expenditures in connection with the elections. Every election registrar shall
also advise all candidates residing in his jurisdiction to comply with said obligation (Emphasis
supplied).
Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall
enter upon the duties of his office until he has filed the statement of contributions and
expenditures herein required. The same prohibition shall apply if the political party which
nominated the winning candidates fails to file the statement required within the period
prescribed by law. (b) Except candidates for elective barangay office, failure to file statements
or reports in connection with the electoral contributions and expenditures as required herein
shall constitute an administrative offense for which the offenders shall be liable to pay an
administrative fine ranging from One Thousand Pesos (P1,000) to Thirty Thousand Pesos
(P30,000), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise,
it shall be enforceable by a writ of execution issued by the Commission against the properties
of the offender.
For the commission of a second or subsequent offense under this section, the administrative
fine shall be from Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011
discretion of the Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office.
S14 RA 7166 states that every candidate has the obligation to file his statement of
contributions and expenditures. Where the law does not distinguish, courts should not
distinguish, Ubi lex non distinguit nec nos distinguere debemos
The state has an interest in seeing that the electoral process is clean, and ultimately
expressive of the true will of the electorate. One way of attaining such objective is to pass
legislation regulating contributions and expenditures of candidates, and compelling the
publication of the same. Admittedly, contributions and expenditures are made for the
purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348,
Sec. 1). Thus, laws and regulations prescribe [1] what CONTRIBUTIONS are prohibited (B.P.
Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or [2] unlawful (B.P. Blg. 881, Sec. 96), and [3]
what EXPENDITURES are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution
No. 2348, Sec. 7) or [4] lawful (Resolution No. 2348, Sec. 8). - These laws are designed to
compel publicity with respect to matters contained in the statements and to prevent, by such
publicity, the improper use of moneys devoted by candidates to the furtherance of their
ambitions.
It is not improbable that a candidate who withdrew his candidacy has accepted contributions
and incurred expenditures, even in the short span of his campaign. The evil sought to be
prevented by the law is not all too remote.
It is noteworthy that Resolution No. 2348 even contemplates the situation where a candidate
may not have received any contribution or made any expenditure. Such a candidate is not
excused from filing a statement, and is in fact required to file a statement to that effect.
Under Section 15 of Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of
the party has received no contribution, made no expenditure, or has no pending obligation,
the statement shall reflect such fact."
under the 4th Par of S73 OEC, it is provided that "[t]he filing or withdrawal of certificate of
candidacy shall not affect whatever civil, criminal or administrative liabilities which a
candidate may have incurred."
Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative
fine.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
G. Registration of Voters
AKBAYAN-YOUTH V. COMELEC | Buena, 2001
FACTS
AKBAYAN-YOUTH seek to direct the Commission on Elections (COMELEC) to conduct a special
registration before the May 14, 2001 General Elections, of new voters ages 18 to 21.
According to petitioners, around four million youth failed to register on or before the
December 27, 2000 deadline set by the respondent COMELEC under Republic Act No. 8189.
Senator Raul Roco, Chairman of the Committee on Electoral Reforms, Suffrage, and Peoples
Participation invited the COMELEC to a public hearing for the purpose of discussing the
extension of the registration of voters to accommodate those who were not able to register
before the COMELEC deadline.
Commissioners Tancangco and Lantion submitted Memorandum No. 2001-027 on the Report
on the Request for a Two-day Additional Registration of New Voters Only
Commissioner Borra called a consultation meeting among regional heads and representatives
It was the consensus of the group, with the exception of Director Jose Tolentino, Jr. of the
ASD, to disapprove the request for additional registration of voters on the ground that Section
8 of R.A. 8189 explicitly provides that no registration shall be conducted during the period
starting one hundred twenty (120) days before a regular election and that the Commission
has no more time left to accomplish all pre-election activities.
COMELEC issued Resolution No. 3584 to deny the request to conduct a two-day additional
registration of new voters on February 17 and 18, 2001.
AKBAYAN-Youth, SCAP, UCSC, MASP, KOMPIL II (YOUTH) et al. filed before this Court the
instant Petition for Certiorari and Mandamus. Michelle Betito, a student of the University of
the Philippines, likewise filed a Petition for Mandamus
ISSUES
(1) WON COMELEC committed grave abuse of discretion in issuing COMELEC Resolution dated
February 8, 2001.
(2) WON SC can compel respondent COMELEC, through the extraordinary writ of mandamus, to
conduct a special registration of new voters during the period between the COMELECs imposed
December 27, 2000 deadline and the May 14, 2001 general elections.
HELD/RATIO
(1) NO. In a representative democracy such as ours, the right of suffrage, although accorded a
prime niche in the hierarchy of rights embodied
in the fundamental law, ought to be exercised within the proper bounds and framework of the
Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature, which
statutes for all intents and purposes, are crafted to effectively insulate such so cherished right from
ravishment and preserve the democratic institutions our people have, for so long, guarded against
the spoils of opportunism, debauchery and abuse.
To be sure, the right of suffrage ardently invoked by herein petitioners, is not at all absolute.
Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is
subject to existing substantive and procedural requirements embodied in our Constitution,
statute books and other repositories of law.
As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon
certain procedural requirements he must undergo: among others, the process of registration.
Specifically, a citizen in order to be qualified to exercise his right to vote, in addition to the
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 163
minimum requirements set by the fundamental charter, is obliged by law to register, at
present, under the provisions of Republic Act No. 8189, otherwise known as the Voters
Registration Act of 1996.
The act of registration is an indispensable precondition to the right of suffrage. For
registration is part and parcel of the right to vote and an indispensable element in the
election process. Thus, registration cannot and should not be denigrated to the lowly stature
of a mere statutory requirement. Proceeding from the significance of registration as a
necessary requisite to the right to vote, the State undoubtedly, in the exercise of its inherent
police power, may then enact laws to safeguard and regulate the act of voters registration
for the ultimate purpose of conducting honest, orderly and peaceful election, to the
incidental yet generally important end, that even pre-election activities could be performed
by the duly constituted authorities in a realistic and orderly manner one which is not
indifferent and so far removed from the pressing order of the day and the prevalent
circumstances of the times.
Viewed broadly, existing legal proscription and pragmatic operational considerations bear
great weight in the adjudication of the issues raised in the instant petitions.
The petition for exclusion is a necessary component to registration since it is a safety
mechanism that gives a measure of protection against flying voters, non-qualified registrants,
and the like. The prohibitive period, on the other hand serves the purpose of securing the
voters substantive right to be included in the list of voters.
If a special voters registration is conducted, then the prohibitive period for filing petitions for
exclusion must likewise be adjusted to a later date. If we do not, then no one can challenge
the Voters list since we would already be well into the 100-day prohibitive period. Aside from
being a flagrant breach of the principles of due process, this would open the registration
process to abuse and seriously compromise the integrity of the voters list, and consequently,
that of the entire election.
It must be remembered that the period serve a vital role in protecting the integrity of the
registration process. Without the prohibitive periods, the COMELEC would be deprived of any
time to evaluate the evidence on the application. We would be obliged to simply take them at
face value. If we compromise on these safety nets, we may very well end up with a voters list
full of flying voters, overflowing with unqualified registrants, populated with shadows and
ghosts x x x.
COMELECwhich is the constitutional body tasked by no less than the fundamental charter
(Sec. 2, par. 3, Article IX-C of the Constitution) to decide, except those involving the right to
vote, all questions affecting elections, including registration of voters painstakingly and
thoroughly emphasized the operational impossibility of conducting a special registration,
which in its on language, can no longer be accomplished within the time left to (us) the
Commission.
Law does not require that the impossible be done. The law obliges no one to perform an
impossibility, expressed in the maxim, nemo tenetur ad impossible. There is no obligation to
do an impossible thing. Impossibilium nulla obligato est. Hence, a statute may not be so
construed as to require compliance with what it prescribes cannot, at the time, be legally,
coincidentally, it must be presumed that the legislature did not at all intend an interpretation
or application of a law which is far removed from the realm of the possible. Truly, in the
interpretation of statutes, the interpretation to be given must be such that it is in accordance
with logic, common sense, reasonableness and practicality. Thus, we are of the considered
view that the stand-by power of the respondent COMELEC under S28 of RA 8436,
presupposes the possibility of its being exercised or availed of, and not otherwise.
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 164 Ma. Jessa M. Alvarez 2003-29275
(2)NO. Mandamus does not lie. For the determination of whether or not the conduct of a special
registration of voters is feasible, possible or practical within the remaining period before the actual
date of election, involves the exercise of discretion and thus, cannot be controlled by mandamus.
SIAWAN V. INOPIQUEZ | Mendoza, 2001
FACTS
Datu Inocencio Siawan filed a complaint against Judge Aquilino A. Inopiquez, Jr. of the
Municipal Circuit Trial Court, Kananga-Matag-ob, Leyte, for gross ignorance of the law, gross
abuse of power, and misconduct in connection with the latters handling of a criminal case
and two election cases for inclusion of voters.
Respondent has had relatives who ran for public office while he assumed as such presiding
judge. His brother-in-law Edgardo Laurente ran for Mayor during the January 18, 1988
elections but lost to complainant Michael L. Torrevillas. His son, Van Russel, ran for SK
Chairman of Brgy. Riverside and won on the December 4, 1992 election. His daughter, Cheri
May, also ran for the position of Chairman of the Sangguniang Kabataan of Brgy. Riverside on
May 6, 1996. The son, Van Russel, again ran but lost as Mayor of Matag-ob on the May 8,
1995 congressional and local elections.
In all these elections, the respondent never inhibited [himself] from hearing inclusion and
exclusion cases except for once wherein his sister-in-law, Charito Laurente, was the petitioner
in an inclusion proceeding. She ran for Sangguniang Bayan.
In an inclusion proceeding in which the petitioner was retired RTC Judge Pnciano Inopiquez,
respondents uncle, the latter did not inhibit.
Judge Madrona found respondent guilty of grave abuse of official functions and/ or
oppression and recommended that he be fined the sum of P15,000.00 and/ or suspended for
a period of six months.
Office of the Court Administrator submitted its report likewise finding that respondent judge
mishandled Criminal Case No. 584 and recommended that respondent judge be fined
P15,000.00, with warning that repetition of the same or similar offense in the future will be
dealt with more severely.
ISSUE
WON OEC rules on registration of voters were violated.
HELD/RATIO
YES, specifically S139 and S143 of OEC.
Respondent could have recused himself from the moment his disqualification was sought by
the accused Julia Enriqua Seco in Criminal Case No.594. Apparently, he later realized it was
untenable for him to continue hearing the criminal case not only because of his relationship
to Atty. Otadoy but also to Atty. Felix Sun and Edgardo Laurente, both of whom were his
brothers-in-law, who were actively participating in the prosecution of the criminal case.
Respondent hung on to the case as long as he could until this case was filed against him. It is
noteworthy that the order of respondent finally inhibiting himself from trying Criminal Case
No.584 was issued only on March 29, 1994, after the herein letter- complaint of Datu Siawan
had already been prepared and drafted. Indeed, it is too much of a coincidence that
respondent judge's decision to recuse himself in Criminal Case No.584 and Criminal Case
No.1181 came only after the filing of this case against him.
Although the disqualification of judges is limited only to cases where the judge is related to
counsel within the fourth degree of consanguinity or affinity, the Rules nonetheless provide
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October 6, 2011
that a judge may, in the exercise of his discretion, disqualify himself from sitting in a case for
other just and valid reasons. A judge should not handle a case where he might be perceived,
rightly or wrongly, to be susceptible to bias and impartiality, which axiom is intended to
preserve and promote public confidence in the integrity and respect for the judiciary. In this
case, the refusal of respondent to inhibit himself from the conduct of the case and his doing
so only after being threatened with an administrative case could not but create the
impression that he had ulterior motives in wanting to try the case.
Respondent judge was disqualified from hearing the petition of his uncle and it was
immaterial that the petition was meritorious. The purpose of the prohibition is to prevent not
only a conflict of interest but also the appearance of impropriety on the part of a judge. A
judge should take no part in a proceeding where his impartiality might reasonably be
questioned and he should administer justice impartially and without delay. The failure of
respondent judge to inhibit himself constitutes an abuse of his authority and undermines
public confidence in the impartiality of judges.
He disregarded S139 of OEC: Petition for inclusion of voters in the list.- Any person whose
application for registration has been disapproved by the board of election inspectors or
whose name has been stricken out from the list may apply, within twenty days after the last
registration days, to the proper municipal or metropolitan trial court, for an order directing
the board of election inspectors to include or reinstate his name in the list, together with the
certificate of the board of elections inspectors regarding his case and proof of service of
notice of his petition upon a member of the board of election inspectors with indication of
the time, place, and court before which the petition is to be heard.
A petition for inclusion may be filed only by a person (a) whose application for registration has
been disapproved by the BEI or (b) whose name has been stricken out from the list of voters.
No exception is provided by the law. The petition of former Judge Ponciano C. Inopiquez does
not fall within the coverage of the law, since he was neither refused registration by the board
nor his name ordered stricken from the list of voters of Barangay Talisay, Matag-ob, Leyte.
WON Ponciano had good reason for his failure to register as a voter was irrelevant.
Otherwise, every person who is unable to register for whatever reason, i.e., he or she was
working in another province or was out of the country during the registration period, could
simply file a petition for inclusion in order to be able to vote.
S 143 OEC Common rules governing judicial proceedings in the matter of inclusion, exclusion,
and correction of names of voters. (a) Outside of regular office hours, no petition for
inclusion, exclusion, or correction of names of voters shall be received. (b) Notices to the
members of the board of election inspectors and to challenged voters shall state the place,
day and hour in which such petition shall be heard, and such notice may be made by sending
a copy thereof by registered mail or by personal delivery or by leaving it in the possession of a
person of sufficient discretion in the residence of the said person or, in the event that the
foregoing procedure is not practicable, by posting a copy in a conspicuous place in the city
hall or municipal building and in two other conspicuous places within the city or municipality,
at least ten days prior to the day set for the hearing. (c) Each petition shall refer to only one
precinct. (d) No costs shall be assessed in these proceedings. However, if the court should be
satisfied that the application has been filed for the sole purpose of molesting the adverse
party and causing him to incur expenses, it may condemn the culpable party to pay the costs
and incidental expenses. (e) Any candidate who may be affected by the proceedings may
intervene and present his evidence. (f) The decision shall be based on the evidence
presented. If the question is whether or not the voter is real or fictitious, his non-appearance
on the day set for hearing shall be prima facie evidence that the registered voter is fictitious.
In no case shall a decision be rendered upon a stipulation of facts. (g) These applications shall
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
be heard and decided without delay. The decision shall be rendered within six hours after the
hearing and within ten days from the date of its filing in court. Cases appealed to the regional
trial court shall be decided within ten days from receipt of the appeal in the office of the clerk
of court. In any case, the court shall decide these petitions not later than the day before the
election and the decision rendered thereon shall be immediately final and executory,
notwithstanding the provision of Section 138 on the finality of decisions.
MERCADO VS. DYSANGCO | Sandoval-Guttierez, 2002
FACTS
Complainants Flordeliza C. Alejo, Arsenio L. Carpio, Cirilo I. Mercado, and Pedro V. Soriano
charged Judge Hector F. Dysangco, Acting Presiding Judge of the 2nd Municipal Circuit Trial
Court of Natividad-Llanera, Nueva Ecija, and Teresita S. Esteban, Clerk of Court of the same
court, with grave misconduct.
The complainants alleged that prior to the Barangay Elections of May 12, 1997, forty-eight
(48) persons filed with the said court separate petitions for inclusion in the voters list. Of
these forty-eight (48) petitioners, nine (9) were supporters of complainant Cirilo I. Mercado,
while thirty-nine (39) were supporters of his opponent Alejandro Gonzales. Mercado and
Gonzales were candidates for the position of Barangay Chairman of Kabulihan, Gen.
Natividad, Nueva Ecija. Consequently, Mercado and the other complainants filed an
opposition to the petition of the thirty-nine (39) supporters of Gonzales.
respondent judge, when approached by herein complainants, assured them that he did not
issue any order for the inclusion of the thirty-nine (39) petitioners in the voters list of
Barangay Kabulihan.
on the day of the election, complainants were surprised to find thirty-four (34) of the thirty-
nine (39) petitioners with an Order signed by respondent judge and attested by respondent
clerk of court, directing their inclusion in the voters list of Barangay Kabulihan.
this Court resolved to refer the case to the Executive Judge of the Regional Trial Court,
Cabanatuan City, for investigation, report and recommendation.
Court dismissed the complaint against respondent Clerk of Court Teresita S. Esteban.
respondent judge guilty of gross ignorance of the law and grave misconduct constituting
violation of the Code of Judicial Conduct under Section 8, Rule 140 of the Revised Rules of
Court, as amended.
ISSUE
WON judge guilty of gross ignorance of law.
HELD/RATIO
YES, issuance of the controversial Order sans hearing and beyond the ten-day period constitutes
gross ignorance of the law. His failure to observe the requirements of the OEC is inexcusable. As a
judge of the MCTC vested with the jurisdiction to hear and decide petitions for inclusion or
exclusion of voters, he is expected to be familiar with these legal requirements because it can be
assumed that these election cases were not the first cases he has decided. Having accepted the
exalted position of a judge, he must have the basic rules on the palm of his hand. He is expected to
exhibit more than just a cursory acquaintance with the laws and rules of procedure. The litigants
will have faith in the administration of justice only if they believe that the occupants of the bench
cannot be accused of deficiency in their grasp of legal principles. Suspended for 4 months.
Pertinent provision: S143 OEC - Common rules governing judicial proceedings in the matter of
inclusion, exclusion, and correction of names of voters. - (a) Outside of regular office hours,
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October 6, 2011 165
no petition for inclusion, exclusion, or correction of names of voters shall be received. (b)
Notices to the members of the board of election inspectors and to challenged voters shall
state the place, day and hour in which such petition shall be heard, and such notice may be
made by sending a copy thereof by registered mail or by personal delivery or by leaving it in
the possession of a person of sufficient discretion in the residence of the said person or, in the
event that the foregoing procedure is not practicable, by posting a copy in a conspicuous
place in the city hall or municipal building and in two other conspicuous places within the city
or municipality, at least ten days prior to the day set for the hearing. In the interest of justice
and to afford the challenged voter every opportunity to contest the petition for exclusion, the
court concerned may, when the challenged voter fails to appear in the first day set for the
hearing, order that notice be effected in such manner and within such period of time as it
may decide, which time shall in no case be more than ten days from the day the respondent is
first found in default. (c) Each petition shall refer to only one precinct. (d) No costs shall be
assessed in these proceedings. However, if the court should be satisfied that the application
has been filed for the sole purpose of molesting the adverse party and causing him to incur
expenses, it may condemn the culpable party to pay the costs and incidental expenses. (e)
Any candidate who may be affected by the proceedings may intervene and present his
evidence. (f) The decision shall be based on the evidence presented. If the question is
whether or not the voter is real or fictitious, his non- appearance on the day set for hearing
shall be prima facie evidence that the registered voter is fictitious. In no case shall a decision
be rendered upon a stipulation of facts. (g)These applications shall be heard and decided
without delay. The decision shall be rendered within six hours after the hearing and within
ten days from the date of its filing in court. Cases appealed to the regional trial court shall be
decided within ten days from receipt of the appeal in the office of the clerk of court. In any
case, the court shall decide these petitions not later than the day before the election and the
decision rendered thereon shall be immediately final and executory, notwithstanding the
provision of Section 138 on the finality of decisions.
The clear mandate of the law is for the municipal judge a) to decide the petition on the basis
of the evidence presented, b) to conduct a hearing thereon, and c) to render a decision within
10 days from the filing of the petition. Respondent judge, unfortunately, does not know the
above legal provisions.
He did not decide the petition on the basis of petitioners evidence. He could not have done
so. Extant in the record is the fact that the 39 petitioners failed to attend any of the scheduled
hearings. How then could they present evidence?
We are hard put to treat such personal interview as corresponding to the hearing required
by law. A hearing means that a party is given the chance to adduce evidence to support his
side of the case. The minutes of the interview merely show that it is a superficial and
mechanical inquiry on each petitioners age, citizenship, residence and years of residence in
Barangay Kabulihan. The petitioners were not required to swear under oath or to present
proof of their residence. Their lawyers were not even notified.
He issued the order beyond 10 day period required by S143. In releasing the Order on a Friday
and two days before the Barangay Elections, respondent judge effectively deprived the
complainants of their right to appeal to the Regional Trial Court. Clearly, they were deprived
of their right to due process.
PROF. GISELLA N. DIZON-REYES
 166 Ma. Jessa M. Alvarez 2003-29275
H. Casting of Votes and Absentee Voting
LIBANAN V. HRET | Vitug, 1997
FACTS
Petitioner Marcelino Libanan and private respondent Jose Ramirez were among the
candidates for the lone congressional seat of Eastern Samar in the May 1995 elections.
Board of Canvassers of Eastern Samar proclaimed respondent Ramirez to have been duly
elected Representative of the District
Libanan seasonably filed an election protest before the HRET claiming, among other things,
that the 08th May 1995 elections in Eastern Samar were marred by massive electoral
irregularities perpetrated or instigated by respondent Ramirez, as well as his leaders and
followers. He also maintained that the election returns and/or ballots in certain precincts
were tampered with, substituted, or systematically marked in favor of respondent Ramirez.
In his answer and counter-protest Ramirez denied the charges and claimed that Libanan
engaged in massive vote buying, lansadera, terrorism and tearing of the list of voters to
disenfranchise voters therein listed. He prayed for the dismissal of the protest
The revision of ballots in the protested precincts commenced. while the revision of the
counter-protested precincts was being held, Ramirez filed an "Urgent Motion to
Withdraw/Abandon Counter-Protest in Specific Municipalities/Precincts" Libanan filed an
opposition thereto but the motion was eventually granted by the Chairman of the HRET and
subsequently confirmed in a resolution by the tribunal.
HRET designated a Hearing Commissioner and a Deputy Hearing Commissioner for the
reception of evidence.
HRET: "No spurious ballot was found in this case. For a ballot to be rejected for being
spurious, the ballot must not have any of the following authenticating marks: a) the COMELEC
watermark; b) the signatures or initial of the BEI Chairman at the back of the ballot; and c) red
and blue fibers. In the present case, all the ballots examined by the Tribunal had COMELEC
watermarks.
"The Tribunal did not adopt protestant's submission in his Memorandum that the absence of
thumbmark or BEI Chairman's signature at the back of the ballot rendered the ballot spurious.
The applicable law on this issue is Sec. 24, R.A. 7166. It reads:
"'In every case before delivering an official ballot to the voter, the Chairman of the Board of
Election Inspectors shall, in the presence of the voter, affix his signature at the back thereof.
Failure to so authenticate shall be noted in the minutes of the board of election inspectors
and shall constitute an election offense punishable under Section 263 and 264 of the Omnibus
Election Code.'
"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166 provides that failure
to authenticate the ballot shall constitute an election offense, there is nothing in the said law
which provides that ballots not so authenticated shall be considered invalid.
HRET ruled in favor of respondent Ramirez
Petitioner Libanan moved for a reconsideration arguing that the absence of the BEI
Chairman's signature at the back of the ballots could not but indicate that the ballots were
not those issued to the voters during the elections.
HRET credited petitioner Libanan with thirty (30) votes because of the error in the
computation of the base figure and rejected twelve (12) ballots for respondent Ramirez.
Respondent Ramirez, nevertheless, remained to be the winner with a lead of ninety-nine (99)
votes in his favor. As regards the absence of BEI Chairman's signature at the back of the
ballots, the HRET stressed that "Fraud is not presumed. It must be sufficiently established.
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October 6, 2011
Moreover, Section 211 of the Omnibus Election Code provides in part that 'in the reading and
appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and
good reason to justify its rejection.' The absence of the BEI Chairman's signature at the back
of the ballot cannot be an indication of ballot switching or substitution. At best, such absence
of BEI Chairman's signature is a prima facie evidence that the BEI Chairmen concerned were
derelict in their duty of authenticating the ballots. Such omission, as stated in the Decision, is
not fatal to the validity of the ballots."
ISSUE
WON the ballots which do not contain BEI chairmans signature at the back should have been
declared spurious.
HELD/RATIO
NO, absence of the signature of the Chairman of the BEI at the back of the ballot does not
invalidate it.
For a ballot to be rejected for being spurious, the ballot must not have any of the following
authenticating marks: a) the COMELEC watermark; b) the signatures or initial of the BEI
Chairman at the back of the ballot; and c) red and blue fibers. In the present case, all the
ballots examined by the Tribunal had COMELEC watermarks.
Anent the BEI Chairman's signature, while S24 of RA 7166 provides that failure to
authenticate the ballot shall constitute an election offense, there is nothing in the said law
which provides that ballots not so authenticated shall be considered invalid. In fact, the
members of the Committee on Suffrage and Electoral Reforms agreed during their
deliberation on the subject that the absence of the BEI Chairman's signature at the back of
the ballot will not per se make a ballot spurious.
SEC. 24. Signature of Chairman at the back of Every Ballot. - In every case before delivering an
official ballot to the voter, the Chairman of the Board of Election Inspectors shall, in the
presence of the voter, affix his signature at the back thereof. Failure to authenticate shall be
noted in the minutes of the Board of Election Inspectors and shall constitute an election
offense punishable under Section 263 and 264 of the Omnibus Election Code.
There is really nothing in the above law to the effect that a ballot which is not so
authenticated shall thereby be deemed spurious. The law merely renders the BEI Chairman
accountable for such failure. The courts, may not, in the guise of interpretation, enlarge the
scope of a statute and embrace situations neither provided nor intended by the lawmakers.
Where the words and phrases of a statute are not obscure and ambiguous, the meaning and
intention of the legislature should be determined from the language employed, and where
there is no ambiguity in the words, there should be no room for construction.
Why do we require authentication by BEI chairs signature in case of barangay elections under
BP 222? The difference in the rulesmay not be too difficult to discern. The stringent
requirements in BP 222 should be justifiable considering that the official barangay ballots
would be provided by the city or municipality concerned with the COMELEC merely
prescribing their size and color. Thus, the official ballots in BP 222, being supplied and
furnished by the local government themselves, the possibility of the ballots being easily
counterfeited might not have been discounted. The absence of authenticating marks
prescribed by law, i.e., the signature of the chairman of the Board of Election Tellers at the
back of the ballot, could have well been really thought of to be fatal to the validity of the
ballot.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
DE GUZMAN V. SISON | Per Curiam, 2001
FACTS
In a letter, complainant Hilario De Guzman, Jr., the winning mayoralty candidate for San
Jacinto, Pangasinan in the May 11, 1998 elections, called the Court's attention to alleged
irregularities in the adjudication of the election protest filed by his rival, which was presided
by respondent judge.
The letter was subsequently indorsed by the Chief Justice to the Office of the Court
Administrator
Officer-in-Charge of the Legal Office-OCAD, Docket and Clearance Division, advised
complainant to file a formal complaint against respondent judge. Accordingly, complainant
filed a formal complaint
complainant wrote a letter to the OCA praying for the early resolution of the case, and
submitted therewith a copy of the decision of the COMELEC's 2nd Division reversing the
ruling of respondent judge in Election Case This decision of the COMELEC's 2nd Division was
subsequently affirmed by the COMELEC sitting en banc.
Investigating Justice Marina L. Buzon submitted a Report: Hilario de Guzman, Jr. was
proclaimed as the duly elected Mayor of San Jacinto, Pangasinan in the May 11, 1998
elections, garnering 4,248 votes as against 4,104 votes obtained by Rolando E. Columbres.
Columbres filed an election protest against the complainant presided over by respondent
Judge Deodoro J. Sison.
A decision was rendered by respondent finding that the revision and physical counting of
votes/ballots in forty two (42) precincts contested by Columbres showed that the latter won
the mayoralty elections of San Jacinto, Pangasinan.
Complainant charged the respondent with manifest partiality and gross ignorance of the law
in the appreciation of the ballots in Election Case.
On the basis of the foregoing facts, the Investigating Justice found respondent Judge guilty of
gross ignorance of the law and manifest partiality and recommended that he be dismissed
from the service with forfeiture of all retirement benefits and privileges with prejudice to
reemployment in any government agency or instrumentality.
ISSUE
WON Judge Sison was guilty of partiality when he nullified De Guzmans ballots.
HELD/RATIO
YES, it cost him dismissal from the judiciary.
The Court agrees with the foregoing findings of Justice Buzon. The culpability of respondent
Judge Sison has been established not just by substantial evidence which suffices in an
administrative investigation, but by an overwhelming preponderance thereof.
Clearly, PB 222 and S36 of Comelec Resolution No. 1539 invoked by respondent in the
resolution of Election Case No. D-31-98 were inapplicable because they applied to the
election of barangay officials in 1982 and they have already been repealed and rendered
obsolete. It is perplexing why respondent judge insisted in applying BP 222 which pertained
only to the election of barangay officials in 1982 instead of BP 882, enacted on December 3,
1985, which expressly governs mayoralty elections including those held in 1998.
When asked to explain why he decided the election case contradictory to existing law and
controlling jurisprudence, respondent judge, pleading good faith, argued that whenever
ballots contain obvious markings visible on their faces, the presumption is that said markings
on the ballots were placed thereat by the voters themselves, thus nullifying the said ballots.
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Laws and statutes governing elections contests especially the appreciation of ballots must be
liberally construed to the end that the will of the electorate in the choice of public officials
may not be defeated by technical infirmities.
Proffered excuse in nullifying the ballots cast in petitioner's favor was thus fittingly overruled
by the COMELEC en banc in its Resolution dated January 25, 2000 in EAC A-20-98: No ballot
should be discarded as marked unless its character as such is unmistakable. The distinction
should always be between marks that were apparently carelessly or innocently made, which
do not invalidate the ballot, and marks purposely placed thereon by the voter with a view to
possible future identification, which invalidates it. The marks which shall be considered
sufficient to invalidate the ballot are those which the voter himself deliberately placed on his
ballot for the purpose of identifying it thereafter. In other words, a mark placed on the ballot
by a person other than the voter himself does not invalidate the ballot as marked.
There is no legal presumption that the alleged markings were deliberately made by the voter
himself and for the purpose of identifying it thereafter. In the absence of any circumstance
showing that the intention of the voter to mark the ballot is unmistakable, or any evidence
aliunde to show that the words or marks were deliberately written or put therein to identify
the ballots, the ballot should not be rejected. The ballots should be read with reasonable
liberality, so that the reading be in favor of the will of the voter, rather than in favor of the
inefficiency of the ballot by reason of technical causes.
Slight variations in writing are not sufficient to show that the ballot was prepared by two
hands and where there is doubt as to whether the names were written by two persons, the
doubt must be resolved in favor of the validity of the ballot.
Every ballot is presumed valid unless there is a clear and good reason to justify its rejection.
Whether or not a ballot is written by one or two persons or spurious or marked or defective
because of certain infirmities can be determined by a close scrutiny of the face of the ballot
and the validity or invalidity thereof can be deduced from the manner the voters prepared
their ballots.
I. Postponement of Election
BASHER V. COMELEC | Panganiban, 2000
FACTS
Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both candidates
for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur during the
May 12, 1997 barangay election. The election was declared a failure and a special one was set
for June 12, 1997. Again, the election failed and was reset to August 30, 1997.
According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997
because of the prevailing tension in the said locality. Election Officer Diana DatuImam
reported that she was allegedly advised by some religious leaders not to proceed with the
election because "it might trigger bloodshed." With the arrival of additional troops, the
election officer proceeded to Maidan to conduct the election starting at 9:00 p.m. until the
early morning of the following day. The holding of the election at that particular time was
allegedly announced "over the mosque."
The tally sheet for the said "election" showed the following results: private respondent 250
votes; petitioner 15 votes; and Baulo Abdul Razul, a third candidate 10 votes. Private
respondent was proclaimed winner.
Petitioner then filed a Petition before the Comelec praying that the election be declared a
failure. Alleging that no election was conducted in the place and at the time prescribed by
PROF. GISELLA N. DIZON-REYES
 168 Ma. Jessa M. Alvarez
law, petitioner narrated that there was a dispute that day (August 30, 1997) among the
candidates regarding the venue of the election in the lone voting precinct of the barangay. In
order to avoid bloodshed, they ultimately agreed that no election would be conducted.
Accordingly, the election officer turned over for safekeeping the ballot box containing
election paraphernalia to the acting station commander (OIC) of the Philippine National Police
(PNP). The following day, petitioner and the third candidate were surprised to learn that the
election officer had directed the Board of Election Tellers to conduct the election and to fill up
the election returns and certificates of canvass on the night of August 30, 1997 at the
residence of the former mayor. Petitioner also stated that no announcement to hold the
election at the former mayors house that night was ever made.
Comelec dismissed the Petition. Hence, recourse to this Court.
ISSUE
WON the election held on the date, at the time and in the place other than those officially
designated by the law and by the Comelec was valid.
HELD/RATIO
NO. An election must be held at the place, date and time prescribed by law. Likewise, its
suspension or postponement must comply with legal requirements. Otherwise, it is irregular and
void.
The peculiar set of facts in the present case show not merely a failure of election but the
absence of a valid electoral exercise. Otherwise stated, the disputed "election" was illegal,
irregular and void.
Citing Mitmug v. COMELEC: A failure of election requires the concurrence of two conditions,
(1) no voting took place in the precinct or precincts on the date fixed by law, OR even if there
was voting, the election resulted in a failure to elect; and (2) the votes not cast would have
affected the result of the election.
Election situs was illegal. S42 OEC chairman of the board of election tellers shall designate
the public school or any other public building within the barangay to be used as polling place
in case the barangay has one election precinct...held former mayors house
Voting time was irregular. ...casting of votes shall start at 7AM and shall end at 3PM, except
when there are voters present within thirty meters in front of the polling place who have not
yet cast their votes, in which case the voting shall continue but only to allow said voters to
cast their votes without interruption The strained interpretation espoused by the COMELEC
encourages the conduct of clandestine "elections," for it virtually authorizes the holding of
elections beyond normal hours, even at midnight when circumstances could be more
threatening and conducive to unlawful activities. On a doctrinal basis, such nocturnal
electoral practice discourages the people's exercise of their fundamental right of suffrage, by
exposing them to the dangers concomitant to the dead of night, especially in far-flung
barangays constantly threatened with rebel and military gunfires.
Election date was invalid. COMELEC scheduled the special election. Any suspension or
postponement of an election is governed by S2 of RA 6679 which states that [w]hen for any
serious cause e.g. rebellion, insurrection, violence, terrorism, loss or destruction of election
paraphernalia, and any analogous causes of such nature that the holding of a free, orderly
and honest election should become impossible in any barangay, COMELEC motu proprio OR
upon sworn petition of 10 registered voters of a barangay, after summary proceedings of the
existence of such grounds, shall SUSPEND or POSTPONE the election therein to a date
reasonably close to the date of the election that is not held or is suspended or postponed, or
which resulted in a failure to elect, but not later than 30 days after the cessation of the cause
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2003-29275 October 6, 2011
for such suspension or postponement of the election or failure to elect, and in all cases not
later than 90 days from the date of the original election.
Election Officer Datu-Imam practically postponed the election from the official original
schedule, attempted to justify her postponement of the election by citing threats of violence
and bloodshed. Allegedly because of the tension created by armed escorts of the municipal
mayor and the military, Datu-Imam declared a failure of election in order "to ease their
aggression."
As election officer, she has no authority to declare a failure of election. Only COMELEC has
legal authority to exercise such awesome power. An election officer alone, or even with the
agreement of the candidates, cannot validly postpone or suspend the elections.
Election Postponement was invalid. Datu-Imam did not follow the procedure laid down by law
conduct any proceeding, summary or otherwise, to find out WON any of the legal grounds for
the suspension or postponement or the declaration of failure of the election actually existed.
Notice was irregular. Electorate was not given ample notice of the exact schedule and venue
of the election. Sucha bbreviated announcement "over the mosque" at such late hour did
NOT constitute sufficient notice to the electorate. Consequently, not the entire electorate or
even a respectable number could have known of the activity and actually participated therein
or voluntarily and discerningly chosen not to have done so.
CAWASA V. COMELEC | Carpio, 2002
FACTS
During the May 14, 2001 elections, petitioner Jun Rascal Cawasa and private respondent
Adbulmalik M. Manamparan were among the candidates for mayor in the Municipality of
Nunungan, Lanao del Norte. Out of the forty (40) precincts in Nunungan, only thirty-six (36)
functioned, as there was a failure of election in the remaining four (4) precincts.
Municipal Board of Canvassers of Nunungan deferred the proclamation of all winning
candidates due to the failure of the said 4 precincts to function.
Special elections were set on May 30, 2001 considering that the number of registered voters
in the remaining four precincts would affect the election results.
The Comelec promulgated Resolution No. 4360 on May 21, 2001 authorizing the conduct of
special elections in the affected areas, including barangays Bangko, Cabasaran and Liangan in
Nunungan.
As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001.
The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4
precincts on May 31, 2001. After the canvassing of the election returns, the Municipal Board
of Canvassers proclaimed the winning candidates on the basis of the earlier 36 election
returns of the May 14, 2001 regular elections and the 4 election returns of the 4 precincts
subject of the special elections.
During the May 14, 2001 regular elections, the lead of petitioner Cawasa was eighty six (86).
After the May 30, 2001 special elections, private respondent Manamparan overcame the
margin with a lead of 297 votes.
Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral
Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin
Sangaran were also proclaimed as councilors of Nunungan.
Manamparan filed an appeal and petition to annul the proclamation of petitioner Cawasa.
The appeal/petition was dismissed by the Comelec Second Division.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
Manamparan filed a petition for Annulment of Election Results during the May 30, 2001
Special Elections in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del
Norte, and Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction.
Comelec en banc promulgated a resolution annulling the results of the special elections of the
4 precincts. Comelec en banc also annulled the proclamation of all winning candidates insofar
as the results in the 4 contested precincts affect the standing of candidates.
ISSUE
WON COMELEC erred in annulling election results.
HELD/RATIO
NO.
Legality of the Transfer of Polling Places and Appointment of Military Personnel as Members of the
Board of Election Inspectors
There is no dispute that the venue of the special elections was transferred to the adjacent
municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located
in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military
personnel were appointed as members of the Board of Election Inspectors in the 4 precincts.
Petitioners and private respondent Manamparan agree that the 4 precincts covered by the
special elections with a total of 845 registered voters will affect the result of the elections.
Sections 152, 153 and 154 of the Omnibus Election Code
SEC. 152. Polling Place. A polling place is the building or place where the board of election
inspectors conducts its proceedings and where the voters shall cast their votes.
SEC. 153. Designation of polling places. The location of polling places designated in the
preceding regular election shall continue with such changes as the Commission may find
necessary, after notice to registered political parties and candidates in the political unit
affected, if any, and hearing: provided, That no location shall be changed within forty-five
days before a regular election and thirty days before a special election or a referendum or
plebiscite, except in case it is destroyed or it cannot be used.
SEC. 154. Requirements for polling places. Each polling place shall be, as far as practicable, a
ground floor and shall be of sufficient size to admit and comfortably accommodate forty
voters at one time outside the guard rail for the board of election inspectors. The polling
place shall be located within the territory of the precinct as centrally as possible with respect
to the residence of the voters therein and whenever possible, such location shall be along a
public road. No designation of polling places shall be changed except upon written petition of
the majority of the voters of the precinct or agreement of all the political parties or by
resolution of the Commission upon prior notice and hearing.
The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued
on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election
Code. As clearly provided by the law, the location of polling places shall be the same as that of
the preceding regular election. However, changes may be initiated by written petition of the
majority of the voters of the precinct or agreement of all the political parties or by resolution
of the Comelec after notice and hearing. But ultimately, it is the Comelec which determines
whether a change is necessary after notice and hearing. The Comelec has unequivocally
stated that nothing in the records showed that notice was given to the political candidates
and registered voters affected by the transfer. Moreover, there is no question that the
transfer of venue was made within the prohibited period of thirty days before the special
election.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 169
Next, the appointment of military personnel as members of the BEI is another grave electoral
irregularity that attended the special elections held on May 30, 2001. There was absolutely no
legal basis for the appointment of military personnel as members of the BEI. Verily, the
appointments were devoid of any justification other than the bare assertion, again, that the
political parties and municipal candidates agreed on the said arrangement. The pertinent
provisions of the Omnibus Election Code regarding the composition, appointments and
substitution of the members of the BEI are quoted as follows:
SEC. 164. Composition and appointments of board of election inspectors. - At least thirty
days before the date when the voters list is to be prepared in accordance with this Code, in
the case of a regular election or fifteen days before a special election, the Commission shall,
directly or through its duly authorized representatives, constitute a board of election
inspectors for each precinct to be composed of a chairman and a poll clerk who must be
public school teachers, priority to be given to civil service eligibles, and two members, each
representing the two accredited political parties. The appointment shall state the precinct to
which they are assigned and the date of the appointment.
SEC. 165. Oath of the members of the board of election inspectors. - The members of the
board of election inspectors, whether permanent, substitute or temporary, shall before
assuming their office, take and sign an oath upon forms prepared by the Commission, before
an officer authorized to administer oaths or, in his absence, before any other member of the
board of election inspectors present, or in case no one is present, they shall take it before any
voter. The oaths shall be sent immediately to the city or municipal treasurer.
SEC. 166. Qualification of members of the board of election inspectors. - No person shall be
appointed chairman, member or substitute member of the board of election inspectors
unless he is of good moral character and irreproachable reputation, a registered voter of the
city or municipality, has never been convicted of any election offense or of any other crime
punishable by more than six months of imprisonment, or if he has pending against him an
information for any election offense. He must be able to speak and write English or the local
dialect.
SEC. 170. Relief and substitution of members of the board of election inspectors. - Public
school teachers who are members of the board of election inspectors shall not be relieved
nor disqualified from acting as such members, except for cause and after due hearing.
Section 13 of Republic Act No. 6646 modified Section 164 of the Omnibus Election Code. Said
section reads:
SEC. 13. Board of Election Inspectors. The board of election inspectors to be constituted by
the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a
chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom
shall be public school teachers, giving preference to those with permanent appointments. In
case there are not enough public school teachers, teachers in private schools, employees in
the civil service, or other citizens of known probity and competence who are registered voters
of the city or municipality may be appointed for election duty.
Clearly, the BEI shall be composed of a chairman and two members, all of whom are public
school teachers. If there are not enough public school teachers, teachers in private schools,
employees in the civil service or other citizens of known probity and competence may be
appointed. It was highly irregular to replace the duly constituted members of the BEI, who
were public school teachers. Nothing in petitioners pleadings would even suggest that the
substitution was made for cause and after hearing.
PROF. GISELLA N. DIZON-REYES
 170 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

Denial of Due Process

Section 4 of Republic Act No. 7166 or The Synchronized Elections Law of 1991 provides that
the Comelec sitting en banc by a majority vote of its members may decide, among others, the
declaration of failure of election and the calling of special elections as provided in Section 6 of
the Omnibus Election Code. Said Section 6, in turn, provides as follows:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date fixed,
or had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such cases
the failure or suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect.
A prayer to annul election results, as in the instant case, and a prayer to declare failure of
elections based on allegations of fraud, terrorism, violence or analogous causes, are actually
of the same nature and the Election Code denominates them similarly.
The Comelec may exercise the power to annul election results or declare a failure of election
motu proprio or upon a verified petition. The hearing of the case shall be summary in nature.
The petition was heard by the Comelec en banc on June 27, 2001. During the said hearing,
the Comelec directed the parties, as agreed upon, to submit their respective memoranda
within five (5) days from date and after which, the case shall be submitted for resolution.
Petitioners were duly heard through their pleadings, thus, there is no denial of procedural due
process to speak of. Moreover, contrary to the claim of petitioners, the Municipal Board of
Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing
held on June 27, 2001 and furnished a copy of the petition.
The pre-conditions for declaring a failure of election are: (1) that no voting has been held in
any precinct or precincts because of force majeure, violence, terrorism, fraud or other
analogous causes and (2) that the votes not cast therein are sufficient to affect the results of
the elections. The concurrence of these two circumstances justifies the calling of special
elections.
Here, the Comelec found that the special elections were vitiated by fraud due to the illegal
transfer of the polling places and the appointment of military personnel as members of the
BEI. Inevitably, the Comelec could not ascertain who voted during the special elections. The
circumstances were such that the entire electoral process was not worthy of faith and credit,
hence, in practical effect no election was held.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
J. Failure of Elections
CARLOS V. ANGELES | Pardo, 2000
FACTS
Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates for the position
of mayor of the municipality of Valenzuela, Metro Manila during the May 11, 1998 elections.
Municipal Board of Canvassers, Valenzuela, Metro Manila proclaimed petitioner as the duly
elected mayor of Valenzuela
respondent Antonio M. Serapio who obtained the second highest number of votes, filed with
the Regional Trial Court, Valenzuela, Metro Manila, an election protest challenging the
results.
the case was ultimately assigned to the Regional Trial Court, Caloocan City, Branch 125,
presided over by respondent Judge Adoracion G. Angeles.
The court denied the motion to dismiss.
Petitioner elevated the order to the Commission on Elections on petition for certiorari and
prohibition.
The revision of the ballots showed the following results (final tally):
(a) protestant Serapio - 66,602 votes.
(b) protestee Carlos - 83,609 votes.
Nevertheless, in its decision, the trial court set aside the final tally of valid votes because of its
finding of significant badges of fraud, namely:
1. The keys turned over by the City Treasurer to the court did not fit into the padlocks of the
ballot boxes that had to be forcibly opened;
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the seven
(7) ballot boxes did not contain any election returns;
3. Some schools where various precincts were located experienced brownouts during the
counting of votes causing delay in the counting although there was no undue commotion or
violence that occurred;
4. Some of the assigned watchers of protestant were not in their posts during the counting of
votes.
On the basis of the foregoing badges of fraud, the trial court declared that there was enough
pattern of fraud in the conduct of the election for mayor in Valenzuela. The court held that
the fraud was attributable to the protestee who had control over the election paraphernalia
and the basic services in the community such as the supply of electricity.
the trial court rendered a judgment ruling that the perpetuation of fraud had undoubtedly
suppressed the true will of the electorate of Valenzuela and substituted it with the will of the
protestee. Notwithstanding the plurality of valid votes in favor of the protestee, the trial court
set aside the proclamation of protestee Jose Emmanuel Carlos by the Municipal Board of
Canvassers and declared protestant Antonio M. Serapio as the duly elected mayor of
Valenzuela City.
petitioner filed a notice of appeal from the decision of the trial court to the Commission on
Elections.
petitioner filed original special civil action for certiorari and prohibition with preliminary
injunction or temporary restraining order seeking to annul the decision of the Regional Trial
Court.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE
2003-29275 October 6, 2011 171
ISSUE
WON TC was right in declaring failure of election because of the badges of fraud.
HELD/RATIO
NO, in fact TC has no jurisdiction to declare failure of election.
Assuming for the nonce that the trial court was correct in holding that the final tally of valid
votes as per revision report may be set aside because of the significant badges of fraud, the
same would be tantamount to a ruling that there were no valid votes cast at all for the
candidates, and, thus, no winner could be declared in the election protest case. In short, there
was failure of election.
The proper remedy is an action before the Commission on Elections en banc to declare a
failure of election or to annul the election. However, this case was an election protest case
involving an elective municipal position which, under S251 OEC, falls within the exclusive
original jurisdiction of the appropriate RTC.
Nonetheless, the annulment of an election on the ground of fraud, irregularities and
violations of election laws may be raised as an incident to an election contest. Such grounds
for annulment of an election may be invoked in an election protest case. However, an election
must not be nullified and the voters disenfranchised whenever it is possible to determine a
winner on the basis of valid votes cast, and discard the illegally cast ballots.
Carlos admittedly received 17,007 valid votes more than the Serapio, and therefore the
nullification of the election would not lie. The power to nullify an election must be exercised
with the greatest care with a view not to disenfranchise the voters, and only under
circumstances that clearly call for such drastic remedial measure
It is the COMELEC sitting en banc that is vested with exclusive jurisdiction to declare a failure
of election. Basis: S6 OEC and S4 RA 7166
Petition to ANNUL an election S6 OEC, two conditions must be averred in order to support a
sufficient cause of action. These are: [1] the illegality must affect more than 50% of the
votes cast and [2] the good votes can be distinguished from the bad ones. It is only when
these two conditions are established that the annulment of the election can be justified
because the remaining votes do not constitute a valid constituency.
For declaration of FAILURE of election, two conditions must occur: [1] no voting has taken
place in the precincts concerned on the date fixed by law OR even if there were voting, the
election nevertheless resulted in a failure to elect; and [2] the votes not cast would affect the
result of the election.
The only three instances where a failure of elections may be declared, namely: [a] the
election in any polling place has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous causes [FMVTFA]; [b] the election in any polling
place had been suspended before the hour fixed by law for the closing of the voting on
account of FMVTFA or [c] after the voting AND during the preparation and transmission of the
election returns or in the custody or canvass thereof, such election results in a failure to elect
on account of FMVTFA - TC in its decision actually pronounced a failure of election by
disregarding and setting aside the results of the election.
T he commission of fraud cannot be attributed to the protestee. There was no evidence on
record that protestee had a hand in any of the irregularities that protestant averred.
COMELEC has control of paraphernalia while MERALCO controlled the electricity.
What is important, however, is that the voters of Valenzuela were able to cast their votes
freely and fairly. And in the election protest case, TC was able to recount and determine the
valid votes cast. - Assuming that the TC has jurisdiction to declare a failure of
election, the extent of that power is limited to the annulment of the election and the calling
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
 172 Ma. Jessa M. Alvarez
not declare a
winner. A permanent vacancy is thus created. In such eventuality, the duly elected vice-mayor
shall succeed as provided by law.
Election protest case remanded to TC.
BATABOR V. COMELEC | Sandoval-Guttierez, 2004
FACTS
Barangay and Sangguniang Kabataan Elections, Hadji Rasul Batabor, petitioner, and Mocasim
Abangon Batondiang, private respondent, ran as opposing candidates for the position of
Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur. It was petitioners re-election
bid being then the incumbent Punong Barangay.
private respondent won as Punong Barangay garnering 123 votes, as against petitioners 94
votes, or a difference of 29 votes.
petitioner filed with the COMELEC a petition to declare a failure of election in Precincts 3A, 4A
and 5A of Barangay Maidan
The petition alleges that during the election, the voting started at around 8:30 oclock in the
morning. It was temporarily suspended during the lunch break and was to resume at 1:00
oclock in the afternoon of that day. Butafter lunch, the Chairwoman of the Board of Election
Inspectors (BEI) of Precincts 3A, 4A and 5A suddenly tore all the unused official ballots. Thus,
the voting was not continued. The BEI then padlocked the ballot boxes. At that time,
petitioner was not present. Despite the note of Election Officer Taha Casidar directing the BEI
to resume the voting, the latter did not allow the remaining voters to vote. Thus, petitioners
relatives and followers, numbering more than 100, were not able to cast their votes.
COMELEC En Banc issued the assailed Resolution denying the petition.
Petitioner now contends in his petition for certiorari before us that the COMELEC committed
grave abuse of discretion amounting to lack or excess of jurisdiction in denying his petition
ISSUE
WON the petition for declaration of failure of election should be dismissed.
HELD/RATIO
YES, his ground that voting was not resumed after lunch break is better ventilated in an election
contest.
The power to declare a failure of elections should be exercised with utmost care and only
under circumstances which demonstrate beyond doubt that the disregard of the law has been
so fundamental or so persistent and continuous that it is impossible to distinguish what votes
are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the
great body of voters have been prevented by violence, intimidation and threats from
exercising their franchise. There is failure of elections only when the will of the electorate has
been muted and cannot be ascertained. If the will of the people is determinable, the same
must as far as possible be respected.
Citing Benito v COMELEC: For declaration of FAILURE of election, two conditions must occur:
[1] no voting has taken place in the precincts concerned on the date fixed by law OR even if
there were voting, the election nevertheless resulted in a failure to elect; and [2] the votes
not cast would affect the result of the election.
The cause of such failure may arise before or after the casting of votes or on the day of the
election.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011
While the alleged 100 votes of petitioners relatives and supporters, if cast during the
election, are sufficient to affect its result, however, he failed to prove that the voting did not
take place in precincts 3A, 4A and 5A. As found by the COMELEC, the Statement of Votes and
the Certificate of Canvass of Votes show that out of the 316 registered voters in the
questioned precincts, at least 220 actually voted. This simply shows that there was no failure
of election in the subject precincts.
Moreover, petitioners allegation that the voting was not resumed after lunch break,
preventing 100 of his relatives and followers to vote, is better ventilated in an election
contest.
Citing from the COMELEC decision in this case: We cannot also help but notice that the instant
petition seeks to declare a failure of elections and to annul solely the proclamation of
Batondiang, the elected punong barangay. The prayer for annulment of proclamation does
not extend to all the elected and proclaimed candidates in Barangay Maidan, Tugaya, Lanao
del Sur. COMELEC may not, on the ground of failure of elections, annul the proclamation of
one candidate only, and thereafter call a special election therefor, because failure of elections
necessarily affects all the elective positions in the place where there has been a failure of
elections. To hold otherwise will be discriminatory and violative of the equal protection
of the laws (Loong v COMELEC).
Citing Mitmug v COMELEC: Allegations of fraud and other election irregularities are better
ventilated in an election contest.
Citing Benito v COMELEC: There is failure of elections only when the will of the electorate has
been muted and cannot be ascertained. In the case at bar, this incident is not present.
BENITO V. COMELEC | De Leon, 2001
FACTS
Petitioner ZAIPAL D. BENITO and private respondent IBRAHIM PAGAYAWAN were two (2) of
eight (8) candidates vying for the position of municipal mayor in Calanogas, Lanao del Sur
during the May 11, 1998 elections.
Of the municipalitys election precincts, five (5) were clustered in Sultan Disimban Elementary
School. These were precincts 15A (Barangay Tagoranao), 6A/6A1 (Barangay Luguna), 17A
(Barangay Tambak), 2A/2A1 (Barangay Calalanoan), and 13A (Barangay Pindulonan).
The election in the first three (3), namely precincts 15A, 6A/6A1 and 17A are the subject of
BENITOs petition to declare failure of elections filed before the respondent COMELEC.
On the day of the election, voting started peacefully at the polling place. Shortly before noon,
however, the proceedings were interrupted when some thirty (30) armed men appeared at
the school premises and fired shots into the air. This sowed panic among the voters and
election officials, causing them to scatter in different directions.
By petitioners account, the ballot boxes and other election materials were taken to the
municipal hall by the military forces providing security. From then on, the voting allegedly
never resumed, even when voters who had not yet cast their ballots returned to their
respective polling places after the lawless elements had left.
In direct opposition, private respondent avers that voting in fact resumed when the armed
men left at about 1:00 oclock in the afternoon. There were no further untoward incidents
until voting closed at 3:00 oclock.
These turn of events, notwithstanding, the ballot boxes for the five (5) precincts in Disimban
Elementary School were taken together with those from the nineteen (19) other precincts of
Calanogas, to Marawi City for counting. The votes from precincts 15A, 6A/6A1 and 17A were
excluded upon objection by petitioners counsel
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
After counting, these results emerged:
CANDIDATE NO. OF VOTES
Ibrahim Pagayawan
Zaipal Benito
Amoran Macaborod
Jabbar Maruhom 927
879
524
(no data available)
Private respondent won over petitioner by forty-eight (48) votes.
On the other hand, the total votes cast for the three (3) excluded precincts numbered forty-
one (41) only
Considering that private respondent would still lead petitioner by seven (7) votes even if all
forty-one (41) votes from the three (3) excluded precincts were counted in the latters favor,
private respondent was proclaimed mayor of Calanogas.
petitioner filed an amended petition to declare failure of election and to call a special
elections in precincts 15A, 6A/6A1 and 17A (SPA)
He also filed a separate petition for the annulment of the proclamation of private respondent
(SPC)
COMELEC issued an Order consolidating SPC No. 98-159 with SPA No. 98-333.
COMELEC issued the assailed resolution, dismissing petitioners petition and ordering to
reconvene and count the remaining uncounted votes for the three precincts aforementioned
and affirming the proclamation made by the Municipal Board of Canvassers of the winning
candidate for the position of mayor
ISSUE
WON COMELEC properly dismissed Benitos petition for declaration of failure of elections and the
holding of special elections.
HELD/RATIO
YES . There is failure of elections only when the will of the electorate has been muted and cannot
be ascertained.
COMELEC en banc which has the exclusive power to postpone, to declare a failure of election,
or to call a special election.
Citing Hassan v COMELEC: For declaration of FAILURE of election, two conditions must occur:
[1] no voting has taken place in the precincts concerned on the date fixed by law OR even if
there were voting, the election nevertheless resulted in a failure to elect; and [2] the votes
not cast would affect the result of the election.
The cause of such failure may arise before or after the casting of votes or on the day of the
election.
Petitioner raises issues foreign to the remedy he seeks. His petition turns on what really
happened after the attack of the goons i.e. WON voting was actually resumed. Such is a q of
fact which is not a proper subject of petition for certiorari.
It is indeed odd that petitioner singles out only precincts 15A, 6A/6A1 and 17A as the subjects
of his petition when there were 2 other precincts in the same school. It was only in his reply
with memorandum did he signify his lack of objection to a declaration of failure of election in
precincts 2A/2A1 and 13A, as prayed for by candidate Amoran Macaborods answer with
counter-petition. Likewise, he never objected to the inclusion of the 2 other precincts during
the canvassing and counting of votes.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
2003-29275 October 6, 2011 173
Petitioner equates failure of elections to the low percentage of votes cast vis- -vis the
number of registered voters in the subject election precincts. However, citing Mitmug v
COMELEC there can be failure of election in a political unit only if the will of the majority has
been defiled and cannot be ascertained. But, if it can be determined, it must be accorded
respect. After all, there is no provision in our election laws which requires that a majority of
registered voters must cast their votes. All the law requires is that a winning candidate must
be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus,
even if less than 25% of the electorate in the questioned precincts cast their votes, the same
must still be respected.
Citing Sardea v COMELEC: The power to throw out or annul an election should be exercised
with the utmost care and only under circumstances which demonstrate beyond doubt either
that the disregard of the law had been so fundamental or so persistent an d continuous that it
is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any
certain result whatsoever, or that the great body of voters have been prevented by violence,
intimidation and threats from exercising their franchise.
There is failure of elections only when the will of the electorate has been muted and cannot
be ascertained. If the will of the people is determinable, the same must as far as possible be
respected.
Petitioner should not ask us to declare a failure of elections in the questioned precincts simply
because COMELEC declared a failure in other precincts in Lanao del Sur. He has claimed that
there was a total failure in 12 municipalities and only partial failure in 11.
SANCHEZ V. COMELEC | Melencio-Herrera, 1982
FACTS
In the local elections held on January 30, 1980, Virgilio Sanchez was the official candidate of
the Nacionalista Party (NP) for Municipal Mayor of San Fernando, Pampanga, while Armando
Biliwang was the Kilusang Bagong Lipunan's (KBL) official candidate for the same position. The
latter was proclaimed winner by the Municipal Board of Canvassers of said town.
Sanchez filed with the Commission on elections a Petition to declare null and void the local
elections in San Fernando due to alleged large scale terrorism. On the same day, the
COMELEC denied the Petition for lack of merit. Sanchez moved for reconsideration. COMELEC
recalled its Resolution COMELEC issued the challenged resolution ordering the annulment of
the election, the annulment and setting aside of the proclamation of respondent Armando P.
Biliwang and other municipal officials, and to certify to the President/Prime Minister and the
Batasang Pambansa the failure of election in San Fernando, Pampanga
Sanchez sought reconsideration of that portion of the COMELEC Resolution which certified
the failure of election in San Fernando to the President/Prime Minister and the Batasang
Pambansa, and prayed instead that the COMELEC call a special election in San Fernando.
Biliwang, for his part, also moved for reconsideration on the ground that the COMELEC has no
authority to annul the entire municipal election. He prayed that he be proclaimed on the basis
of the undisputed returns. Reconsideration was denied by the COMELEC in both instances.
Sanchez filed a Petition for certiorari; Biliwang instituted, also with this Court, a Petition for
Certiorari, Prohibition and Mandamus
ISSUES
(1) WON COMELEC has the power to annul an entire municipal election on the ground of post-
election terrorism. YES
(2) WON COMELEC has the authority to call for a special election.
PROF. GISELLA N. DIZON-REYES
 174 Ma. Jessa M. Alvarez
HELD/RATIO
(1) YES. What COMELEC actually rejected were the sham and illegal returns in San Fernando, and
that the kind of fraud and terrorism perpetrated thereat was sufficient cause for voiding the
election as a whole. Besides, COMELEC is empowered motu proprio to suspend and annul any
proclamation as, in fact, it did annul Biliwang's proclamation under S175 OEC: Suspension and
annulment of proclamation. The Commission shall be the sole judge of all pre-proclamation
controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu
proprio or upon written petition, and after due notice and hearing order the suspension of the
proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the
grounds mentioned in Sections 172, 173 and 174 hereof.
Biliwang's claim that he should be proclaimed on the basis of undisputed returns is devoid of
merit in the light of COMELEC's categorical findings that it was impossible to purge the illegal
from the valid returns. True that there is no specific provision vesting the COMELEC with
authority to annul an election. However, there is no doubt either relative to COMELEC's
extensive powers. Under the Constitution, the COMELEC is tasked with the function to
enforce and administer all laws relative to the conduct of elections. The 1978 Election Code
(PD No. 1296) accords it exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of insuring free, orderly and honest
elections (Sec. 185).
COMELEC found that the local election in San Fernando Pampanga, was vitiated by post-
election widespread and pervasive terrorism and resulted in the submission of gunpoint or
coerced returns. In other words, there were no election returns worthy of faith and credit
and from which could be gauged a fair and true expression of the popular will. Its action,
therefore, of rejecting all election returns and annulling the local elections thereat was but in
keeping with its constitutionally ordained power of administration and enforcement of
election laws and its main objective to insure free, orderly and honest elections. As it has
been rightly said an election return prepared at the point of a gun is no return at all; it is not
one notch above a falsified and spurious return. COMELEC has the power to reject returns
when in its opinion they were illegal and not authentic. In fact, it has the duty to disallow
obviously false or fabricated returns, as a falsified or spurious return amounts to no return at
all.
In line with the plenitude of its powers and its function to protect the integrity of elections,
the COMELEC must be deemed possessed of authority to annul elections where the will of the
voters has been defeated and the purity of elections sullied. It would be unreasonable to
state that the COMELEC has a legal duty to perform and at the same time deny it the
wherewithal to fulfill that task.
The fact that widespread terrorism occurred after the elections, and not in the casting of
votes, should make no difference.
(2) YES. As the law now stands, under S5 of BP Blg 52, abovequoted, when the election results in a
failure to elect, the COMELEC may call for the holding or continuation of the election as soon as
practicable. We This includes the calling of a special election in the event of a failure to elect in
order to make the COMELEC truly effective in the discharge of its functions. In fact, S8 of the 1978
Election Code, supra, specifically allows the COMELEC to call a special election for the purpose of
filling a vacancy or a newly created position, as the case may be. There should be no reason,
therefore, for not allowing it to call a special election when there is a failure to elect. We do not
share the view of public respondent and the SolGen that the power of the COMELEC to call for
special elections is circumscribed by the very same S5 of BP Blg. 52 itself, and that the San
Fernando situation is not within its ambit.
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COMELEC found the post-election acts of terrorism in San Fernando so massive and pervasive
in nature that it rejected all the returns. It made the "firm finding and conclusion ... that there
was total failure of election in San Fernando, Pampanga. When all the returns are void, it
cannot be gainsaid that there was a failure to elect. But to state that this is not the failure of
election contemplated by BP Blg. 52 because elections did take place is, to our minds, too
tenuous a distinction. In practical effect, no election has at all been held; there has been in
truth and in fact, a failure to elect.
It would be to circumscribe the power of the COMELEC to ensure free, orderly and honest
elections if we were to hold that the COMELEC authority to call for the holding of the election
is applicable only when the causes therefor occurred before the elections; in other words,
that the grounds for calling special elections do not include post-election terrorism. That
interpretation would not only hamper the effectiveness of the COMELEC in the discharge of
its functions but it would also, in case of failure. To elect due to post- election terrorism, delay
the opportunity to the voters to cast their votes at the earliest possible time. The electorate
should not be disenfranchised for long and the COMELEC should not be prevented from
taking the necessary steps to complete the elections. After all, the casting of ballots is not the
only act constitutive of elections. An election is not complete until proclamation has been
made.
HASSAN V. COMELEC | Kapunan, 1996
FACTS
Petitioner, Hadji Nor Basher L. Hassan, and private respondent, Mangondaya P. Hassan
Buatan were candidates for the Office of the Vice-Mayor while the other private respondents
were candidates for councilors in Madalum, Lanao del Sur.
However, due to threats of violence and terrorism in the area there was failure of elections in
six out of twenty-four precincts in Madalum.
The ballot boxes were burned and there were threats by unidentified persons in Precinct No.
7-A. In Precinct Nos. 9, 9-A, 10, 13, and 14, elections did not take place because the members
of the Board of Election Inspectors (BEI) failed to report to their respective polling places.
Monitoring Supervising Team (COMELEC Team) headed by Regional Election Director Virgilio
O. Garcillano recommended to the COMELEC the holding of special elections in said precincts.
The special elections were thereby set on May 27, 1995. On said date, however, the members
of the BEI again failed to report for duty in their respective polling places.
COMELEC Team re-scheduled the elections in these precincts for May 29, 1995 at Liangan
Elementary (Arabic) School, which is 15 kilometers away from the designated polling places.
On May 29, 1995, the members of the Board did not again report for duty. Hence, the
COMELEC Team was constrained to appoint police/military personnel to act as substitute
members so as to push through with the elections.
petitioner Hadji Nor Basher L. Hassan filed a petition with the COMELEC docketed as SPA 95-
283 assailing the validity of the May 29 re-scheduled special elections
private respondent Mangondaya P. Hassan Buatan also filed a petition with the COMELEC
(docketed as SPA 95-286) assailing the inaction of the Municipal Board of Canvassers of
Madalum on his petition to be proclaimed the winning vice-mayoralty candidate.
COMELEC en banc issued a resolution denying the petition for a declaration of failure of
elections and to call special elections in Precinct Nos. 7-A (Abaga), 9, 9-A, 10, 13 and 14, in
Madalum, Lanao del Sur. It disposed of the consolidated petitions (SPA 95-283 and SPA 95-
286) by directing the Regional Election Director of Region XII in consultation with the
Commissioner-in-Charge of Region XII to reconstitute the Municipal Board of Canvassers of
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Madalum, Lanao del Sur, of which shall convene forthwith and complete the canvass by
proclaiming the winning vice-mayoralty candidate, Mangondaya P. Hassan Buatan, and eight
winning candidates for member, Sangguniang Bayan of that municipality.
Thus, petitioner went up to this Court assailing the aforesaid resolution
ISSUE
WON COMELEC erred in not giving due course to Hassans petition for declaration of failure of
elections.
HELD/RATIO
YES. There is a peculiar widespread terrorism in the area and the electorate was not given sufficient
notice as to special elections.
Two pre-conditions must exist before a failure of election may be declared, thus: (1) no voting
has been held in any precinct or precincts due to force majeure, violence or terrorism; and (2)
the votes not cast therein are sufficient to affect the results of the election. The cause of such
failure may arise before or after the casting of votes or on the day of the election.
GENERAL RULE: Terrorism may not as a rule be invoked to declare a failure of elections and to
disenfranchise the greater number of the electorate through the misdeeds of only a relative
few. Otherwise elections will never be carried out with the resultant disenfranchisement of
the innocent voters, for the losers will always cry fraud and terrorism. It has been ruled that
annulment of election results and consequent disenfranchisement of voters is a very stringent
one. The power to annul an election should be exercised with the greatest care and
circumspection and only in extreme cases and under circumstances which demonstrate
beyond doubt and to the fullest degree of fundamental and wanton disregard of the law.
EXCEPTION: COMELEC cannot turn a blind eye to the fact that terrorism was so prevalent in
the area, sufficient enough to declare that no voting actually occurred on May 29, 1995 in the
areas concerned.
Factual basis: Elections had to be set for the third time because no members of the BEI
reported for duty due to impending threats of violence in the area. This then prompted
COMELEC to deploy military men to act as substitute members just so elections could be held;
and to thwart these threats of violence, the COMELEC Team, moreover, decided to transfer
the polling places to Liangan Elementary School which was 15 kilometers away from the
polling place. Nonetheless, voting on May 29 had to be suspended before the hour fixed by
law for the closing of the voting because of threats of violence, grenade launching and
gunfires.
The notice given on the afternoon of May 28 resetting the special elections to May 29 and
transferring the venue of the elections 15 kilometers away from the farthest barangay/school
was too short resulting to the disenfranchisement of voters. Out of the 1,546 registered
voters in the five (5) precincts only 328 actually voted.
There was insufficiency of notice given as to the time and transfer of the polling places. The
low turnout of voters is more than sufficient proof that the elections conducted on that day
was vitiated. A less than a days notice of time and transfer of polling places 15 kilometers
away from the original polls certainly deprived the electors the opportunity to participate in
the elections.
The re-scheduling of the special elections from May 27 to May 29, was done in uncommon
haste and unreasonably too close for all voters to be notified of the changes, not only as to
the date but as to the designated polling place.
It was quite sweeping and illogical for the COMELEC to state that the votes uncast would not
have in any way affected the results of the elections. While the difference between the two
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candidates is only 219 out of the votes actually cast, the COMELEC totally ignored the fact
that there were more than a thousand registered voters who failed to vote.
If only to ascertain the will of the people and to prevent that will from being muted, it is
necessary that a special election be held in view of the failure of elections in Madalum, Lanao
del Sur.
SARDEA V. COMELEC | Grino-Aquino, 1993
FACTS
the respondent Municipal Board of Canvassers of Mauban, Quezon, convened at the
Municipal Hall and canvassed the first batch of election returns for the just concluded May 11,
1992 elections in that municipality.
At about 5:00 o'clock in the afternoon of May 13, 1992, while the canvassing of the election
returns was going on, some sympathizers of petitioner Edwin Sardea, a defeated mayoralty
candidate of LAKAS-NUCD, "stormed the municipal building" and "destroyed . . . all election
materials and paraphernalia including, among others, the copies of election returns furnished
to respondent Board
the respondent Municipal Board of Canvassers convened and assessed the extent of the
damage wrought by the demonstrators. It discovered that the election returns in the
possession of the MTC Judge of Mauban were intact, so it ordered the retrieval of said
election returns for use in the canvass. However, due to the absence of certain forms needed
for the canvass, the same was suspended and moved to May 17, 1992. Still, on said date, the
canvassing was not resumed because the Board had to determine first the number of returns
to be used in the canvass.
The Municipal Board of Canvassers reconvened on May 18, 1992, informed the parties that it
would continue the canvassing of the election returns based on the copies from the MTC of
Mauban.
Atty. Romeo Devera, counsel of LAKAS-NUCD, objected. Later, he filed a petition in behalf of
petitioner Edwin Sardea to stop the proceedings of the Board of Canvassers on the ground
that it had no authority from the COMELEC to use the copies of the election returns obtained
from the MTC of Mauban. The Municipal Board of Canvassers overruled Attorney Devera's
objection and denied Sardea's petition to stop the proceedings
COMELEC held a special meeting and resolved "to authorize the Municipal Board of
Canvassers of Mauban, Quezon to reconvene and use the copies of the election returns of the
Municipal Trial Court Judge"
the Municipal Board of Canvassers reconvened and dismissed Sardea's appeal. The letter of
Atty. Adolfo Ilagan dated May 15, 1992 and the minutes of the special meeting of the
COMELEC on May 22, 1992, were deemed sufficient authority for it to use the MTC Judge's
copies of the election returns.
Sardea filed a petition in the Office of the Election Registrar in Mauban, Quezon, assailing the
composition of the Board of Canvassers and its proceedings. He also filed an Amended Notice
of Appeal.
Municipal Board of Canvassers proclaimed the private respondents as the duly elected Mayor,
Vice-Mayor and Members of the Sangguniang Bayan of Mauban, Quezon.
petitioners filed Special Action Case No. SPA 92-331, seeking to declare a failure of election in
Mauban, Quezon
COMELEC promulgated the challenged resolution denying the petition.
Sardea filed this petition for certiorari alleging that the COMELEC gravely abused its
discretion.
PROF. GISELLA N. DIZON-REYES
 176 Ma. Jessa M. Alvarez
ISSUE
WON Sardeas petitions are proper.
HELD/RATIO
NO, the use by the MBC of Mauban, Quezon of the election returns in the possession of the MTC
Judge, was not contrary to law, and was in fact the best possible recourse under the circumstances
in order to give life to the will of the electorate. COMELEC did not abuse its discretion when it
issued the assailed resolution denying the petition to declare a failure of election in Mauban,
Quezon.
Sardea's two (2) complaints/petitions involved pre-proclamation controversies which is
defined in S241 OEC as referring to any question pertaining to OR affecting the proceedings of
the board of canvassers which may be raised by any candidate or by any registered political
party or coalition of political parties before the board or directly with the Commission, or any
matter raised under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns.
First complaint: questioned the use of the Municipal Trial Court Judge's copies of the election
returns as basis for the canvass.
Second complaint: assailed the composition and proceedings of the Municipal Board of
Canvassers
Pre-proclamation controversies may no longer be entertained by the COMELEC after the
winning candidates have been proclaimed and assumed office. The proper remedy of the
aggrieved party is an election contest in the Regional Trial Court as provided in Sec. 250 of
B.P. 881 and Sec. 2(2), Art. IX-C of the Constitution.
Since the authenticity and completeness of the returns were never questioned and the
winning candidates had been proclaimed on May 27, 1992, Sardea's pre-proclamation
complaint in the COMELEC ceased to be viable.
Anent failure of elections: The destruction and loss of the copies of the election returns
intended for the MBC on account of violence is not one of the causes that would warrant the
declaration of a failure of election because voting actually took place as scheduled and other
valid election returns still existed. Moreover, the incident did not affect the result of the
election.
The power to throw out or annul an election should be exercised with the utmost care and
only under circumstances which demonstrate beyond doubt either that the disregard of the
law had been so fundamental or so persistent and continuous that it is impossible to
distinguish and what votes are lawful and what are unlawful, or to arrive at any certain result
whatsoever, or that the great body of the voters have been prevented by violence,
intimidation and threats from exercising their franchise.
The election is to be set aside when it is impossible from any evidence within reach, to
ascertain the true result - when neither from the returns nor from other proof, nor from all
together can the truth be determined. There is a failure of elections only when the will of the
electorate has been muted and cannot be ascertained. If the will of the people is
determinable, the same must as far as possible be respected.
There is no provision in the Omnibus Election Code stating that the canvass should be based
only on the original copy of the election returns. Besides, the duplicate copy of election
returns that were used in the canvass of votes were not only authentic copies or certified
copies but duplicate originals. Moreover, petitioner failed to show or even make an allegation
that the use of the duplicate originals of the returns had in some definite manner caused him
prejudice, like uncounted votes in his favor or alteration of an election result otherwise in his
favor.
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MITMUG V. COMELEC | Bellosillo, 1994
FACTS
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI
DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao
during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.
voter turnout was rather low, particularly in forty-nine (49) precincts where the average voter
turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast their votes.
Five (5) of these precincts did not conduct actual voting at all.
COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts
which failed to function during election day. On 30 July 1992 another special election was
held for a sixth precinct.
petitioner filed a petition seeking the annulment of the special election conducted on 30 May
1992 alleging various irregularities such as the alteration, tampering and substitution of
ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the
subject precincts were already counted.
Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates
a new board of Election Inspectors was formed to conduct the special election set for 25 July
1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new
Board convened and began the canvassing of votes. Finally, on 31 July 1992, private
respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
petitioner instituted the instant proceedings seeking the declaration of failure of election in
forty-nine (49) precincts where less than a quarter of the electorate were able to cast their
votes. He also prayed for the issuance of a temporary restraining order to enjoin private
respondent from assuming office.
petitioner lodged an election protest with the Regional trial Court of Lanao del Sur disputing
the result not only of some but all the precincts of Lumba-Bayabao, del Sur.
Respondents, on the other hand, assert that with the filing of an election protest, petitioner is
already deemed to have abandoned the instant petition.
ISSUE
WON COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying
motu proprio and without due notice and hearing the petitions seeking to declare a failure of
election.
HELD/RATIO
NO, allegations of fraud and other election irregularities are better ventilated in an election
contest.
A petition to annul an election is NOT a pre-proclamation controversy. Consequently, the
proclamation of a winning candidate together with his subsequent assumption of office is
NOT an impediment to the prosecution of the case to its logical conclusion.
The clear intent of the law is that a petition for declaration of failure of election must be acted
upon with dispatch only after hearing thereon shall have been conducted. HOWEVER, that a
verified petition is filed does not automatically mean that a hearing on the case will be held
before COMELEC will act on it. The verified petition must still show on its face that the
conditions to declare a failure to elect are present. In the absence thereof, the petition must
be denied outright. No two conditions, no hearing on irregularities.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
In the case before us, it is indubitable that the votes not cast will definitely affect the outcome
of the election. BUT, the first requisite is missing, i.e., that no actual voting took place, or even
if there is, the results thereon will be tantamount to a failure to elect. Since actual voting and
election by the registered voters in the questioned precincts have taken place, the results
thereof cannot be disregarded and excluded. COMELEC therefore did not commit any abuse
of discretion, much less grave, in denying the petitions outright. There was no basis for the
petitions since the facts alleged therein did not constitute sufficient grounds to warrant the
relief sought. For, the language of the law expressly requires the concurrence of these
conditions to justify the calling of a special election.
The question of whether there have been terrorism and other irregularities is better
ventilated in an election contest. These irregularities may not as a rule be invoked to declare a
failure of election and to disenfranchise the electorate through the misdeeds of a relative
few. Otherwise, elections will never be carried out with the resultant disenfranchisement of
innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect.
After all, there is no provision in our election laws which requires that a majority of registered
voters must cast their votes. All the law requires is that a winning candidate must be elected
by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less
than 25% of the electorate in the questioned precincts cast their votes, the same must still be
respected. There is prima facie showing that private respondent was elected through a
plurality of valid votes of a valid constituency
TAN V. COMELEC | Callejo, 2003
FACTS
Abdusakur Tan and Abdulwahid Sahidulla were candidates for Governor and Vice-Governor,
respectively, while Munib Estino and Abraham Burahan were candidates for Congressman of
the Second and First District of Sulu, respectively. The other candidates for Governor and
Vice-Governor were Yusop Jikiri and Abdel Anni. The candidates for the position of members
of the SangguniangPanlalawigan of the First District of Sulu were Den Rasher Salim, Talib
Hayudini, Rizal Tingkahan and Barlie Nahudan, while those for the Second District were
Abraham Daud, Lukman Omar, Onnih Ahmad and Basaron Burahan.
On May 17, 2001, Abdusakur Tan, Abdulwahid Sahidulla and Abraham Burahan (Abdusakur
Tan, et al. for brevity) filed with the COMELEC (public respondent) a petition to declare
failure of elections in all the precincts in the Municipality of Luuk, Province of Sulu, which
was docketed as SPA No. 01-257.
the petitioners filed a petition to declare failure of elections and/or to annul the elections or
the election results in the Municipalities of Parang and Indanan, Province of Sulu, which was
docketed as SPA No. 01-265.
No respondents were impleaded in both petitions. The public respondent took cognizance of
and assumed jurisdiction over the petitions.
petitioners therein filed an urgent reiterating motion to suspend proclamation. Acting on
the said motion, the public respondent issued an order suspending the proclamation of the
winning candidates
However, the Provincial Board of Canvassers (PBC) was not served with a copy of the order of
the public respondent. On May 23, 2001,Yusop Jikiri, Abdel Anni,Abraham Daud, Lukman
Omar, Onnih Ahmad, Basaron Burahan,DenRasher Salim,TalibHayudini, Rizal Tingkahanand
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Barlie Nahudan were proclaimed as the winning candidates for Governor, Vice-Governor and
Board Members.
the petitioners therein filed their Amended Petitions impleading for the first time the winning
candidates as party respondents.
COMELEC En Banc issued an order annulling the May 23, 2001 proclamation of the
respondents on its finding that the proclamation by the PBC of the winning candidates was a
defiance of its Order of May 19, 2001. The public respondent forthwith set the amended
petitions for hearing.
respondents filed a motion for the recall of the June 20, 2001 Order of the COMELEC on the
ground that the petitions before it were merely petitions to declare a failure of election and
do not involve a pre-proclamation controversy.
COMELEC issued an order recalling and setting aside its June 20, 2001 Order, and affirming
theMay 23, 2001 proclamation of the respondents.
petitioners filed on July 11, 2001 with this Court a petition for certiorari, prohibition and
mandamus
COMELEC issued an Order dated October 3, 2001 directing the technical examination of the
voters registration records in the Municipalities of Parang, Indanan and Luuk
the respondents filed with the COMELEC an omnibus motion to resolve the issue of
jurisdiction with a prayer to recall and/or suspend implementation of the Order dated
October 3, 2001.
COMELEC issued an order declaring that it had jurisdiction over the amended petitions
conformably with Section 4 of Republic Act No. 7166; and denying the omnibus motion of the
respondents
The COMELEC ruled that based on the allegations of the amended petitions, there was no
valid and legitimate elections held or conducted in the three municipalities. It, likewise, ruled
that it had the authority to order a technical examination of the VRRs in a petition to declare
a failure of election citing the ruling of this Court in Loong v. Commission on Elections.
ISSUE
(1) WON COMELEC has the power to issue an order suspending proclamation as a preliminary
relief in a petition for declaration of failure of election and/or annulment of election results.
(2) WON Tan has successfully met all the conditions for declaration of failure of election.
HELD/RATIO
(1) YES. COMELEC can suspend the proclamation pending the resolution of the petition to declare
a failure of election, the same order, however, is merely provisional in nature and can be
lifted when the evidence so warrants. In Nolasco v. COMELEC, it is said to be akin to a
temporary restraining order which a court can issue ex-parte under exigent circumstances.
(2) NO. They merely enumerated the various acts of alleged terrorism and fraud. There was no
allegation that due to said acts of terrorism and fraud no election was actually held or that
there was suspension of election or even if there was election held, nobody emerged as a
winner.
Jikiri et al say: Tan et al were proscribed from filing their amended petition for a declaration of
failure of elections and/or for the annulment of elections under S6, RA 7166 for the reason
that the petitioners had already been proclaimed the winning candidates. Petition for
declaration of failure of elections or for the annulment of an election can no longer be filed
and prosecuted after the winning candidates had already been proclaimed by the PBC. The
proper recourse was to file election protest cases against the petitioners as the winning
candidates. The proceedings in an election protest are not summary in nature and should be
PROF. GISELLA N. DIZON-REYES
 178 Ma. Jessa M. Alvarez 2003-29275
ventilated in a full-blown hearing. The amended petitions of the respondents are election
protest cases over which the COMELEC assumes jurisdiction in the exercise of its quasi-judicial
powers and should be referred for hearing and resolution to a Division.
Tan et al say: COMELEC took cognizance of the amended petitions under S4, RA 7166 in its
administrative capacity and not as a quasi- judicial body. In a petition for a declaration of
failure of election, COMELEC does not exercise quasi-judicial functions because it does not
adjudicate any conflicting or adverse claims of the contending parties as there are no rights to
speak of under which adverse claims to such rights are made citing Loong v COMELEC.
SolGen says: A petition to declare a failure of election may be maintained even when a winner
had already been proclaimed, citing Soliva v. COMELEC. COMELEC is mandated to conduct an
investigation as to the veracity of the allegations of the respondents of fraud, terrorism,
harassment and intimidation to ensure the conduct of free and impartial elections.
SC agrees with Jikiri.
The amended petitions filed by Tan herein are election protest cases over which the
COMELEC has original exclusive jurisdiction under Section 2(2), Article IX of the Constitution.
COMELEC assumed jurisdiction over the amended petitions in the exercise of its quasi- judicial
powers. S4 RA 7166 provides that the COMELEC sitting en banc by a majority vote of its
members may decide, among others, the declaration of failure of election and the calling of
special elections as provided in S6 of the OEC.
The nature of an action and the jurisdiction of the tribunal are determined by law and the
allegations in the petitions regardless of whether or not the petitioners are entitled to the
S6 of the OEC lays down 3 instances where a failure of election may be declared, namely, (1)
the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous causes; (2) the election in any polling
place has been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud or other analogous causes; or (3) after
the voting and during the preparation and transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other analogous cases.
In all instances there must have been a failure to elect. This is obvious in the first two
scenarios, where the election was not held and where the election was suspended. As to the
third scenario, the preparation and the transmission of the election returns, which give rise to
the consequence of failure to elect, must as aforesaid be literally interpreted to mean that
nobody emerged as a winner.
Before the COMELEC can act on a verified petition seeking to declare a failure of elections,
two conditions must concur, namely, (1) no voting took place in the precinct or precincts on
the date fixed by law, or even if there was voting, the election resulted in a failure to elect;
and (2) the votes not cast would have affected the result of thee lection. Note that the CAUSE
of such failure of election could only be any of the following: force majeure, violence,
terrorism, fraud or other analogous causes.
In these cases, elections were held in the questioned municipalities. In fact, the very reason
why the respondents filed their amended petitions before the COMELEC was to implead the
petitioners as the respondents therein who had been proclaimed as the winning candidates;
hence, were indispensable parties to the petitions.
In their two petitions, petitioners made no specific allegation as to the presence of any of the
three above-mentioned circumstances. They merely enumerated the various acts of alleged
terrorism and fraud. There was no allegation that due to said acts of terrorism and fraud no
election was actually held or that there was suspension of election or even if there was
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October 6, 2011
election held, nobody emerged as a winner. On the contrary, it is apparent that there was an
actual election. What petitioners are saying is that it was not a valid and legitimate elections.
The attendance of the alleged fraud and irregularities in the elections as catalogued by Tan et
al, however, constitute merely the causes or events which may give rise to the grounds to
declare failure of elections. While fraud is a ground to declare a failure of election, the
commission of fraud must be such that it prevented or suspended the holding of an election,
including the preparation and transmission of the election returns
MUTILAN V. COMELEC | Carpio, 2007
FACTS
Dr. Mahid M. Mutilan (petitioner) and Zaldy Uy Ampatuan (private respondent) were
candidates for Governor during the election of regional officials held on 8 August 2005 in the
Autonomous Region of Muslim Mindanao (ARMM). On 11 August 2005, private respondent
was proclaimed as the duly elected Governor of the ARMM.
petitioner filed an Electoral Protest and/or Petition to Annul the Elections. The case was
docketed as EPC No. 2005-3. Petitioner contested the results of the elections in
Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual election was
conducted in the precincts in these four provinces. Petitioner alleged that the voters did not
actually vote and that the ballots were filled up by non-registered voters in the four
provinces. Petitioner also contested the results in the municipalities of Butig, Sultan
Gumander, Calanogas, Tagoloan, Kapai, Masiu, and Maguing in Lanao del Sur where massive
substitute voting allegedly took place. COMELEC Second Division dismissed the petition.
COMELEC En Banc denied the motion for reconsideration for petitioners failure to verify it in
accordance with Section 3, Rule 19 of the COMELEC Rules of Procedure. The COMELEC En
Banc ruled that the 21 November 2005 Order of the COMELEC Second Division had become
final and executory on 8 December 2005.
Hence, the petition before this Court.
ISSUE
WON 2nd Div is may elevate the petition for declaration of failure of election which is properly
under the jurisdiction of En Banc.
HELD/RATIO
YES, nevertheless, he has still failed to make a proper case of petition for failure of election. Three
instances of failure of election not present. The allegations in petition to annul the elections fail to
make out a prima facie case to warrant the declaration of failure.
Under Section 3, Article IX-C of the 1987 Constitution, all election cases, including pre-
proclamation controversies, must be heard and decided by a division of the COMELEC. Under
S4 RA 7166, jurisdiction over postponements, failure of elections and special elections vests in
the COMELEC En Banc. The jurisdiction of the COMELEC En Banc over a petition to declare a
failure of elections has been affirmed by this Court which ruled that a petition to declare a
failure of elections is neither a pre-proclamation controversy nor an election case. A prayer to
annul election results and a prayer to declare failure of elections based on allegations of
fraud, terrorism, violence or analogous causes are actually of the same nature and are
denominated similarly in the Omnibus Election Code. Thus, the COMELEC Second Division has
no jurisdiction over the petition to annul the elections.
Petitioner filed an Electoral Protest and/or Petition to Annul the Elections which clearly shows
that he tried to avail of two different remedies, each one falling under separate jurisdictions.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
There are three instances where a failure of elections may be declared and in all three, there
is a resulting failure to elect. In the first instance, the election has not been held. In the
second instance, the election has been suspended. In the third instance, the preparation and
the transmission of the election returns give rise to the consequent failure to elect; the third
instance is interpreted to mean that nobody emerged as a winner.
None of the three instances is present in this case. In this case, the elections took place. In
fact, private respondent was proclaimed the winner. Petitioner contests the results of the
elections on the grounds of massive disenfranchisement, substitute voting, and farcical and
statistically improbable results. Petitioner alleges that no actual election was conducted
because the voters did not actually vote and the ballots were filled up by non-registered
voters.
Citing Pasandalan v COMELEC: To warrant a declaration of failure of election on the ground of
fraud, the fraud must prevent or suspend the holding of an election, or mar fatally the
preparation, transmission, custody and canvass of the election returns. The conditions for the
declaration of failure of election are stringent. Otherwise, elections will never end for losers
will always cry fraud and terrorism.
The allegations of massive substitution of voters, multiple voting, and other electoral
anomalies should be resolved in a proper election protest in the absence of any of three
instances justifying a declaration of failure of election. In an election protest, the election is
not set aside, and there is only a revision or recount of the ballots cast to determine the real
winner.
The nullification of elections or declaration of failure of elections is an extraordinary remedy.
The party who seeks the nullification of an election has the burden of proving entitlement to
this remedy. It is not enough that a verified petition is filed. The allegations in the petition
must make out a prima facie case for declaration of failure of election, and convincing
evidence must substantiate the allegations.
K. Special Elections
TOLENTINO V. COMELEC | Carpio, 2004
FACTS
Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-
Arroyo nominated then Senator Teofisto T. Guingona, Jr. as Vice-President. Congress
confirmed the nomination of Senator Guingona who took his oath as Vice-President on 9
February 2001.
Following Senator Guingonas confirmation, the Senate on 8 February 2001 passed Resolution
No. 84 certifying to the existence of a vacancy in the Senate. Resolution No. 84 called on
COMELEC to fill the vacancy through a special election to be held simultaneously with the
regular elections on 14 May 2001.
Resolution No. 84 further provided that the Senatorial candidate garnering the 13th highest
number of votes shall serve only for the unexpired term of former Senator Teofisto T.
Guingona, Jr., which ends on 30 June 2004.
After COMELEC had canvassed the election results from all the provinces but one (Lanao del
Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming 13 candidates as the
elected Senators. Resolution No. 01-005 also provided that the first twelve (12) Senators
shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the
unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed
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Vice-President. Respondents Ralph Recto (Recto) and Gregorio Honasan (Honasan)
ranked 12th and 13th
Arturo Tolentino and Arturo Mojica (petitioners), as voters and taxpayers, filed the instant
petition for prohibition, impleading only COMELEC as respondent. Petitioners sought to
enjoin COMELEC from proclaiming with finality the candidate for Senator receiving the 13th
highest number of votes as the winner in the special election for a single three-year term
seat.
Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because:
(1) it failed to notify the electorate of the position to be filled in the special election as
required under Section 2 of Republic Act No. 6645(2) it failed to require senatorial candidates
to indicate in their certificates of candidacy whether they seek election under the special or
regular elections as allegedly required under Section 73 of Batas Pambansa Blg. 881; and,
consequently, (3) it failed to specify in the Voters Information Sheet the candidates seeking
election under the special or regular senatorial elections as purportedly required under
Section 4, paragraph 4 of Republic Act No. 6646.
Petitioners claim that if held simultaneously, a special and a regular election must be
distinguished in the documentation as well as in the canvassing of their results.
After COMELEC had canvassed the results from all the provinces, it issued Resolution No. 01-
006 declaring official and final the ranking of the 13 Senators proclaimed in Resolution No.
01-005.
Amended petition impleading Recto and Honasan as additional respondents
ISSUE
WON a special election to fill a vacant three-year term Senate seat was invalidated by lack of a
call for such election and for lack of notice as to the office to be filled and the manner by which
the winner in the special election is to be determined.
HELD/RATIO
NO. Under Section 9, Article VI of the Constitution, a special election may be called to fill any
vacancy in the Senate and the House of Representatives in the manner prescribed by law. That
law is RA 6645, pertinent portions of which provide:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of
Representatives at least one (1) year before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate or the House of
Representatives, as the case may be, certifying to the existence of such vacancy and calling for a
special election, shall hold a special election to fill such vacancy. If Congress is in recess, an official
communication on the existence of the vacancy and call for a special election by the President of
the Senate or by the Speaker of the House of Representatives, as the case may be, shall be
sufficient for such purpose. The Senator or Member of the House of Representatives thus elected
shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be
earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to be voted for: Provided,
however, That if within the said period a general election is scheduled to be held, the special
election shall be held simultaneously with such general election.
S4, RA 7166, amending S2 RA 6645. Postponement, Failure of Election and Special Elections. x x x
In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1)
year before the expiration of the term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of
PROF. GISELLA N. DIZON-REYES
 180 Ma. Jessa M. Alvarez
the vacancy. However, in case of such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election.
Thus, in case a vacancy arises in Congress at least one year before the expiration of the term,
Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by
fixing the date of the special election, which shall not be earlier than sixty (60) days nor later
than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate,
the special election shall be held simultaneously with the next succeeding regular election;
and (2) to give notice to the voters of, among other things, the office or offices to be voted
for.
Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May
2001 regular elections, comply with the requirements in Section 2 of R.A. No. 6645? No, lack
of formal notice of the special election either in resolutions or press releases.
HOWEVER, COMELECs failure, assuming it did fail, to comply with the requirements in S2 RA
6645, as amended, invalidated the conduct of the special senatorial election on 14 May 2001
and accordingly rendered Honasans proclamation as the winner in that special election void?
The calling of an election, i.e. the giving notice of the time and place of its occurrence,
whether made by the legislature directly or by the body with the duty to give such call, is
indispensable to the elections validity. GENERAL ELECTION, where the law fixes the date of
the election, the election is valid without any call by the body charged to administer the
election. SPECIAL ELECTION to fill a vacancy, the rule is that a statute that expressly provides
that an election to fill a vacancy shall be held at the next general elections fixes the date at
which the special election is to be held and operates as the call for that election.
Consequently, an election held at the time thus prescribed is not invalidated by the fact that
the body charged by law with the duty of calling the election failed to do so. This is because
the right and duty to hold the election emanate from the statute and not from any call for the
election by some authority and the law thus charges voters with knowledge of the time and
place of the election. BUT, the law does not fix the time and place for holding a special
election but empowers some authority to fix the time and place after the happening of a
condition precedent, the statutory provision on the giving of notice is considered
MANDATORY, and failure to do so will render the election a nullity.
Here, S2 of RA 6645 itself provides that in case of vacancy in the Senate, the special election
to fill such vacancy shall be held simultaneously with the next succeeding regular election.
Accordingly, the special election to fill the vacancy in the Senate arising from Senator
Guingonas appointment as VP in February 2001 could not be held at any other time but must
be held simultaneously with the next succeeding regular elections on 14 May 2001. The law
charges the voters with knowledge of this statutory notice and COMELECs failure to give the
additional notice did not negate the calling of such special election, much less invalidate it.
Different conclusion if it involves member of HR: The holding of the special election is subject
to a condition precedent, that is, the vacancy should take place at least one year before the
expiration of the term. The time of the election is left to the discretion of COMELEC subject
only to the limitation that it holds the special election within the range of time provided in
Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement in Section 2
of R.A. No. 6645, as amended, for COMELEC to call x x x a special election x x x not earlier
than 60 days nor longer than 90 days after the occurrence of the vacancy and give notice of
the office to be filled. The COMELECs failure to so call and give notice will nullify any attempt
to hold a special election to fill the vacancy.
Were the voters misled? The test in determining the validity of a special election in relation to
the failure to give notice of the special election is whether the want of notice has resulted in
misleading a sufficient number of voters as would change the result of the special election. If
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2003-29275 October 6, 2011
the lack of official notice misled a substantial number of voters who wrongly believed that
there was no special election to fill a vacancy, a choice by a small percentage of voters would
be void.
No proof that COMELECs failure to give this required notice misled a sufficient number of
voters as would change the result of the special senatorial election or led them to believe that
there was no such special election. Failure to give notice no election. The absence of formal
notice from COMELEC does not preclude the possibility that the voters had actual notice of
the special election, the office to be voted in that election, and the manner by which
COMELEC would determine the winner. Such actual notice could come from many sources,
such as media reports of the enactment of R.A. No. 6645 and election propaganda during the
campaign.
Anent failure to document and canvass separately the candidates. Such requirements exist in
our election laws. What is mandatory under S2 of RA 6645 is that COMELEC fix the
date of the election, if necessary, and state, among others, the office or offices to be voted
for. The method adopted by COMELEC in conducting the special election on 14 May 2001
merely implemented the procedure specified by the Senate in Reso No. 84. The original draft
as introduced by Senator Tatad made no mention of the manner by which the seat vacated by
former Senator Guingona would be filled. Evidently, COMELEC, in the exercise of its discretion
to use means and methods to conduct the special election within the confines of R.A. No.
6645, merely chose to adopt the Senates proposal, as embodied in Resolution No. 84.
As a final note, the SC reminded COMELEC that even if failure to call and give notice did not
invalidate this special election, they should not take chances in the future. IT shall still
strictly comply with the requirements because the calling of a special election, if necessary,
and the giving of notice to the electorate of necessary information regarding a special
election, are central to an informed exercise of the right of suffrage.
L. Counting of Votes
LOONG V. COMELEC | Puno, 1999
FACTS
In the May 11, 1998 elections held in the Autonomous Region in Muslim Mindanao (ARMM),
the Automated Election System was implemented pursuant to R.A. No. 8436.
However when the automated machines failed to read correctly the ballots in the
municipality of Pata, a manual count was ordered by the COMELEC.
The problem in Pata was traced by the technical experts of COMELEC and the suppliers of the
automated machines to an error in the printing of the ballots caused by the misalignment of
the ovals opposite the names of candidates and while the local ballots in the other nearby five
municipalities contained the wrong sequence code.
The ballot boxes were then transported to Manila. After a manual count, respondent Tan was
proclaimed governor-elect.
Petitioner Loong was third in the count and Intervenor Jakiri placed second. The latter two
questioned the resolutions of the COMELEC ordering a manual count of the votes cast in Sulu
claiming denial of due process and illegality of manual count in light of RA No. 8436.
ISSUES
(1) WON a petition for certiorari and prohibition under Rule 65 of the RoC is the appropriate
remedy to invalidate the disputed COMELEC resolutions? YES,
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Ma. Jessa M. Alvarez 2003-29275
(2) WON COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in
ordering a manual count? NO.
(2.a.) Is there a legal basis for the manual count? YES
(2.b.) Are its factual bases reasonable? YES. Court considered the violent history of tension in
the area.
(2.c.) Were the petitioner and the intervenor denied due process by the COMELEC when it
ordered a manual count? NO. They were given every opportunity to oppose the manual count
of the local ballots in Sulu. They were orally heard. They later submitted written position
papers. Their representatives escorted the transfer of the ballots and the automated
machines from Sulu to Manila. Their watchers observed the manual count from beginning to
end.
(3) Assuming the manual count is illegal and that its result is unreliable, WON it is proper to call for
a special election for the position of governor of Sulu? NO
HELD/RATIO
The manual count is reliable. An automated count of the local votes in Sulu would have
resulted in a wrong count, a travesty of the sovereignty of the electorate. Its aftermath could
have been a bloodbath. COMELEC avoided this imminent probability by ordering a manual
count of the votes. It would be the height of irony if the Court condemns COMELEC for
aborting violence in the Sulu elections.
Manual count of the ballots at the PICC is reliable. The ballot boxes were consistently under
the watchful eyes of the parties' representatives. They were placed in an open space at the
PICC. The watchers stationed themselves some five (5) meters away from the ballot boxes.
They watched 24 hours a day and slept at the PICC. The parties' watchers again accompanied
the transfer of the ballot boxes from PICC to the public schools of Pasay City where the ballots
were counted. After the counting they once more escorted the return of the ballot boxes to
PICC. Therefore, no opportunity for tampering as the petitioner fears.
the ballots used in the case at bar were specially made to suit an automated election. The
ballots were uncomplicated. They had fairly large ovals opposite the names of candidates. A
voter needed only to check the oval opposite the name of his candidate. When the COMELEC
ordered a manual count of the votes, it issued special rules as the counting involved a Panganibans dissent:
different kind of ballot, albeit, more simple ballots. The Omnibus Election Code rules on
appreciation of ballots cannot apply for they only apply to elections where the names of
candidates are handwritten in the ballots.
The correctness of the manual count cannot therefore be doubted. There was no need for an
expert to count the votes. The naked eye could see the checkmarks opposite the big ovals.
Indeed, nobody complained that the votes could not be read and counted. The COMELEC
representatives had no difficulty counting the votes. The 600 public school teachers of Pasay
City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object
to the rules on manual count on the ground that the ballots cannot be manually counted.
Indeed, in his original Petition, petitioner did not complain that the local ballots could not be
counted by a layman. Neither did the intervenor complain in his petition for intervention. The
allegation that it will take a trained eye to read the ballots is more imagined than real.
Petitioner cannot insist on automated counting under R.A. No. 8436 after the machines
misread or rejected the local ballots in five (5) municipalities in Sulu.
SEC. 9. Systems Breakdown in the Counting Center. In the event of a systems breakdown of all
assigned machines in the counting center, the Commission shall use any available machine or
any component thereof from another city/municipality upon approval of the Commission En
Banc or any of its divisions.
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October 6, 2011 181
The transfer of such machines or any component thereof shall be undertaken in the presence
of representatives of political parties and citizens' arm of the Commission who shall be
notified by the election officer of such transfer.
There is a systems breakdown in the counting center when the machine fails to read the
ballots or fails to store/save results or fails to print the results after it has read the ballots; or
when the computer fails to consolidate election results/reports or fails to print election
results/reports after consolidation.
It was inutile for the COMELEC to use other machines to count the local votes in Sulu for The
errors in counting were due to misprinting of ovals and the use of wrong sequence codes in
the local ballots. The errors were not machine-related. To grant petitioner's prayer to
continue the machine count of the local ballots will certainly result in an erroneous count and
subvert the will of the electorate.
the COMELEC order for a manual count was not only reasonable. It was the only way to count
the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi, Tudanan, Tapul and
Jolo. The bottom line is that by means of the manual count, the will of the voters of Sulu was
honestly determined. We cannot kick away the will of the people by giving a literal
interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine count
does not work. Counting is part and parcel of the conduct of an election which is under the
control and supervision of the COMELEC. It ought to be self-evident that the Constitution did
not envision a COMELEC that cannot count the result of an election.
To hold a special election only for the position of Governor will be discriminatory and will
violate the right of private respondent to equal protection of the law. The records show that
all elected officials in Sulu have been proclaimed and are now discharging their powers and
duties. Private respondent's election cannot be singled out as invalid for alikes cannot be
treated unalikes.
Punos take on Panganibans dissent: Upholding the sovereignty of the people is what
democracy is all about. When the sovereignty of the people expressed thru the ballot is at
stake, it is not enough for this Court to make a statement but it should do everything to have
that sovereignty obeyed by all. Well done is always better than well said.
IMMINENT VIOLENCE, NOT A GROUND FOR ABANDONMENT OF ELECTIONS IN AUTOMATED
ELECTION.
Even assuming arguendo that imminent violence threatened the counting center, such
situation would justify only the transfer of the counting venue. Even then, the concurrence of
the majority of the watchers for such transfer is still required under the OEC. It does not
appear on record that the consent of the watchers was ever sought, not to say given. On the
contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of
venue for the counting, was issued ex parte by the Comelec en banc, without any petition,
recommendation or proper investigation for said purpose. Such arbitrary and peremptory
issuance, in violation of law, again amounted to an abusive exercise of discretion. But, even
granting arguendo that the transfer of the counting venue was valid, the abandonment of the
automated count was definitely not a necessary legal consequence thereof. In other words,
only the venue could have been changed, but not the method of counting. If the Comelec had
conducted an automated count in Manila, that may even be arguably sustained. I repeat, the
alleged imminent threat of violence did not at all justify the manualization of the counting
process; if at all, it only authorized a change of venue of the automated count.
Although not expressly sanctioned by law, such parallel manual count may arguably be
regarded as falling within the residual regulatory authority of the Comelec. Unfortunately and
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 182 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

inexplicably, however, only a manual count was done; the Resolution ordering an automated
count was simply ignored without the Comelec giving any reason therefor. To repeat, there
was no reason at all to completely abandon the automated count. The Comelec had a duty to
comply with the mandate of Congress. Yet, for unstated and, unexplainable reasons, it simply
substituted the will of Congress with its own arbitrary action. Clearly, the Comelec acted
without or in excess of its jurisdiction.
The resort to a manual appreciation of the ballots is precluded by the basic features of the
automated election system, which requires minimum human intervention, the use of a special
quality of ballot paper, the use of security codes, the mere shading of an oval corresponding
to the name of the candidate voted for, and the mechanized discrimination of genuine from
spurious ballots, as well as rejection of fake or counterfeit ones. The automated system takes
away the discretion of the boards of election inspectors (BEI) in appreciating ballots. Thus, the
resort to a manual count under the facts of this case was antithetical to the rationale and
intent behind RA 8436. The very purpose of the law was defeated by the cumbersome,
inaccurate and error-prone manual system of counting automated votes.
DOJILLO V. COMELEC | Carpio, 2006
FACTS
Petitioner NILO L. DOJILLO and respondent RODRIGO N. VIDAL were two of three candidates
for Punong Barangay of Nibaliw Vidal, San Fabian, Pangasinan in the15 July 2002 synchronized
elections for the Barangay and the Sangguniang Kabataan. Respondent VIDAL obtained 374
votes while petitioner DOJILLO received 371 votes. The BET (Board of Election Tellers)
declared respondent VIDAL as the elected Punong Barangay by a plurality of three votes.
Petitioner DOJILLO filed an election protest before the trial court on 19 July 2002. Docketed
as Election Protest No. 012 (SF-02), petitioner questioned the election results in Precinct Nos.
84-A, 86-A1, and 87-A1 on grounds of misappreciation of ballots and incorrect tallying of
votes.
The Trial Court found that one ballot previously regarded as a stray vote should be counted in
favor of petitioner and that 11 ballots previously counted in favor of respondent should be
declared as marked ballots.
The total votes garnered by each of the parties are as follows:
For [Petitioner DOJILLO] 371+1 = 372 total votes
For [Respondent VIDAL] 374-11 = 363 total votes
Decision is hereby rendered declaring the protestant NILO L. DOJILLO, winner by nine (9)
votes over protestee as Chairman or Punong Barangay of Nibaliw Vidal, San Fabian,
Pangasinan and hereby proclaims the said NILO L. DOJILLO the duly elected Chairman/Punong
Barangay of Barangay Nibaliw, Vidal, San Fabian, Pangasinan, and hereby declares the
previous proclamation of protesteeRodrigo N. Vidal as the duly elected Chairman/Punong
Barangay made by the Board of Election Tellers of Nibaliw Vidal nullified and of no effect.
Respondent VIDAL filed an appeal to the COMELEC Second Division. The COMELEC Second
Division reversed the decision of the trial court.
Protestee-Appellant Rodrigo N. VIDAL is hereby declared as the duly elected Punong
Barangay of Barangay Nibaliw Vidal, San Fabian, Pangasinan.
Petitioner DOJILLO filed his Motion for Reconsideration with the COMELEC En Banc. COMELEC
En Banc, through Chairman Benjamin S. Abalos, issued a Status Quo Ante Order
COMELEC En Banc denied petitioners motion for reconsideration. The COMELEC En Banc also counted in favor of respondent.
modified the COMELEC Second Divisions findings as follows:
DOJILLO VIDAL
Total votes per Election Returns 371 374
Add valid claims 1 3
Total 372 377
Less invalid votes 1 3
Total 371 374
Add valid votes 1 0
Total valid votes 372 374
ISSUE
WON respondent is the duly elected Punong Barangay of Barangay Nibaliw Vidal, San Fabian,
Pangasinan? To resolve this issue, it is necessary to determine whether the marked ballots and
stray ballots were properly appreciated.
HELD/RATIO
A ballot indicates the voters will. There is no requirement that the entries in the ballot be written
nicely or that the name of the candidate be spelled accurately. In the reading and appreciation of
ballots, every ballot is presumed valid unless there is a clear reason to justify its rejection. The
object in the appreciation of ballots is to ascertain and carry into effect the intention of the voter, if
it can be determined with reasonable certainty.
Anent appreciation of ballots which petitioner previously objected to as MARKED BALLOTS and
which the COMELEC should not have counted in favor of respondent.
The distinctive use of, and several impositions with blue ink on the name of Dojillo with the
rest of the votes written in black ink, indicates no other intention than to identify the
deliberately put by the voter as identification marks, the use of 2 ormore kinds of writing shall
not invalidate ballot.
A big X is written on the space*s+ 2 to 7 for kagawad after Pedeglorio Victor L. x x x The voter
is quite intelligent as shown by the hand writing, but the big X cannot be considered as
desistance
on the spaces on which the voter has not voted shall be considered as signs to indicate his
desistance from voting and shall not invalidate the ballot.
What was written is neither the name or surname of Vidal. It cannot even be considered
under the rule on idem sonans, the writing seems to be in Latin or Greek VIONI, VIOBI,
written which, when read, has a sound similar to the name or surname of a candidate when
correctly written shall be counted in his favor. The idem sonans rule does not require
exactitude nor perfection in the spelling of names. The question whether a name sounds the
same as another is not one of spelling but of pronunciation.
Contains two names for one position. -> VALID. Par 19 of Section 211 of the OEC any vote in
favor of a candidate for an office for which he did not present himself shall be considered as
astray vote but it shall not invalidate the whole ballot. Vic Pedeglorio was not a candidate for
Punong Barangay, but for Kagawad.
Anent appreciation of ballots which are stray votes and which the COMELEC should not have
The entry in the space for Punong Barangay is JINV Pedeglorio. TC decreed that Exhibit C
is indeed a stray ballot. However, the COMELEC Second Division held it is a valid vote for

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Ma. Jessa M. Alvarez 2003-29275
respondent. The name Jing Pedeglorio was written on the space for Punong Bgy., with the
surname Vidal superimposed in capital letters over the surname Pedeglorio. The ballot
OEC, Unless it should clearly appear that they have been deliberately put by the voter as
identification marks, x x x the use of two or more kinds of writing shall not invalidate the
ballot. and Par 9 of the same section: When in a space in the ballot there appears a name of
a candidate that is erased and another clearly written, the vote is valid for the latter.
Written in big printed and bold capital letters unlike the rest of the entries. Again, the
COMELEC Second Division disagreed with the trial court and ruled that the name JING-
VIDAL, which was boldly written, does not nullify the ballot as marked. The voter merely
clearly appear that they have been deliberately put by the voter as identification marks, x x x
hyphens between the first name and surname of a candidate x x x, the use of two or more
kinds of writing shall not invalidate the ballot.
ballot should be counted if it is marked afterwards by some person or persons other than the
voter himself. Subsequent changes in the ballot made by a person other than the voter should
not be permitted to affect the result of the election or destroy the will of the voters.
Name Jing Calong is written in the space for Punong Barangay. Jing is respondents
nickname, while Calong is petitioners nickname. The trial court ruled that this is a stray
ballot. The COMELEC Second Division agreed with the trial court. The COMELEC En Banc was
silent on Exhibit 2-F. -> INVALID. Par 14 of S211 OEC, Any vote x x x which does not
sufficiently identify the candidate for whom it is intended shall be considered as a stray vote
but shall not invalidate the whole ballot.
J. Vidal only was written
nickname of the candidate may be used together with the surname of the candidate for the
purpose of identifying the candidate for whom the voter votes
Vidal was proclaimed by the SC.
M. Canvassing and Proclamation
LIBARDOS V. CASAR | Padilla, 1994
FACTS
Complainant Mayor Perlita P. LIBARDOS alleged that she was an official mayoralty candidate
of the Laban ng Demokratikong Pilipino (LDP) in Maigo, Lanao del Norte, in the synchronized
national and local elections held on 11 May 1992.
During the canvassing of the election returns, the candidate of the Nationalist People's
Coalition (NPC), Wilfredo Randa, filed a complaint for Preliminary Injunction with the
Municipal Circuit Trial Court (MCTC) of Kolambugan-Maigo, Lanao del Norte, presided over by
respondent judge Abdullah M. CASAR, docketed as Special Proceedings No. 19
Respondent Judge issued the order dated 14 May 1992, ordering the Board of Canvassers to
suspend the canvassing of the election returns of Precinct No. 10-A until either the
Commission on Elections, Manila, or the Regional Trial Court in Iligan City could act on the
complaint of Wilfredo Randa
The said order caused the delay in the canvassing of the election returns which was resumed
only after the Provincial Election Supervisor of Lanao del Norte sent a message to the
COMELEC (Manila) requesting that an order be issued ordering the Board of Canvassers,
Maigo, Lanao del Norte, to disregard the restraining order of respondent judge.
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October 6, 2011 183
Respondent admitted having issued without jurisdiction the questioned order of 14 May
1992. He justified its issuance "as an immediate remedy and arrangement to prevent
bloodshed between the contending parties, the complainant's followers, the LDP and the
oppositions (sic) followers, the NPC
The Court referred this case to the Office of the Court Administrator for evaluation, report
and recommendation.
Report of the Court Administrator states:
xxx the assailed Order was issued without jurisdiction, the acts complained of should be met
with a corresponding sanction. Formal investigation of the charge against the respondent for
issuing the questioned order without jurisdiction is no longer necessary in view of the
respondent's admission. The reason/defense interposed by the respondent is unavailing. As a
judicial officer, he is to (sic) know and keep abreast with the latest law and jurisprudence. His
feeling of sympathy and fairness cannot serve as a license for him to deliberately transgress or
dispense with the existing laws involving the controversy. To hold the respondent
administratively liable for ignorance of the law, there must be reliable evidence to show the
judicial acts complained of were ill-motivated and corrupt. The documents on file in the case
do not show that questioned order was ill-motivated or corrupt.
xxx respondent acted with grave abuse of discretion in issuing his Order dated May 14, 1992
ordering the Board of Canvassers of Maigo, Lanao del Norte to suspend the canvassing of the
election returns knowing full (sic) well that he does not have jurisdiction to act on the petition
filed by Wilfredo Randa.
ISSUE
WON Casar was grossly ignorant of the law.
HELD/RATIO
YES. While his reasons for issuing the assailed order are perhaps commendable and demonstrative
of his concern for peace and order during the election period in the given community, he lost sight
of his bounden duty, as a Judge, to be the embodiment of competence, integrity, and
independence (Rule 1.01, Canon 1, supra). A Judge should behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary (Rule 2.01, Canon 2, supra).
PIMENTEL V. COMELEC | Makasiar, 1985
FACTS
In the May 14, 1984 elections for assemblyman for the lone seat in Cagayan de Oro City, the
following candidates with their respective political parties, filed their certificates of candidacy:
Aquilino Q. Pimentel..................... PDP-LABAN
Pedro N. Roa................................. KBL
Guerrero Adaza...................... Mindanao Alliance
Galvino Jardin
Magnaye Alsal
After the casting of the ballots, the Board of Canvassers for Cagayan de Oro City (Board)
convened at 7:18 P.M. of Election Day
Composition of the Board of Canvassers:
ChairmanAtty. Jose B. Amarga
MembersFiscal Noli T. Catli
Supt. Teodoro P. Dano
Atty. Arturo LegaspiKBL Representative
PROF. GISELLA N. DIZON-REYES
 184 Ma. Jessa M. Alvarez
Atty. Graciano Neri Jr.MA Representative
Considering that at the time there were no election returns available for canvass, the Board
temporarily adjourned and resumed at 10:15 of the same night, at which time there were 20
election returns from 20 voting centers. The canvass, upon motion of PDP-Laban was again
adjourned and reset for the following day May 15, 1984 at 9:00 in the morning.
The canvass terminated at 7:00 P.M. of May 16, 1984 and the Board proclaimed Pimentel as
the winner
After the proclamation, a series of pleadings of petitioner were received by the Commission
on Elections Commission in Manila
prior to the elections, the PDP LABAN asked the Comelec that it be accredited as the
dominant opposition party in Cagayan de Oro City. The Comelec, however, denied PDP-
LABAN's request and, instead, accredited the Mindanao Alliance as the dominant opposition
party in Cagayan de Oro City
Not being recognized as the dominant opposition party, the PDP-LABAN, therefore, was not
entitled to have any representative in the citizens election committee and in the city board of
canvassers. Only the KBL and the Mindanao Alliance were duly represented because they
were the ones recognized by the Comelec.
On May 15, 1984, during the canvassing, private respondent Pedro N. Roa, thru his duly
authorized representatives, filed with the Board of Canvassers a petition for the exclusion
from the canvass of 5-q election returns from 53 voting centers. He alleged that the
questioned election returns were fatally defective, irregularly prepared, not properly
Identified and submitted to the Board of Canvassers, and appear to be tampered with or
contain discrepancies.
Likewise, during the canvassing on May 15, 1984, Atty. Arturo Legaspi, KBL representative in
the Board, objected in writing to the inclusion in the canvass of three (3) bundles of election
returns coming from voting centers Nos. 21-199, inclusive, except those coming from voting
centers Nos. 109 and 198; on the ground that the manner of their delivery and transmittal
was not in accordance with Section 46 and BP 697; each bundle tied only by a plastic ribbon,
and not placed in a padlocked ballot box.
The City Board of Canvassers, however, overruled all the objections raised.
On May 16, 1984, private respondent ROA herein filed with respondent COMELEC a "Petition
for certiorari and Prohibition with Preliminary Injunction or Restraining Order. He assailed the
proceedings of the Board of Canvassers and the inclusion of the election returns from 53
voting centers.
ROA also filed with Comelec an "Urgent Appeal" docketed as Pre-Proclamation Case No. 16-
84 for annulment of canvass and proclamation and appointment of substitute board of
canvassers.
ROA filed with Comelec, central office, by registered mail, a pleading captioned "Petition for
Exclusion of Election Returns and to Declare Void A b Initio Proclamation of 'Nene' Pimentel, "
this time expressly impleading Pimentel as party respondent. Said petition assailed the
inclusion in the canvass of 176 election returns from Voting Centers Nos. 21 to 199 excluding
Voting Centers Nos. 198 and 109.
Petitioner, thru counsel Atty. Joker Arroyo, filed a Motion to Dismiss on the ground that the
respondent Commission has no jurisdiction over the person of petitioner Pimentel for the
reason that petitioner Pimentel has not been formally impleaded as party respondent by
Pedro N. Roa.
Comelec (Second Division) resolved: a) To deny the Motion to Dismiss; b) To order the records
of the proceedings of the Board of Canvassers including the minutes, the pleadings,
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2003-29275 October 6, 2011
documents and submission filed before said Board by the parties, and the election returns
contested during the canvassing be brought to the Commission on Election, Manila
the case was heard and respondent Commission (Second Division)required the parties to
submit their memoranda on the question of whether or not the aforementioned 176 election
returns are included in the present pre-proclamation case.
Commission (Second Division) issued the second questioned resolution ruling that the 176
election returns are included in the pre-proclamation case, and ordering the transfer of the
229 election returns as previously ordered in the June 20,1984 resolution.
petitioner Pimentel filed an Urgent Motion with respondent COMELEC assailing the
jurisdiction of the Second Division of respondent Commission on the ground that it does not
have the authority to decide controversies involving members of the National Assembly which
can only be decided en banc.
COMELEC issued a resolution denying petitioner's motion
petitioner Pimentel filed with this Court the instant petition for certiorari, prohibition and
mandamus with restraining order, praying among others that the COMELEC Second Division
has no jurisdiction over the subject matter and over his person.
this Court resolved to give due course to the original petition filed by herein petitioner
Aquilino Q. Pimentel, Jr.
COMELEC promulgated a decision on Pre-Proclamation Case No. 1684 a) Declaring null and
void ab initio the proclamation of respondent Aquilino Q. Pimentel as elected member of the
office of the Batasang Pambansa made by the Cagayan de Oro City Board of Canvassers on
May 16, 1984; b) Declaring null and void the election returns c) Declaring that the total
number of votes received are: to Aquilino Q. Pimentel Jr., the total of 46,133 votes and to
Pedro N. Roa the total of 47,663; d) Declaring that Pedro N. Roa, in view of the above, has
received the highest number of votes e) Proclaiming Pedro N. Roa as the duly elected
Member for the Office of the Batasang Pambansa for the Lone Seat of Cagayan de Oro City
ISSUES
(1) WON COMELEC committed error in its decision on Pre-Proclamation Case No. 1684YES
(2) WON Pimentel was correctly proclaimedYES
HELD/RATIO
The findings of the respondent Comelec that there was a serious common irregularity" in the
preparation of the 87 election returns, is completely belied by the findings of the Group of
Revisors created by this Court purposely to aid this Court in the appreciation of the ballots
and the election returns of the 225 voting centers disputed by the parties herein.
There was no indication that the padlocks and the Comelec metal seals were tampered with,
although some metal seals were not locked. The revision teams observed that the ballots cast
for the different candidates, which were meticulously and carefully appreciated and counted
during the revision, tallied with the votes credited to said candidates and duly recorded in the
election returns found inside the ballot boxes. Although there were discrepancies noted by
the revision teams, however. the same were very, minor, presumably due to human error in
the preparation of and entering minor data -in the ER.The revision teams concluded that
there was no indicium of irregularity in the preparation of the election returns pertaining to
the 225 voting centers, including the 87 voting centers whose election returns were annulled
by the respondent Comelec. The omission to lock some metal seals attached to a few ballot
boxes and the minor lapses in the preparation, of and in the entries of some data copies of
said election returns could be ascribed to the fact that the preparation of the election returns
was done close to midnight subsequent to the conclusion of the canvass in the voting centers
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
when the members of the Citizen Election Committee were already tired and hungry,
aggravated by lack of adequate lighting. It should be recalled that as late as 10:15 P.M. of May
14, 1984, only 20 election returns were received by the Board of Canvassers, which was
constrained to postpone the canvass the following morning of May 15, 1984. After the
revision of the ballots coming from the questioned 225 voting centers, the Chairmen of the 6
teams of revisors submitted their summary and evaluation which included the figures
appearing in the copies of the election returns in the possession of the election registrar (The
City Treasurer) which copies were also presented or submitted to the Court during the
examination of the physical condition of the ballot boxes and the comparison of the entries in
the copies of the election returns contained in the ballot boxes and the copies of the said
election returns of the parties before the aforementioned members of the Court.
This case is merely a pre-proclamation dispute. Roa can still file a regular election protest,
during the hearing of which the disputed ballots will be examined and appreciated.
BRILLANTES V. COMELEC | Callejo, 2004
FACTS
Congress enacted Republic Act No. 8436 authorizing the COMELEC to use an automated
election system (AES) for the process of voting, counting of votes and
canvassing/consolidating the results of the national and local elections. It also mandated the
COMELEC to acquire automated counting machines (ACMs), computer equipment, devices
and materials; and to adopt new electoral forms and printing materials.
COMELEC initially intended to implement the automation during the May 11, 1998
presidential elections, particularly in the (ARMM). The failure of the machines to read
correctly some automated ballots, however, deferred its implementation.
In the May 2001 elections, the counting and canvassing of votes for both national and local
positions were also done manually, as no additional ACMs had been acquired for that
electoral exercise because of time constraints.
On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization
program for the 2004 elections consisting of three (3) phases, to wit:
(1) PHASE I Computerized system of registration and voters validation or the so-called
"biometrics" system of registration;
(2) PHASE II Computerized voting and counting of votes; and
(3) PHASE III Electronic transmission of results.
COMELEC issued an Invitation to Bid for the procurement of supplies, equipment, materials
and services needed for the complete implementation of all three phases
COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to
Mega Pacific Consortium and correspondingly entered into a contract with the latter to
implement the project.
COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI)
denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF
ELECTION RESULTS PROJECT CONTRACT.
Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and
prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for
Phase II of AES to Mega Pacific Consortium
this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the
contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent
contract entered into by the respondent COMELEC with Mega Pacific Consortium for the
purchase of computerized voting/counting machines for the purpose of implementing the
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October 6, 2011 185
second phase of the modernization program. Phase II of the AES was, therefore, scrapped
based on the said Decision of the Court and the COMELEC had to maintain the old manual
voting and counting system for the May 10, 2004 elections.
Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to
implement Phase III of the AES through an electronic transmission of advanced "unofficial"
results of the 2004 elections for national, provincial and municipal positions, also dubbed as
an "unofficial quick count."
Senate President Franklin Drilon had misgivings and misapprehensions about the
constitutionality of the proposed electronic transmission of results for the positions of
President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his
position
All these developments notwithstanding, the COMELEC was determined to carry out Phase III
of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI,
conducted a field test of the electronic transmission of election results.
COMELEC met en banc to update itself on and resolve whether to proceed with its
implementation of Phase III of the AES.
Despite the dire and serious reservations of most of its members, the COMELEC, the next day,
April 28, 2004, barely two weeks before the national and local elections, approved the
assailed resolution 6712 declaring that it "adopts the policy that the precinct election results
of each city and municipality shall be immediately transmitted electronically in advance to the
COMELEC, Manila."
COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers
(ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the
Overseas Absentee Voting.
Section 13 of the assailed resolution provides that the encoding proceedings were ministerial
and the tabulations were "advanced unofficial results." The entirety of Section 13, reads:
Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of
parties, accredited political party, sectoral party/organization or coalition thereof under the
party-list, through its representative, and every candidate for national positions has the right
to observe/witness the encoding and electronic transmission of the ERs within the authorized
perimeter.
Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or
sangguniang bayan belonging to the same slate or ticket shall collectively be entitled to only
one common observer at the ETC.
The citizens arm of the Commission, and civic, religious, professional, business, service, youth
and other similar organizations collectively, with prior authority of the Commission, shall each
be entitled to one (1) observer. Such fact shall be recorded in the Minutes.
The observer shall have the right to observe, take note of and make observations on the
proceedings of the team. Observations shall be in writing and, when submitted, shall be
attached to the Minutes.
The encoding proceedings being ministerial in nature, and the tabulations being advanced
unofficial results, no objections or protests shall be allowed or entertained by the ETC.
In keeping with the "unofficial" character of the electronically transmitted precinct results,
the assailed resolution expressly provides that "no print-outs shall be released at the ETC and
at the NCC." Instead, consolidated and per-precinct results shall be made available via the
Internet, text messaging, and electronic billboards in designated locations. Interested parties
may print the result published in the COMELEC web site.
National Citizens Movement for Free Elections (NAMFREL), and the heads of the major
political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino
PROF. GISELLA N. DIZON-REYES
 186 Ma. Jessa M. Alvarez 2003-29275
(LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive
Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the
Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate
President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-
Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko
Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the
assailed resolution
Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712
ISSUE
WON the COMELEC Resolution allowing for electronic transmission of partial results was attended
by GALADEJ.
HELD/RATIO
YES. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results
based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the
votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution. The
returns of every election for President and Vice-President duly certified by the board of canvassers
of each province or city, shall be transmitted to the Congress, directed to the President of the
Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than
thirty days after the day of the election, open all the certificates in the presence of the Senate and
the House of Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the votes.
If the COMELEC is proscribed from conducting an official canvass of the votes cast for the
President and Vice-President, the COMELEC is, with more reason, prohibited from making an
"unofficial" canvass of said votes.
The assailed COMELEC resolution contravenes the constitutional provision that "no money
shall be paid out of the treasury except in pursuance of an appropriation made by law. The
use of the COMELEC of its funds appropriated for the AES for the "unofficial" quick count
project may even be considered as a felony under Article 217 of the Revised Penal Code, as
amended. Neither can the money needed for the project be taken from the COMELECs
savings, if any, because it would be violative of Article VI, Section 25 (5)47 of the 1987
Constitution.
The assailed resolution disregards existing laws which authorize solely the duly-accredited
citizens arm to conduct the "unofficial" counting of votes. Under Section 27 of RA 7166, as
amended by RA 8173, and reiterated in Section 18 of RA 8436, the accredited citizens arm -
in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the
conduct of an "unofficial" counting of the votes, whether for the national or the local
elections. No other entity, including the respondent COMELEC itself, is authorized to use a
copy of the election returns for purposes of conducting an "unofficial" count.
The second or third copy of the election returns, while required to be delivered to the
COMELEC under the aforementioned laws, are not intended for undertaking an "unofficial"
count. The aforesaid COMELEC copies are archived and unsealed only when needed by the
respondent COMELEC to verify election results in connection with resolving election disputes
that may be imminent. However, in contravention of the law, the assailed Resolution
authorizes the so-called Reception Officers (RO), to open the second or third copy intended
for the respondent COMELEC as basis for the encoding and transmission of advanced
"unofficial" precinct results. This not only violates the exclusive prerogative of NAMFREL to
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October 6, 2011
conduct an "unofficial" count, but also taints the integrity of the envelopes containing the
election returns, as well as the returns themselves, by creating a gap in its chain of custody
from the Board of Election Inspectors to the COMELEC.
Section 52(i) OEC, which is cited by the COMELEC as the statutory basis for the assailed
resolution, does not cover the use of the latest technological and election devices for
"unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized
representatives of accredited political parties and all candidates in areas affected by the use
or adoption of technological and electronic devices not less than thirty days prior to the
effectivity of the use of such devices.
SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections, and shall : (i) Prescribe the use
or adoption of the latest technological and electronic devices, taking into account the
situation prevailing in the area and the funds available for the purpose: Provided, That the
Commission shall notify the authorized representatives of accredited political parties and
candidates in areas affected by the use or adoption of technological and electronic devices
not less than thirty days prior to the effectivity of the use of such devices.
Before the COMELEC may resort to and adopt the latest technological and electronic devices
for electoral purposes, it must act in accordance with the following conditions: (a) Take into
account the situation prevailing in the area and the funds available for the purpose; and, (b)
Notify the authorized representatives of accredited political parties and candidates in areas
affected by the use or adoption of technological and electronic devices not less than thirty
days prior to the effectivity of the use of such devices.
Purpose: Accord to all political parties and all candidates the opportunity to object to the
effectiveness of the proposed technology and devices, and, if they are so minded not to
object, to allow them ample time to field their own trusted personnel especially in far flung
areas and to take other necessary measures to ensure the reliability of the proposed electoral
technology or device.
Resolution is without basis in law. Since this Court has already scrapped the contract for
Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the program. This
is so provided in Section 6 of Rep. Act No. 8436. SEC. 6. Authority to Use an Automated
Election System. -- To carry out the above-stated policy, the Commission on Elections, herein
referred to as the Commission, is hereby authorized to use an automated election system,
herein referred to as the System, for the process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections: Provided, however,
That for the May 11, 1998 elections, the System shall be applicable in all areas within the
country only for the positions of president, vice- president, senators and parties,
organizations or coalitions participating under the party-list system.
To achieve the purpose of this Act, the Commission is authorized to procure by purchase,
lease or otherwise, any supplies, equipment, materials and services needed for the holding of
the elections by an expedited process of public bidding of vendors, supplier s or lessors:
Provided, That the accredited political parties are duly notified of and allowed to observe but
not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in
the exercise of this authority, it becomes evident by February 9, 1998 that the Commission
cannot fully implement the automated election system for national positions in the May 11,
1998 elections, the elections for both national and local positions shall be done manually
except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated
election system shall be used for all positions.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275
Because of markedly different procedure, there is a great possibility that the "unofficial"
results reflected in the electronic transmission under the supervision and control of the
COMELEC would significantly vary from the results reflected in the COMELEC official count.
PROCEDURE OF CANVASS under OEC: 1. After the votes are cast and the polls closed, the BEI
for each precinct is enjoined to publicly count the votes and record the same simultaneously
on the tally boards and on two sets of ERs. Each set of the ER is prepared in 8 copies. 2. After
the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC),
which would canvass all the ERs and proclaim the elected municipal officials. All the results in
the ERs are transposed to the statements of votes (SOVs) by precinct. 3. These SOVs are then
transferred to the certificates of canvass (COCs) which are, in turn, brought to the Provincial
Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various
municipalities and proclaim the elected provincial officials, including those to the House of
Representatives. 4. The PBC would then prepare two sets of Provincial Certificates of Canvass
(PCOCs). One set is forwarded to Congress for its canvassing of the results for the Pres and VP.
The other set is forwarded to the COMELEC for its canvassing of the results for Senators. 5. As
the results are transposed from one document to another, and as each document undergoes
the procedure of canvassing by various Boards of Canvassers, election ERs AND COCs are
objected to and at times excluded and/or deferred and not tallied, long after the pre-
proclamation controversies are resolved by the canvass boards and the COMELEC.
PROCEDURE OF CANVASS under RESOLUTION: 1. The precinct results of each city and
municipality received by the ETCs would be immediately electronically transmitted to the
NCC.
Such data, which have not undergone the process of canvassing, would expectedly be
dissimilar to the data on which the official count would be based. 2. Resultantly, the official
and unofficial canvass, both to be administered by the COMELEC, would most likely not tally.
In the past elections, the "unofficial" quick count conducted by the NAMFREL had never
tallied with that of the official count of the COMELEC, giving rise to allegations of "trending"
and confusion. With a second "unofficial" count to be conducted by the official election body,
the respondent COMELEC, in addition to its official count, allegations of "trending," would
most certainly be aggravated. As a consequence, the electoral process would be undermined.
The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission
count is to avert the so-called "dagdag- bawas." The purpose, however, as the petitioner
properly characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs
profession that from the results of the "unofficial" count, it would be able to validate the
credibility of the official tabulation. To sanction this process would in effect allow the
COMELEC to preempt or prejudge an election question or dispute which has not been
formally brought before it for quasi-judicial cognizance and resolutions.
SC doubts that the problem of "dagdag-bawas" could be addressed by the implementation of
the assailed resolution. It is observed that such problem arises because of the element of
human intervention. In the prevailing set up, there is human intervention because the results
are manually tallied, appreciated, and canvassed. On the other hand, the electronic
transmission of results is not entirely devoid of human intervention. The crucial stage of
encoding the precinct results in the computers prior to the transmission requires human
intervention. Under the assailed resolution, encoding is accomplished by employees of the
PMSI. Thus, the problem of "dagdag-bawas" could still occur at this particular stage of the
process.
COMELEC unofficial quick count would be but a needless duplication of the NAMFREL
"quick" count, an illegal and unnecessary waste of government funds and effort.
LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012
October 6, 2011 187
SAMAD V. COMELEC | Cruz, 1993
FACTS
Petitioner Sukarno S. SAMAD and private respondent Bai Unggie ABDULA were among the
contenders for the position of Mayor in the Municipality of Kabuntalan, Maguindanao.
Both were proclaimed mayor-elect by two different canvassing boards the private
respondent, ABDULA by the board headed by Abas A. Saga, on May 28, 1992, and the
petitioner SAMAD, by the board headed by Mucado M. Pagayao, on May 29, 1992. Both went
to the Commission on Elections in separate petitions against each other.
SPA 92-314SAMAD; SPC 92-421ABDULA
COMELEC issued a resolution in SPA 92-314 directing its Law Department to: 1) summon both
election registrars Saga and Pagayao to appear before the Commission; 2) conduct an
investigation of the matter with a view to the prosecution of any one found responsible for
falsification of the election documents; and 3) require Election Supervisor Carmencita
Cabacungan to comment on the petition.
COMELEC issued Resolution No. 2489 declaring the termination of all pre-proclamation cases
except the 86 cases named in the list annexed thereto. SPA 92-314 was not included in the
list.
Petitioner SAMAD filed in the Regional Trial Court of Cotabato City an action against the
private respondent for quo warranto and prohibition with preliminary injunction. This was
docketed as SPL Civil Case 2938.
Judge Emmanuel D. Badoy issued a temporary restraining order, converted into a writ of
preliminary injunction directing private respondent Abdula to cease and desist from
exercising the powers and functions of the mayor of Kabuntalan and enjoining all officials and
entities to respect the proclamation of petitioner Samad.
ABDULA filed a petition with the Court of Appeals questioning the validity of the order. The
court issued a resolution enjoining its implementation.
Finding that both the conflicting certificates of canvass and proclamation prepared by the
Saga and Pagayao boards of canvassers were defective, the First Division of the COMELEC
denied the consolidated petitions and directed the Office of the Executive Director to
constitute a Special Board of Canvassers for the purpose of verifying which of the two sets of
statements of votes upon which the two different proclamation documents were based was
genuine, without prejudice to the resolution of the prayer for special elections in Kabuntalan.
COMELEC en banc sustained its First Division. It also declared that pending implementation of
the challenged resolution, it was the responsibility of the Department of Interior and Local
Government to designate an OIC-Mayor in the Municipality of Kabuntalan.
SAMAD filed with this Court a petition for certiorari with restraining order and injunction.
DILG issued a letter-directive recognizing the petitioner as mayor of Kabuntalan, but on
December 14, 1992, it allegedly issued another letter, this time authorizing the private
respondent to continue serving as a hold-over mayor. Samad then came again to this Court in
a petition for certiorari. This was referred to the Court of Appeals
President Fidel V. Ramos designated respondent ABDULA as officer-in-charge of the Office of
the Mayor of Kabuntalan. SAMAD filed with this Court a petition questioning this designation.
We issued a restraining order: 1) directing respondents Executive Secretary Edelmiro Amante
and Presidential Legal Counsel Antonio Carpio to cease and desist from implementing the
questioned designation; and 2) restraining respondent Abdula from assuming the position
and functions as OIC-Mayor of Kabuntalan.
PROF. GISELLA N. DIZON-REYES
 188 Ma. Jessa M. Alvarez
ISSUE
(1) Who has jurisdiction over the case COMELEC or RTC because of the quo warranto
proceedings?
(2) Who must be proclaimed?
HELD/RATIO
(1) COMELEC
(2) It could have been Samad had he not alleged the incompleteness of the canvass.
GENERAL RULE: The filing of an election protest or a petition for quo warranto precludes
the subsequent filing of a pre-proclamation controversy OR amounts to the abandonment of
one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon
the title of the protestee or the validity of his proclamation.
REASON: Once the competent tribunal has acquired jurisdiction of an election protest or a
petition for quo warranto, all questions relative thereto will have to be decided in the case
itself and not in another proceeding. This procedure will prevent confusion and conflict of
authority. Conformably, we have ruled in a number of cases that after a proclamation has
been made, a pre-proclamation case before the COMELEC is no longer viable.
EXCEPTIONS: 1) the board of canvassers was improperly constituted; 2) quo warranto was not
the proper remedy; 3) what was filed was not really a petition for quo warranto or an election
protest but a petition to annul a proclamation; 4) the filing of a quo warranto petition or an
election protest was expressly made without prejudice to the pre-proclamation controversy
or was made ad cautelam (Agbayani v COMELEC); 5) the proclamation was null and void
(Mutuc v COMELEC).
The Saga board which proclaimed the private respondent had been illegally constituted.
Letter request of Municipal Treasurer of Kabuntalan did not serve as an official designation of
Abbas Saga to take over the canvassing allegedly abandoned by Mucado Pagayao
Quo warranto was not the proper remedy because both parties claimed to have assumed the
office of the mayor of Kabuntalan. In a quo warranto proceeding, the petitioner is not
occupying the position in dispute. Moreover, under the Omnibus Election Code, quo warranto
is proper only for the purpose of questioning the election of a candidate on the ground of
disloyalty or ineligibility. Neith er of these grounds was invoked by Samad in SPL Civil Case
2938.
No less importantly, the case before the RTC was not really one for quo warranto nor was it
an election protest. PETITION FOR QUO WARRANTO under the OEC raises in issue the
disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent
from office but not necessarily to install the petitioner in his place. ELECTION PROTEST is a
contest between the defeated and winning candidates on the ground of frauds or
irregularities in the casting and counting of the ballots, or in the preparation of the returns. It
raises the question of who actually obtained the plurality of the legal votes and therefore is
entitled to hold the office.
Both petitions in the COMELEC and in the RTC were directed at the illegality of the
composition of the Saga board and of the proclamation of the private respondent. This matter
is within the jurisdiction of the COMELEC under 241, 242, and 243 OEC.
Sec. 241. Definition A pre-proclamation controversy refers to any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by any candidate or
by any registered political party before the board or directly with the Commission.
Sec. 242. Commission's exclusive jurisdiction of all proclamation controversies The
Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may
motu proprio or upon written petition, and after due notice and hearing, order the partial or
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2003-29275 October 6, 2011
total suspension of the proclamation of any candidate elect or annul partially or totally any
proclamation, if one has been made, as the evidence shall warrant in accordance with the
succeeding sections.
Sec. 243. Issues that may be raised in pre-proclamation controversy The following shall be
proper issues that may be raised in a pre-proclamation controversy. a) Illegal composition or
proceeding of the board of canvassers;
COMELEC should not have denied the consolidated petitions for the annulment of the
questioned proclamations. Having ascertained that the proclamation in favor of Abdula had
been made by a board constituted without proper authority, the COMELEC should have
declared such proclamation null and void, along with the certificate of canvass and
proclamation and the statements of votes prepared by that board.
HOWEVER, Samad had his foot in his mouth. He alleged that the proclamation was premature
as there were still three precincts which were not accounted for with a total number of 660
registered voters.
An incomplete canvass of votes is illegal and cannot be the basis of a valid proclamation. All
the votes cast in the election must be counted and all the returns presented to the board
must be considered as the disregard of some returns would in effect disenfranchise the voters
affected. A canvass cannot be reflective of the true vote of the electorate unless all the
returns are considered.
In this situation, COMELEC should determine whether there was indeed a failure of election
that would necessitate the calling of a special election in the said precincts. Regarding the
missing election returns in Precinct No. 13, Section 233 OEC mandates the board of
canvassers to obtain them from the corresponding boards of election inspectors. If these
returns have been lost or destroyed, the board may, upon prior authority of the Commission,
resort to any of the authentic copies of said election returns or a certified copy of said
election returns issued by the Commission. Any proclamation in violation of this provision is
null and void under Section 238 OEC.
It is only when authorized by the COMELEC or when the missing election returns will NOT
AFFECT THE RESULTS of the election that the board can terminate the canvass and proclaim
the candidates elected on the basis of the available returns. Precinct No. 13 had 224
registered voters and the margin between the petitioner and the private respondent is
allegedly 153 votes only. As the missing election returns of that precinct will affect the
outcome of the election, no proclamation can as yet be made.
ONG V. COMELEC | Romero, 1992
FACTS
Petitioner and private respondent were candidates for the congressional seat of the second
district of Northern Samar during the recently-concluded May 11, 1992 elections.
petitioner Ong garnered 24,272 votes while private respondent Lucero obtained 24,068 votes
or a difference of 204 votes as determined by the Provincial Board of Canavassers of Northern
Samar.
private respondent filed a petition with the COMELEC for the suspension of the proclamation
of petitioner and for a recount in precinct 13 since there was a failure of election occasioned
by the snatching of ballot boxes with prayer for the holding of special elections pursuant to
Section 6 of the Omnibus Election Code (Batas Pambansa Blg. 881) and for a recount of
precincts 7 and 16 pursuant to Section 234 of said code as the election returns from said
precincts were either missing or not legible. Private respondent also sought the recount of 52
precincts in order to correct "manifest errors" pursuant to Section 15 of Republic Act No.
AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
7166 in view of the disqualification of Alice Lucero, another candidate, thus leaving him as the
only candidate with that surname.
COMELEC en banc ordered the said board to stop the canvassing of votes, considering "the
pendency of a pre-proclamation controversy before the COMELEC."
private respondent filed an urgent motion for clarification on the use of the phrase "pre-
proclamation controversy" in its resolution dated June 2, 1992 considering that he alleged
only violations of Section 6, 233 and 236 of the Omnibus Election Code and that under Section
15 of Republic Act No. 7166, pre-proclamation cases are not allowed against candidates for
the House of Representatives. Subsequently, petitioner moved to lift the suspension order
COMELEC in an en banc resolution (a) denied Lucero's prayer for a correction of certificates of
canvass from Las Navas equivalent to 20 votes; (b) granted Lucero's prayer for a recounting of
votes from precincts 7 and 16 of Silvino Lobos by ordering the Provincial Election Supervisor
of Northern Samar to produce the ballot boxes from said precincts before the COMELEC; (c)
deferred its resolution on the issue of special election for precinct 13 of Silvino Lobos until
after the results from precincts 7 and 16 shall have been determined and (d) denied Lucero's
prayer for the recount of votes cast in 52 precincts of Catubig, Las Navas, Pambuyan, San
Roque and Laong.
private respondent filed with COMELEC an urgent motion to constitute a Special Board of
Election Inspectors.
petitioner filed this instant petition for certiorari with a prayer for the issuance of a temporary
restraining order seeking to enjoin the COMELEC from enforcing its June 2 order and its June
13, 1992 resolution.
COMELEC convened en banc it constituted a Special Board of Election Inspectors (BEI), a
Special Municipal Board of Canvassers (MBC) for precinct 16 and a Special Provincial Board of
Canvassers for Northern Samar (PBC), through Resolution No. 92-1813.
Special BEI recounted the votes from precinct 16 as contained in an election return showing
the following results: Lucero - 43 and Ong - 2. On the same day, the special MBC canvassed
the said election return.
special BEI likewise canvassed the COMELEC's copy of the election return from precinct 7 with
Ong winning 61 votes and Lucero gaining 29 votes. The canvass of the election return from
precinct 7 was made after the special MBC overruled private respondent's objection.
Thereafter, private respondent filed a notice of appeal with the COMELEC.
Court acting on the instant petition filed five days earlier, resolved to grant petitioner's prayer
for a temporary restraining order and ordered the COMELEC to cease and desist from
implementing its questioned order dated June 2, 1992 and its resolution dated June 13, 1992
in SPA No. 92-282.
COMELEC ceased to conduct any proceeding on SPA Case No. 92-282
petitioner on June 6, 1992, filed with the Special PBC for Northern Samar an urgent motion to
proceed with the canvass and to proclaim the winning candidate.
petitioner filed with the COMELEC en banc an equitable petition to review and to annul/set
aside the recount made on June 23, 1992 of precinct 16 of the Municipality of Silvino Lobos,
Northern Samar.
Hence, this petition for certiorari on the ground that the COMELEC en banc committed grave
abuse of discretion in issuing its order dated June 2, 1992 and its resolution dated June 13,
1992 which ordered the chairman of the PBC of Northern Samar not to reconvene the board
and granted a recount of the ballots in precincts 7 and 16 of the Municipality of Silvino Lobos,
Northern Samar.
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2003-29275 October 6, 2011 189
ISSUE
WON the COMELEC properly ordered the recount of the ballots.
HELD/RATIO
NO. The recount was premature.
COMELEC en banc has no jurisdiction to hear recount cases even if one of the prayers in the
petition e.g. prayer for holding of special election, was under its jurisdiction. Election cases
which included pre-proclamation controversies must first be heard and decided by a division
of the Commission. COMELEC en banc does not have the authority to hear and decide it in the
first instance.
Considering that Lucero alleged that the election returns of precinct 16 were missing, thus
invoking S233 OEC, BOC should have first obtained "such missing election returns from the
board of election inspectors concerned, or if said returns have been lost or destroyed, the
BOC, upon prior authority of the Commission, may use any of the authentic copies of said
election returns from Commissions." With regard to the ambiguity of election returns from
precinct 7, the BOC should have followed the procedures set forth in S234 OEC on material
defects in the election returns.
The COMELEC indiscriminately issued the order of recount even before the remedies under
the law as stated in Section 233 and 234 of the Omnibus Election Code have been complied
with. We agree with petitioner that 233 of the OEC that not authorized a recount. Indeed,
nowhere in Section 233 is there any mention of a recount of ballots. Instead, the remedy
under said Section is a referral to other authentic copies of election returns issued by the
Commission.
It bears stressing that under Sections 234, 235 and 236 of the Omnibus Election Code, an
order for a recount shall be issued only as a last resort and only if the commission is satisfied
that the identity and integrity of the ballots is violated, the Commission shall not order a
recount but shall seal and secure the ballot box.
The allegations of private respondent as contained in his petition for the suspension of the
proclamation of the winner eviden tly involves pre-proclamation issues, specifically on the
preparation of election returns. Aside from this petition, Lucero alleged violations of Section
233 and 236 OEC as contained in his urgent motion for clarification, which are indubitably
pre-proclamation matters. Thus, the COMELEC en banc, though it did not have the power to
issue the order dated June 2, 1992 (stop the canvass), was correct in classifying the issue at
hand as a pre-proclamation controversy.
Sec. 241. A pre-proclamation controversy refers to any question pertaining to or affecting
the proceedings of the board of canvassers which may be raised by any candidate or any
registered political party or coalition of political parties before the board or directly with the
Commission, or any matter raised under Section 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appreciation of the election returns.
Section 243 Issues that may be raised in pre-proclamation controversy. The following shall be
proper issues that may be issued in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers; (b) The canvassers election
returns are incomplete, contain material defects, appear to be tampered with or falsified, or
contain discrepancies in the same
returns or in other authentic copies thereof as mentioned in Section 233, 234, 234 and 236 of
this Code;
For purposes of elections, no pre-proclamation case is allowed against, among others, a
candidate of the HR as stated in 15 RA 7166, COMELEC gravely abused its discretion when it
PROF. GISELLA N. DIZON-REYES
 190 Ma. Jessa M. Alvarez
issued its June 2, 1992 order suspending the proclamation of the winner of the congressional
seat and in ordering a recount of precincts 7 and 16 through a resolution dated June 13, 1992.
Exception invoked in Lim v COMELEC is not availing. Illegal composition of the Municipal BEI, a
pre-proclamation ground which evidently has no connection with the preparation,
transmission, receipt, custody and appreciation of election returns
The act of the Board of Inspectors in declaring some votes as stray involves the appreciation
of ballots which is a proper subject for an election protest.
Dispositive: ER based on the recounted ballots from precinct 16 are hereby discarded and in
lieu thereof, authentic returns from said precinct should instead be made the basis for the
canvassing.
NAVARRO V. COMELEC | Carpio-Morales, 2003
FACTS
Amelita S. Navarro (petitioner) and Jose C. Miranda (private respondent) were candidates for
mayor of Santiago City, Isabela in the May 14, 2001 elections.
City Board of Canvassers (BOC) convened for the canvassing of the election returns. Upon
opening of the envelope containing the first return, counsel for petitioner objected on the
ground that the return was not properly sealed in accordance with the Omnibus Election
Code. Also alleging that in fact 95% of the returns in the first ballot box was not properly
sealed, petitioner objected to the inclusion thereof.
petitioner filed before the BOC a petition to exclude the election returns contained in 9 ballot
boxes on the ground that they were not secured with the required 3 padlocks. On account of
the filing of such petition, the BOC suspended the canvassing.
BOC denied the petition to exclude the election returns contained in the questioned 9 ballot
boxes. Petitioner appealed to the COMELEC.
The winning candidates for local positions, however, were not proclaimed in view of the
pending appeal of petitioner with the COMELEC.
COMELEC En Banc ordered the BOC to complete the canvassing of election returns and
proclaim all winning local candidates in Santiago City before June 30, 2001. Pursuant to said
resolution, the BOC proclaimed on July 4, 2001 the winning local candidates of Santiago City
including herein respondent Miranda who was proclaimed city mayor.
COMELEC Second Division, finding that the allegations of the appeal [of petitioner from the
BOC Resolution denying the exclusion of the election returns contained in the contested
ballot boxes] do . . . not raise a genuine pre-proclamation controversy as she was
questioning the condition of the ballot boxes, denied petitioners appeal. Her motion for
reconsideration was likewise denied by the COMELEC En Banc.
Hence, the present petition
ISSUE
(1) WON lack of the required number of padlocks on the ballot boxes containing the election
returns is a proper issue in a pre- proclamation case.
(2) WON a proclamation may be made pending appeal from the BOC Resolution denying the
exclusion of election returns.
HELD/RATIO
(1) NO.
(2) No, but this is not a pre-proclamation controversy hence 20 OEC cannot apply.
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2003-29275 October 6, 2011
Issues that may be raised in a pre-proclamation controversy under S243 OEC -> exclusive list.
a) Illegal composition or proceeding of the board of canvassers; b) The canvassed election
returns are incomplete, contain material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic copies thereof as mentioned
in Sections 233, 234, 235, and 236 of this Code; c) The election returns were prepared under
duress, threats, coercion, or intimidation, or they are obviously manufactured or not
authentic; and d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved candidate or
candidates
How to construe proceeding? Navarro says entirety of the steps that have to be done by the
BOC from the time it is created to constitute a Reception and Custody Group up to the time it
has completed the canvass and proclaimed a winner. Resolution 3848: SEC. 21 Safekeeping
of transmitted Election Returns or Certificate of Canvass. The Board shall place the ER/COC
in ballot boxes that shall be locked with 3 padlocks and one serially numbered self-locking
metal seal. The members of the Board shall keep a key to the three padlocks. The serial
number of every metal seal used shall be entered in the minutes. The said ballot boxes shall
be kept in a safe and secured room before, during and after the canvass. The room shall be
locked with three padlocks with the keys thereof kept by each member of the Board.
SEC. 25 Canvassing Procedure. The Board shall comply with the following rules: (Emphasis
in the original). b) The Reception and Custody Group shall, after recording all the data
required under Sec. 23 hereof, place all envelopes containing Election Returns/Certificate of
Canvass received by it inside an empty ballot box. When the ballot box is already full or when
there is no more Election Returns/Certificate of Canvass to be received, the Reception and
Custody Group shall close the ballot box and lock the same with padlock and metal seal. The
Reception and Custody Group shall submit the locked ballot box to the Board, for assignment
to the Canvassing Committee, if any, together with the list of precinct numbers or
city/municipality of the Election Returns/ Certificate of Canvass contained therein. For this
purpose, the Reception and custody Group shall maintain a record of the Election Returns/
Certificate of Canvass submitted to the Board.
SEC. 26 Adjournment/ suspension of canvass. A. In case of adjournment or suspension of
canvass: c) The remaining unopened envelopes and Statement of Votes containing the page
partial total shall be placed in the ballot box provided for the purpose for which shall be
locked with three padlocks and self-locking metal seals. The members of the Board shall keep
the keys to each padlock. B. Upon resumption of the canvass: a) The secretary of the Board
shall verify and enter in the minutes of the three padlocks and the metal seal, as well as its
serial number.
Non-compliance by a BOC of the prescribed canvassing procedure is not an illegal
proceeding under paragraph (a) of Section 243 of OEC, given the summary nature of a pre-
proclamation controversy, consistent with the laws desire that the canvass and proclamation
be delayed as little as possible. A pre-proclamation controversy is limited to an examination
of the election returns on their face and the COMELEC as a general rule need not go beyond
the face of the returns and investigate the alleged election irregularities.
Citing Baterina v COMELEC: While the aforesaid grounds may, indeed, involve a violation of
the rules governing the preparation and delivery of election returns for canvassing, they do
not necessarily affect the authenticity and genuineness of the subject election returns as to
warrant their exclusion from the canvassing. The grounds for objection to the election returns
made by petitioners are clearly defects in form insufficient to support a conclusion that the
election returns were tampered with or spurious.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 191

20 of RA 7166 applies only where the objection deals with a pre-proclamation controversy,
not where, as in the present petition, it raises or deals with no such controversy.
Section 20. Procedure in Disposition of Contested Election Returns. x x x (i) The board of
canvassers shall not proclaim any candidate as winner unless authorized by the Commission
after the latter has ruled on the objections brought to it on appeal by the losing party. Any
proclamation in violation hereof shall be void ab initio, unless the contested returns will not
adversely affect the results of the election.
PATORAY V. COMELEC | Mendoza, 1995
FACTS
Pertinent laws: 236 OEC and 17 RA 6646 (Electoral Reforms Law of 1987) Sec. 236.
Discrepancies in election returns. In case it appears to the BOC that there exists
discrepancies in the other authentic copies of the election returns from a polling place or
discrepancies in the votes of any candidate in words and figures in the same return, and in
either case the difference affects the results of the election, the Commission, upon motion of
the board of canvassers or any candidate affected and after due notice to all candidates
concerned, shall proceed summarily to determine whether the integrity of the ballot box had
been preserved, and once satisfied thereof shall order the opening of the ballot box to
recount the votes cast in the polling place solely for the purpose of determining the true
result of the count of votes of the candidates concerned.
Sec. 17. Certificate of Votes as Evidence. The provisions of Sections 235 and 236 of OEC

Petitioner HADJI HAMID PATORAY and private respondent TOPAAN D. DISOMIMBA were notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering,
among the candidates for mayor of Tamparan in the election of May 8, 1995. During the alteration, falsification or any anomaly committed in the ER concerned, when duly
canvassing of votes by the Municipal Board of Canvassers (MBC), private respondent objected authenticated by testimonial or documentary evidence presented to the board of canvassers
to the inclusion of the election returns from Precinct Nos. 16, 17, 19 and 20-A on the grounds by at least two members of the board of election inspectors who issued the certificate:
that the returns had been "prepared under duress, threats, coercion, and intimidation" and Provided, That failure to present any CoV shall not be a bar to the presentation of other
that they were "substituted, fraudulent and obviously manufactured returns." evidence to impugn the authenticity of the ER.
MBC, after receiving the evidence of the parties, denied private respondent's objections and The Certificate of Votes is evidence not only of tampering, alteration, falsification or any other
included the four (4) questioned election returns, noting that they appeared to be "clean, anomaly in the preparation of election returns but also of the votes obtained by candidates.
genuine and regular on their faces." The Certificate of Votes in Precinct No. 16 shows that petitioner Hadji Hamid Patoray received
private respondent filed an appeal (docketed as SPC No. 95-266) from the rulings of the MBC. 207 votes (not 237 as indicated in the election return), while private respondent obtained 137
Second Division of the COMELEC, after hearing, affirmed the ruling of the MBC with respect to (not 107 as indicated in the election return). The difference could thus affect the result of the
the election returns from Precinct Nos. 17 and 19 but reversed it with respect to the election voting for mayor. COMELEC's Second Division could also have ordered a recount of the votes
returns from Precinct Nos. 16 and 20-A. The Second Division ordered these returns excluded cast after determining that the ballot box has not been tampered with in accordance with
from the count. 236 of the OEC. The failure of COMELEC to do either, after excluding the election return will
Petitioner Private result in the disfranchisement of the voters in Precinct No. 16.
HOWEVER, COMELEC's Second Division erred in ordering the exclusion of Election Return No.
Respondent 661295 on the basis of the Certificate of Votes cast in Precinct No. 20-A and the affidavit of
Votes credited 3,778.00 3,753.00 the chairperson of the BEI of Precinct No. 20-A. It ordered the exclusion of the ER from this
before exclusion precinct for being incomplete in the sense that it lacked data as to provincial and
Less: Precinct (237.00) (107.00) Certificate of Votes under 236 of the OEC, in relation to RA 6646, 17, but one involving
No. 16 MATERIAL DEFECTS in an election return under 234 of the OEC.
Precinct (122.00) (34.00) Sec. 234. Material defects in the election returns. If it should clearly appear that some
No. 20- requisites in form or data had been omitted in the election returns, the board of canvassers
A shall call for all the members of the board of election inspectors concerned by the most
TOTAL 3,419.00 3,612.00 expeditious means, for the same board to effect the correction: Provided, That in case of the
omission in the election returns of the name of any candidate and/or his corresponding votes,
petitioner filed a motion for reconsideration, but the COMELEC en banc denied his motion the board of canvassers shall require the board of election inspectors concerned to complete
even as the COMELEC en banc granted private respondent's motion for the constitution of a the necessary data in the election returns and affix therein their initials: Provided, further,
new MBC to implement the Second Division's resolution. That if the votes omitted in the returns cannot be ascertained by other means except by
Hence, this petition. recounting the ballots, the Commission, after satisfying itself that the identity and integrity of
the ballot box have not been violated, shall order the board of election inspectors to open the
ISSUE ballot box, and, also after satisfying itself that the integrity of the ballots therein has been
WON COMELEC properly ordered the exclusion of the ER considering the discrepancy between the duly preserved, order the board of election inspectors to count the votes for the candidate
"taras" and the written figures. whose votes have been omitted with notice thereof to all candidates for the position involved
and thereafter complete the returns.
HELD/RATIO The right of a candidate to avail of this provision shall not be lost or affected by the fact that
YES. However, Second Division should have ordered a recount of the ballots or used the Certificate an election protest is subsequently filed by any of the candidates.
of Votes cast in the precinct in question to determine the votes for each of the parties in this case.
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 192 Ma. Jessa M. Alvarez
The Certificate of Votes cast in Precinct No. 20-A cannot be used even if RA 6646, 17 were
applicable, because it was signed only by the chairperson of the BEI. RA 6646, 16 requires
that it be signed and thumbmarked by each member of the BEI which issued the certificate.
Consistently with the summary nature of the proceedings, what the COMELEC's Second
Division could have done was simply to order a recount of the votes cast in the two precincts
and direct the proclamation of the winner accordingly.
Dispositive: Commission is ordered to issue another one in accordance with this decision
BARBERS V. COMELEC | Sandoval-Guttierez, 2007
FACTS
Robert Z. Barbers (Barbers) and Biazon were candidates for re-election to the Senate of the
Philippines in the 10 May 2004 Synchronized National and Local Elections (elections).
COMELEC sitting en banc as the NBC for the election of Senators promulgated Resolution No.
NBC 04-002 proclaiming the first 11 duly elected Senators in the elections. The COMELEC
declared that it would proclaim the remaining 12th winning candidate for Senator after
canvassing the remaining unsubmitted COCs.
COMELEC promulgated Resolution No. NBC 04-005 proclaiming Biazon as the 12th ranking
duly elected 12thSenator of the Republic of the Philippines in the May 10, 2004 national and
local elections, to serve for a term of 6 years, beginning on June 30, 2004 in accordance with
Article VI, Section IV of the Constitution of the Philippines. The COMELEC stated that after
the canvass of the supplemental Provincial COCs from Maguindanao (Cotabato City), Lanao
del Sur and one barangay in Nueva Vizcaya, Biazon obtained 10,635,270 votes nationwide.
On the other hand, Barbers obtained 10,624,585 votes.
Claiming that Biazons proclamation was void, Barbers filed a petition to annul the
proclamation of Biazon as Senator of the Republic of the Philippines with the COMELEC.
Barbers asserted that the proclamation of Biazon was illegal and premature being based on
an incomplete canvass. Barbers asserted that the remaining uncanvassed COCs and votes
and the results of the special elections, which were still to be conducted, would undoubtedly
affect the results of the elections.
Barbers filed an Omnibus Motion for Immediate Service of Summons, for Suspension of the
Effects of Proclamation, and to Set Case for Hearing. Barbers asserted that an immediate
resolution of the present case was necessary because the term of office of Senators would
commence on 30 June 2004. Barbers further claimed that there were Municipal COCs still to
be included in the senatorial canvass and special elections still to be held in certain
municipalities involving a total of 29,219 votes. Thus, Barbers insisted that suspension of the
effects of the proclamation of Biazon was necessary. Barbers stressed that there could be no
valid proclamation based on an incomplete canvass.
COMELEC issued the first assailed Resolution, DENYING the petition to annul the proclamation
of respondent RODOLFO G. BIAZON for LACK OF MERIT.
Barbers filed a motion for reconsideration which the COMELEC en banc denied
Hence, this petition.
ISSUE
WON COMELEC erred when it deliberately insisted in resorting to and in using and considering, for
purposes of tallying/tabulation of the still uncanvassed election results, MERE improvised
Municipal COCs, which are NON-CANVASSED election documents, unauthentic, unreliable and
dubious on their faces which documents were submitted, not to the NBC, but to a mere Comelec
Department [ERSD]; instead of availing and relying on official CANVASS documents PROVINCIAL
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2003-29275 October 6, 2011
COCs submitted to COMELEC, as the National Board of Canvassers for Senators? Incomplete
canvass and therefore premature proclamation?
HELD/RATIO
The word sole in Section 17, Article VI of the 1987 Constitution and Rule 12 of the Revised
Rules of the Senate Electoral Tribunal underscores the exclusivity of the SETs jurisdiction over
election contests relating to members of the Senate. The authority conferred upon the SET is
categorical and complete. It is therefore clear that this Court has no jurisdiction to entertain
the instant petition. Since Barbers contests Biazons proclamation as the 12th winning
senatorial candidate, it is the SET which has exclusive jurisdiction to act on Barbers complaint
Citing Pangilinan v COMELEC: Where the candidate has already been proclaimed winner in
the congressional elections, the remedy of petitioner is to file an electoral protest with the
HRET. In like manner, where as in the present case, Barbers assails Biazons proclamation as
the 12th duly elected Senator, Barbers proper recourse is to file a regular election protest
with the SET.
Certiorari and prohibition will not lie in this case considering that there is an available and
adequate remedy in the ordinary course of law to annul the COMELECs assailed proceedings.
We take pains to emphasize that after the proclamation, Barbers should have filed an
electoral protest before the SET.
An incomplete canvass of votes is illegal and cannot be the basis of a subsequent
proclamation. A canvass is not reflective of the true vote of the electorate unless the board of
canvassers considers all returns and omits none. However,this is true only where the election
returns missing or not counted will affect the results of the election.
Statutory basis of COMELECs decision: OEC SEC. 233. When the election returns are delayed,
lost or destroyed. In case its copy of the election returns is missing, the board of canvassers
shall, by messenger or otherwise, obtain such missing election returns from the board of
election inspectors concerned, or if said returns have been lost or destroyed, the board of
canvassers, upon prior authority of the Commission, may use any of the authentic copies of
said election returns or certified copy of said election returns issued by the Commission, and
forthwith direct its representative to investigate the case and immediately report the matter
to the Commission.
The board of canvassers, notwithstanding the fact that not all the election returns have been
received by it, may terminate the canvass and proclaim
the candidates elected on the basis of the available election returns if the missing election
returns will not affect the results of the election. Resolution No. 6749 SEC. 9 Proclamation of
Results. - Upon completion of the canvass, the Supervisory Committee and the watchers if
available shall
certify the final printout of results as canvassed. On the basis of the certified final printout,
the NBC shall cause the preparation of, sign and approve the Certificate of Canvass and
Proclamation, and proclaim the winning candidates for senators, certify the results of the
election of the party-list system and proclaim the nominees of the parties which obtained the
required percentage of votes. Notwithstanding the fact that not all of the COCs have been
received or canvassed, the NBC may terminate the canvass if the missing COCs would no
longer affect the results of the elections.
Since the election returns not included in the national canvass as well as the results of the
special elections to be held would not materially affect the results of the elections, it is
immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
QUILALA V. COMELEC | Paras, 1990
FACTS
Petitioner Cirilo M. Quilala was the KBL candidate for Mayor in the Municipality of Currimao,
Ilocos Norte while private respondent Wilbur Go was the official administration candidate for
the same position in the January 18, 1988 elections.
Municipal Board of Canvassers of Currimao, Ilocos Norte completed its canvass of the election
returns in the afternoon of January 19, 1988, and immediately thereafter proclaimed the
winning candidates.
it appears that Wilbur C. Go received 2,594 votes for the Office of Mayor of the aforesaid
Municipality, the same being a plurality of the votes legally cast for the said office."
petitioner filed a petition with the respondent Commission on Elections, docketed as SPC No.
88214. on the allegation that petitioner was not represented in the canvassing of the election
returns, firstly, because the canvass was conducted only in the morning of January 19, 1988 in
gross and palpable violation of the provisions of the Omnibus Election Code which requires
the Board to immediately meet and canvass the election returns not later than six o'clock in
the afternoon of election day; Secondly because petitioner was not notified of the resetting of
the canvassing and the time, place and date when the same would take place; and thirdly,
because petitioner's representative was prevented from witnessing the canvass, by elements
of the Philippine Marines. Such absence of representation, petitioner claims can be gleaned
from the fact that the Certificate of Canvass of Votes and Proclamation for the municipality
does not contain the signature of the representative of the KBL.
petitioner prays for a declaration of nullity of the canvass and the proclamation of respondent
Wilbur Go and for an order directing the Board of Canvassers to conduct a proper canvass.
Commission on Elections (Second Division) issued its now assailed Decision dismissing SPC No.
88-214 and confirming the validity of the proceeding of the Board of Canvassers of Currimao,
Ilocos Norte.
petitioner came to Us on a petition for certiorari.
ISSUE
WON COMELEC erred in denying his petition
HELD/RATIO
NO. There is no necessity to send another notice to petitioner when the Board of Canvassers
recessed at 6:00 PM in the afternoon of January 18, 1988 because it was the responsibility of
petitioner or his watcher to verify when actual canvass of the returns were going to be made.
Indeed, the notice demanded by petitioner is not necessary because there was no subsequent
meeting of the Board of Canvassers to speak of. It merely recessed after it convened at 6:00 p.m.
on January 18, 1988 because there were no returns to canvass yet. However, it resumed its
proceedings as soon as the returns arrived.
It should be noted that the law requires the BOC to "meet continuously from day to day until
the canvass is completed and may adjourn but only for the purpose of awaiting the other
election returns from other polling places within its jurisdiction" and "as soon as the other
election returns are delivered, the board shall immediately resume canvassing until all the
returns have been canvassed" (231, OEC). The Board of Canvassers must complete their
canvass within thirty-six hours.
With or without notice, it was the duty of the petitioner and all candidates for that matter to
assign their watchers or representatives in the counting of votes and canvassing of ER in order
to insure the sanctity and purity of the ballots. It is a matter of judicial notice that the
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candidates, their representatives and watchers station or deploy themselves among the
various voting and canvassing centers to watch the proceedings from the first hour of voting
through the counting of votes in the voting centers until the completion of the canvassing of
election returns so that they can make of record in the minutes of the election committee and
canvassing board their objections remarks regarding the conduct of the proceedings.
The alleged defect in the notice is only one of form, not substance. Petitioner is making a big
issue of the discrepancy between the specific place in the Sangguniang Bayan stated in the
notice as the site of the canvassing and the place in the same building where the canvassing
was actually held, but does not explain why his watcher, with just a modicum of diligence and
resourcefulness, failed to find the place of the canvassing. The Sangguniang Bayan is not a
cavernous structure and canvass giving is not a very quiet affair.
Petitioner has also not shown that he suffered prejudice because of the failure of his watcher
to attend the canvassing. Had the watcher been present, what substantive issues would he
have raised? Petitioner does not disclose. Could it be that even if the watcher was present,
the result of the canvassing would have been the same?
TUGADE V. COMELEC | Sandoval-Guttierez, 2007
FACTS
Petitioner Eduard V. Tugade and private respondent Florencio P. Agustin were candidates for
the position of Punong Barangay of San Raymundo, Balungao, Pangasinan during the July 15,
2002 synchronized Barangay and Sangguniang Kabataan elections.
The result of the canvass showed that petitioner obtained 246 votes, while private
respondent garnered 245 votes, or a margin of only one (1) vote.
Barangay Board of Canvassers proclaimed petitioner as the elected Punong Barangay.
private respondent filed with the Municipal Trial Court (MTC) of Balungao, Pangasinan an
election protest, docketed as Election Protest Case No. 900. He questioned the results of the
votes cast and counted in Precinct No. 60-A/60-A-1.
MTC created a Revision Committee. Its report, based on the election returns and the tally
sheets, showed the following:
Florencio P. Agustin -119 Eduard V. Tugade -126 TOTAL-245
However, after the segregation and recount of the ballots contained in the sealed envelopes
for the candidates in the contested precincts, the following results were obtained:
Florencio P. Agustin -119 Eduard V. Tugade -125 Stray Ballots -11
TOTAL 255
Thereafter, the parties, through their Revisors, submitted their respective objections and
claims
MTC rendered its Decision declaring private respondent the duly elected Punong Barangay
private respondent filed a motion for execution of the MTC Decision pending appeal
petitioner, on September 4, 2002, filed a notice of appeal and an opposition to private
respondents motion for execution pending appeal
MTC issued an Order denying private respondents motion. In another Order of the same
date, the court ordered the transmittal of the complete records of the case to respondent
COMELEC
On appeal, the COMELEC (Second Division), on October 25, 2005, issued the assailed
Resolution declaring a tie between petitioner and private respondent
petitioner filed a motion for reconsideration with respondent COMELEC En Banc. petitioners
motion for reconsideration was denied
PROF. GISELLA N. DIZON-REYES
 194 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

Hence, the present petition based on the following ground: The questioned resolution dated
october 25, 2005 and the order dated january 5, 2006 of respondent commission, with due
respect, are not in accord with the law or with the applicable decisions of this honorable
Supreme Court.

ISSUE
WON COMELEC erred in declaring a tie.

HELD/RATIO
NO. This finding is a factual issue which is not a proper subject of petition for certiorari. Besides,
COMELECs order immediate implementation of the Resolution issued by its Second Division for the
drawing of lots of the herein parties was in accordance with law specifically 240 OEC. Sec. 240.
Election resulting in tie.
Whenever it shall appear from the canvass that two or more candidates have received an
equal and highest number of votes, or in cases where two or more candidates are to be
elected for the same position and two or more candidates received the same number of votes
for the last place in the number to be elected, the board of canvassers, after recording this
fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a
special public meeting at which the board of canvassers shall proceed to the drawing of lots of
the candidates who have tied and shall proclaim as elected the candidates who may be
favored by luck, and the candidates so proclaimed shall have the right to assume office in the
same manner as if he had been elected by plurality of vote. The board of canvassers shall
forthwith make a certificate stating the name of the candidate who had been favored by luck
and his proclamation on the basis thereof.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
N. Election Contests
SAMPAYAN V. DAZA | Romero, 1992
FACTS
February 18, 1992, petitioners, residents of the second Congressional District of Northern
Samar, filed the instant Petition for Prohibition seeking to disqualify respondent Raul Daza,
then incumbent congressman of the same congressional district, from continuing to exercise
the functions of his office, on the ground that the latter is a greencard holder and a lawful
permanent resident of the United States since October 16, 1974.
that Mr. Daza has not, by any act or declaration, renounced his status as permanent resident,
thereby violating Section 68 of Batas Pambansa Bilang 881 [Omnibus Election Code] and
Section 18, Article XI of the 1987 Constitution.
respondent Congressman Daza filed his comment denying the fact that he is a permanent
resident of the United States; that although he was accorded a permanent residency status on
October 8, 1980 an evidenced by a letter order of the District Director, US Immigration and
Naturalization Service, Los Angeles, U.S.A., he had long waived his status when he returned to
the Philippines on August 12, 1985.
ISSUE
WON Daza should be disqualified as a member of the HR for violation of S68 OEC.
HELD/RATIO
NO. Moot and academic for it is evident from the manifestation filed by petitioners dated April 6,
1992 that they seek to unseat Daza from his position as Congressman for the duration of his term
of office commencing June 30, 1987 and ending June 30, 1992.
Jurisdiction rightfully pertains to the HRET. Under S17 of Article VI of the 1987 Constitution, it
is the HRET which shall be the sole judge of all contests relating to the election, returns and
qualification of its members. Since petitioners challenge the qualifications of Congressman
Daza, the appropriate remedy should have been to file a
petition to cancel respondent Daza's certificate of candidacy before the election OR
quo warranto case with the HRET within 10 days after Daza's proclamation.
A writ of prohibition can no longer be issued against respondent since his term has already
expired. A writ or prohibition is not intended to provide for acts already consummated. As a
de facto public officer, respondent cannot be made to reimburse funds disbursed during his
term of office because his acts are as valid as those of a de jure officer. Moreover, as a de
facto officer, he is entitled to emoluments for actual services rendered.
RP V. DELA ROSA AND FRIVALDO | Quiason, 1994
FACTS
Juan Frivaldo seeks to be reelected as gov of Sorsogon. However, during Marcos regime, he
was compelled to seek asylum in the US and consequently lose Philippine citizenship for US
citizenship. Because of that circumstance, he filed a petition for naturalization in 91.
Hearing was set therefore but because of his intention to run, Frivaldo moved that the
hearing be set to an earlier date so he can comply with deadline for filing of CoC for 92
elections. Motion granted but order was not published nor a copy thereof posted. 6 days
later, Judge Dela Rosa readmitted him as citizen and allowed him to take oath of allegiance on
the same day.
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2003-29275 October 6, 2011 195
SolGen made timely appeal on the order admitting Frivaldo with the SC.
He won the 1992 election for governor, proclaimed May 22, 92. Lee, the losing candidate,
filed with COMELEC petition to annul the proclamation, June 1, 92. GROUNDS: (1)
proceedings and composition of the PBC were not in accordance with law; (2) Frivaldo is an
alien, whose grant of Philippine citizenship is being questioned by the State in G.R. No.
104654; and (3) Frivaldo is not a duly registered voter. PRAYER: [1] Votes cast in favor of
Frivaldo be considered as stray votes, and [2] on the basis of the remaining valid votes cast,
he be proclaimed winner.
COMELEC en banc: dismissed Lees petition, filed out of time. RATIO: S19 RA7166 provides
that the period to appeal a ruling of the BOC on questions affecting its composition or
proceedings was 3 days.
Lees argument before the SC: COMELEC acted with GAD when it ignored the fundamental
issue of Frivaldos disqualification in the guise of technicality. [1] American citizen may not be
duly registered voter [2] Filipino citizenship not conclusive in view of pending case
Lee also filed petition for mandamus for immediate resolution of SPA Case No. 92-016, a
petition for the cancellation of Frivaldos CoC.
Frivaldos answer: *1+ petitioner in that case (Lee was merely an intervenor), not being a
candidate for the same office for which he was aspiring, had no standing to file the petition;
(2) decision re-admitting him to Philippine citizenship was presumed to be valid; and (3) no
case had been filed to exclude his name as a registered voter.
COMELEC: Concedes that Frivaldo has not yet reacquired his Filipino citizenship because the
decision granting him the same is not yet final and executory. HOWEVER, [1] the issue of
disqualification of a candidate is not among the grounds allowed in a pre-proclamation
controversy, like SPC Case No. 92-273 (Lees case) and *2+ petition was filed out of time.
BESIDES, COMELEC deemed it abandoned upon Lees filing of a petition for quo warranto.
ISSUES
(1) WON Frivaldo was already a Filipino citizen.
(2) WON COMELEC correctly dismissed Lees petition to annul proclamation.
HELD/RATIO
(1) NO, the naturalization proceeding was tainted with irregularities.
(2) NO.
(1) COMELEC failed to resolve the more serious issue Frivaldos disqualification to be
proclaimed gov on grounds of lack of Filipino citizenship. In this aspect, the petition is one for
quo warranto.
(2) In another Frivaldo case, petition for quo warranto, questioning the respondents title and
seeking to prevent him from holding office as Governor for alienage, is not covered by the
ten-day period for appeal prescribed in S253 OEC. RATIO: Qualifications for public office are
continuing requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officers entire tenure; once any of the
required qualification is lost, his title may be seasonably challenged.
(3) Unseat=frustrate the will of electorate? NO. Both the LGC and Constitution require that only
Filipino citizens can run and be elected to public office. We can only surmise that the
electorate, at the time they voted for Frivaldo, was of the mistaken belief that he had legally
reacquired Filipino citizenship.
(4) Votes cast for Frivaldo be considered stray and that Lee (as 2nd placer) be declared winner?
NO. Citing Labo v COMELEC: Where the candidate who obtained the highest number of votes
PROF. GISELLA N. DIZON-REYES
 196 Ma. Jessa M. Alvarez 2003-29275
is later declared to be disqualified to hold the office to which he was elected, the candidate
who garnered the second highest number of votes is not entitled to be declared winner.
TAN V. COMELEC | Velasco, 2006
FACTS
Losing gubernatorial candidates Tan and Jikiri filed petition to declare failure of elections in
Sulu. GROUNDS: Systematic fraud, terrorism, illegal schemes, and machinations allegedly
perpetrated by private respondents and their supporters resulting in massive
disenfranchisement of voters substantiated by affidavits and photographs.
COMELEC 2nd Division: suspend the proclamation of the winning gov candidate of Sulu
(Loong), BUT lifted the suspension 3 days later
Even before petition to declare FOE, Tan filed 4 other petitions: 1 - before the MBC of Parang,
Sulu for the exclusion of ER from several precincts; 3 - before the Provincial Board of
Canvassers of Sulu to exclude certificates of canvass from Luuk, Panamao, and Parang
Boards concerned dismissed the 4 petitions so Tan went to COMELEC 1st Division: suspend
and refrain from proclaiming. HOWEVER, on the same day of 1st Divs order, Loong was
proclaimed and assumed office. Tan therefore file a Petition for Annulment of the
Proclamation with the COMELEC First Division. COMELEC 1st Div: granted annulment of
proclamation.
Jikiri filed before the COMELEC a Petition of Protest Ad Cautelam, PRAYER: recount or revision
of the ballots cast and the examination of election returns. Because of dismissal of petition to
declare FOE, Jikiri converted Petition of PAC into regular election protest.
COMELEC en banc: No FOE. 3 instances in Carlos v Angeles not present i.e. (1) the election is
not held, (2) the election is suspended, or (3) the election results in a failure to elect.
HOWEVER, Sadains dissent was not included in majority decision but issued 36 days later ->
main point: failure of election due to lack of/insufficient notice of change of date and venue
(citing Hassan and Basher ruling).
Loongs defense: Filed MTD on ground of lack of COMELECs jurisdiction because it was a
protest filed out of time.
COMELEC First Div: denied Loongs MTD RATIO: There were still pending pre-proclamation
cases before it, the result of which could affect Loongs motion. It did not matter that these
pre-proclamation cases were not filed by Jikiri but by another candidate, Tan, as S248 OEC
does not require that the petition to annul or suspend the proclamation be filed by the
protestant. These pending pre- proclamation cases would not prevent respondent Jikiri from
converting his protest ad cautelam into a regular one, and which fact would not preclude the
Commission from deciding the election protest case. After all, the COMELEC First Division
noted that pre- proclamation controversies and election protest cases have different causes
of action, and thus, could proceed independently.
ISSUES
(1) WON the appeal was filed on time.
(2) WON COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction,
in dismissing the (4) Petitions for Declaration of Failure of Elections in the towns of Maimbung,
Luuk, Tongkil, and Panamao.
(3) WON the proclamation of the respondents, albeit patently null and void, bars the filing of the
instant petitions for declaration of failure of elections.
(4) WON the COMELEC has jurisdiction to entertain electoral protests filed beyond ten (10) days
after the proclamation of the results of an election for a given provincial office.
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October 6, 2011
(5) WON the COMELEC has jurisdiction to entertain simultaneously pre-proclamation controversies
and electoral protests.
HELD/RATIO
NO.
NO, no failure of elections.
NO, moot.
YES, it was filed on time.
YES.
Preliminary procedural issue: WON a separate dissenting opinion in an election case before
the COMELEC is a part or component of a resolution or decision? NO. With the required
majority vote, the majority opinion embodied in a decision or resolution duly promulgated is
validly rendered and issued despite dissent or inhibition of the minority, and even if the
reason for the diss ent or inhibition is submitted much later than its promulgation. The
dissenting opinion, which is only Commissioner Sadains view, is not essential to nor does it
affect the ruling of the COMELEC en banc. Separate opinions not approved by the required
majority of the court members, whether they be concurring or dissenting opinions, must be
distinguished from the opinion of the court.
Tan and Jikiris petitions were filed out of time. Reckon 30 days reglementary period from
issuance of joint resolution, not dissent.
No disenfranchisement of voters. Petitioners did not raise the alleged abrupt change of
polling place as an issue, they merely adopted on appeal Sadains theory. Even granting
arguendo that the issue of the alleged change and transfer of polling places was raised before
the COMELEC, it would still not justify a declaration of failure of election in the subject
municipalities as it was duly disseminated.
COMELEC correctly dismissed the Petitions for Declaration of Failure of Election since the
electoral anomalies alleged in the petitions hould have been raised in an election protest, not
in a petition to declare a failure of election.
Reiteration of the 3 instances resulting to failure to elect in the Code. And the conditions
before the COMELEC can act on a verified petition seeking to declare a failure of election laid
down in Banaga v COMELEC i.e. (1) no voting took place in the precinct or precincts on the
date fixed by law, or even if there was voting, the election resulted in a failure to elect; and
(2) the votes not cast would have affected the result of the election. Note that the cause of
such failure of election could only be any of the following: force majeure, violence, terrorism,
fraud or other analogous causes.
Distinction between electoral protests filed under Sections 248 (PPC) and 258 (Electoral Contests)
of the OEC
Loongs position: Concedes the original jurisdiction of COMELEC over election protests
involving provincial officials, among others, he excepts, at the first instance, to its assumption
of jurisdiction over such contest which, to him, was filed after the reglementary period. Citing
S250 OEC: Election contests for Batasang Pambansa, regional, provincial and city offices. A
sworn petition contesting the election of ... any regional, provincial or city official shall be filed
with the Commission by any candidate who has duly filed a certificate of candidacy and has
been voted for the same office, within ten days after the proclamation of the results of the
election.
SC says: Petitioners basic posture may be accorded plausibility, except that it glossed over a
statutory provision which, in the light of certain proceedings as thus narrated, militates
against his stance. Under S248 OEC, filing of certain petitions works to stop the running of the
reglementary period to file an election protest
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
SECTION 248. Effect of filing petition to annul or to suspend the proclamation. The filing
with the Commission of a petition to annul or to suspend the proclamation of any candidate
shall SUSPEND the running of the period within which to file an election protest or quo
warranto proceedings.
S248 contemplates 2 points of reference: [1] pre- and [2] post-proclamation, under which
either of the petitions referred to therein is filed. Before the proclamation, what ought to be
filed is a petition to suspend or stop an impending proclamation. After the proclamation,
an adverse party should file a petition to annul or undo a proclamation made.
Pre-proclamation controversies partake of the nature of petitions to suspend. The PURPOSE
for allowing pre-proclamation controversies, the filing of which is covered by the aforequoted
S248 OEC, is to nip in the bud the occurrence of what, in election practice, is referred to as
grab the proclamation and prolong the protest situation.
Correlating the petitions mentioned in S248 with the 10-day period set forth in the
succeeding S250, a petition to suspend tolls the 10-day period for filing an election protest
from running, a petition to annul interrupts the running of the period.
In other words: in a S248 petition to suspend where the 10-day period did not start to run at
all, the filing of a S250 election contest after the 10th day from proclamation is not late. in a
S248 petition to annul, the party seeking annulment must file the petition before the
expiration of the 10-day period.
The filing of the election protest ad cautelam on July 19, 2004 or fifty-six (56) days after the
May 24, 2004 proclamation was contextually on time. This is because the 10-day
reglementary period to file such protestwhich ordinarily would have expired on June 3,
2004did not start to run at all. It cannot be over-emphasized that the pre-proclamation
controversies Abdusakur Tan initiated right after the May 10, 2004 elections, that is, SPC Nos.
04-163, 04-164, and 04-165, were only resolved on March 18, 2005.
There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-
proclamation controversies and elections protests. Allowing the simultaneous prosecution
scenario may be explained by the fact that pre-proclamation controversies and election
protests differ in terms of the issues involved and the evidence admissible in each case and
the objective each seeks to achieve. Under certain circumstances, SC even encourages the
reinforcement of a pre-proclamation suit with an election protest.
Citing Matalam v. Commission on Elections: The Court agonized over its inability to fully look
into the election irregularities alleged by petitioner, due to the very limited scope of pre-
proclamation controversy. Thus, the Court reminds lawyers handling election cases to make a
careful choice of remedies. Where it becomes apparent that a pre-proclamation suit is
inadequate, they should immediately choose another timely remedy, like a petition to annul
the election results or to declare a failure of elections or even an election protest, so that
election irregularities may be fully ventilated and properly adjudicated by the competent
tribunal.
ROQUERO V. COMELEC | Kapunan, 1998
FACTS
Roquero v Villano for Mayor of San Jose del Monte, Bulacan. COMELEC issued an order
directing the Municipal Board of Canvassers (MBC) to reconvene, prepare the certificate of
canvass and proclaim the winning candidates Roquero won. Villano filed MR of the order with
COMELEC but the same was denied.
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2003-29275 October 6, 2011 197
After denial of MR, Villano filed election protest before RTC. Roquero filed MTD because
petition [1] did not allege facts constituting a cause of action for an election protest and [2]
election protest was filed beyond the 10-day reglementary period for filing the same.
Judge denied MTD and issued order directing the parties to nominate their respective reps on
the Committee on Revision.
COMELEC said filed on time because it merely reckoned the 10-day period from May 7, 1996
(which was the receipt by Villano of this Courts resolution denying his MR of the resolution
dismissing his petition) to May 17, 1996 when he filed his election protest. In computing the
10-day period, the COMELEC did not consider the running of the period from the date of
proclamation of the Roquero to the date the pleading was filed with the COMELEC to annul or
suspend the proclamation; and from the time private respondent received the ruling of the
COMELEC denying, to the time he filed the petition before this Court questioning the
COMELECs ruling
ISSUE
WON the election protest filed by private respondent Villano filed on time.
HELD/RATIO
NO. SEC. 251. Election contests for municipal offices.- A sworn petition contesting the election of a
municipal officer shall be filed with the proper RTC by any candidate who has duly filed a CoC and
has been voted for the same office, within 10 days after proclamation of the results of the election.
Roquero was proclaimed by the MBC as the duly elected mayor. 5 days later, Villano filed with
COMELEC a pre-proclamation MR assailing the latters order directing the MBC to proclaim
petitioner Roquero as the winning candidate for the mayoralty of the said municipality.
Consequently, only 5 days of the 10 day reglementary period to file an election protest
remained.
Section 248 of the same Election Code is clear and provides thusly: Sec. 248. Effect of filing
petition to annul or to suspend the proclamation. - The filing with the Commission of a
petition to annul or to suspend the proclamation of any candidate shall suspend the running
of the period within which to file an election protest or quo warranto proceedings.
Applying the above provision to the instant case, the 10 day reglementary period was
suspended during the pendency of the pre-proclamation case in the COMELEC and in this
Court, until Villano received a copy of this Courts Resolution dated April 16, 1996 denying his
MR on May 7, 1996. Verily, on May 7, 1996, the five-day remainder of the reglementary
period to file an election protest resumed to run again and expired on May 12, 1996. Private
respondent Villano therefore belatedly filed his election protest on May 17, 1996, 5 days after
the deadline for filing the same.
The rule prescribing the ten-day period is mandatory and jurisdictional, and the filing of an
election protest beyond the period deprives the court of jurisdiction over the protest.
Violation of this rule should not be taken lightly nor should it be brushed aside as a mere
procedural lapse that can be overlooked. The rule is not a mere technicality but an essential
requirement, the non-compliance of which would oust the court of jurisdiction over the case.
Citing Lim vs. COMELEC and Kho vs. COMELEC: A counterprotest must be filed within the
period provided by law, otherwise, the court acquires no jurisdiction to entertain it.
If the docket fees are not fully paid on time, even if the election protest is timely filed, court is
deprived of jurisdiction over the case.
Villano should have filed his election protest on September 16, 1995, 5 days after he received
a copy of the COMELEC resolution denying his MR on September 11, 1995? The running of the
reglementary period to file an election protest is tolled by a partys elevation to the SC of a
PROF. GISELLA N. DIZON-REYES
 198 Ma. Jessa M. Alvarez
COMELEC decision or resolution of a pre-proclamation case. The appeal by certiorari to this
Court is part of an entire proceeding. The case is not terminated until this Court has
rendered judgment. Consequently, the computation of the ten-day period, OR the
remainder of said period for filing an election contest, as in this case, does not commence to
run until this Court hands down its verdict.
DAGLOC V. COMELEC | Mendoza, 1999
FACTS
Ambolodto v Samad for mayor of Kabuntalan, Maguindanao. Samad won. Ambolodto filed
with COMELEC petition to declare a FOE and/ or annul the election results in the Municipality
of kabuntalan, first district of maguindanao. Also, on June 19, 1998, she filed with RTC an
election protest ex abundante cautelam. Ambolodte moved to withdraw in the COMELEC in
order to prosecute her Election Protest in the RTC. COMELEC granted her motion.
Samads answer in the electoral protest: MTD, filed more than 10 days from the date of
proclamation. TC denied MTD.
Samad filed with COMELEC petition for certiorari on the order of dismissal. However, he died
during pendency so Dagloc took over. COMELEC en banc dismissed for lack of merit. RATIO:
While SPA No. 98-356 filed by Samad was denominated as petition to declare a failure of
election and/or to annul the ER, the case was actually a petition for annulment of
proclamation which, under 248 OEC, suspended the running of the period for filing an
election protest. Ergo, filing of Election Protest in the RTC was timely as SPA No. 98- 356, filed
one day before the lapse of the period for filing an election protest, prevented the expiration
of said period. Hence, cert.
Daglocs argument: *1+ What is contemplated in 248 OEC is the filing of a PPC praying for
annulment or suspension of proclamation [2] Authority of COMELEC Commissioner Abdul
Gani M. Marohombsar who signed the COMELEC resolution in question on June 29, 1999,
when his term had already expired on June 4, 1999
Ambolodtos defense: *1+ 248 OEC is not limited to the filing of a PPC but includes as well a
petition for a declaration of the FOE. For so long as there is a prayer for the annulment of a
proclamation in a petition filed with the COMELEC and within the COMELECs jurisdiction, the
filing thereof suspends the running of the 10-day period to file an election protest or quo
warranto proceedings. Even the filing of a petition for disqualification praying for the
annulment of proclamation on the ground of ineligibility would suspend the running of the
period to file an electoral protest. [2] Petition in SPR No. 37-98 filed by petitioners
predecessor should have been dismissed by the COMELEC since it is actually based on the
denial by the RTC of a MTD an election protest, which motion is a prohibited pleading under
Rule 13, 1 of the COMELEC Rules of Procedure.
ISSUE
WON RTC erred in not dismissing the election protest on ground that (petition for a declaration of a
FOE and for the annulment of ER suspended the running of the reglementary period for filing an
election protest). NO
To determine Ambolodtos seasonable filing of election protest, WON 248 OEC applies only to the
filing of a pre-proclamation controversy. YES, Ambolodtos election protest was therefore filed out
of time.
HELD/RATIO
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S248 OEC. Effect of filing petition to annul or to suspend the proclamation. - The filing with the
COMELEC of a petition to annul OR to suspend the proclamation of any candidate shall suspend
the running of the period within which to file an election protest OR quo warranto proceedings.
- There is no question that the above provision covers the filing of pre-proclamation
controversies. 242 OEC. Commissions exclusive jurisdiction of all pre-proclamation
controversies. The COMELEC shall have exclusive jurisdiction of all PPC. It may motu proprio
OR upon written petition, and after due notice and hearing, order the partial or total
suspension of the proclamation of any candidate-elect OR annul partially or totally any
proclamation, if one has been made, as the evidence shall warrant in accordance with the
succeeding .
REASON: Unless the proclamation of a winning candidate is suspended or, if it has been held,
set aside, the policy behind the allowance of PPC, i.e., to prevent losing candidates from
grabbing the proclamation and delaying the resolution of the electoral contest, will be
defeated. Citing Esquivel v. Commission on Elections: The 10-day period for filing an election
protest under 289 of the former OEC was suspended by the filing of a petition for annulment
of proclamation.
The suspension of the 10-day statutory period for the filing of an election protest until such
time as the COMELEC has finally decided the pending pre-proclamation controversy is but
logical and just, since if the protestant prevails in the pre-proclamation controversy, there
would be no further need for him to file a regular election protest.
Citing Abalos v Domingo: Court deemed suspended the 10-day statutory period for the filing of
an election protest during the pendency of a pre-proclamation controversy.
The filing of pre-proclamation controversies under 248 OEC, is not the only ground for the
suspension of proclamation. Two other instances are provided in RA 6646, known as The
Electoral Reforms Law of 1987, viz.: (1) 6: the COMELEC may, upon motion of the
complainant in an action for disqualification, suspend the proclamation of the winning
candidate if the evidence of his guilt is strong, and (2) 7: the COMELEC may likewise suspend
the proclamation of the winning candidate if there is ground for denying or canceling his
certificate of candidacy. SEC 6, Effect of Disqualification Case.
Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong.
SEC 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. - The procedure
hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of
candidacy as provided in S78 OEC.
These actions are in the nature of pre-proclamation controversies and, therefore, like pre-
proclamation contests, their filing is a ground for the suspension of proclamation and,
consequently, of the period for filing either an election protest or a petition for quo warranto.
SPA No. 98-356 is not a pre-proclamation controversy. Much less is it a petition for
disqualification or for the denial or cancelation of a certificate of candidacy. Indeed, private
respondent does not claim that her petition raises pre-proclamation issues. She frankly admits
that SPA No. 98-356 is a petition filed under 6 of the Omnibus Election Code for a declaration
of failure of election.
Citing Matalam v COMELEC: An action for a declaration of the FOE is not in the nature of a pre-
proclamation controversy.
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
Distinction between FOE and PPC as discussed in Loong v COMELEC: While, however, the
COMELEC is restricted, in pre-proclamation cases, to an examination of the ER on their face and
is without jurisdiction to go beyond or behind them and investigate election irregularities, the
COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other
analogous causes in actions for annulment of election results or for declaration of failure of
elections, as the OEC denominates the same. Thus, the COMELEC, in the case of actions for
annulment of ER or declaration of FOE, may conduct technical examination of election
documents and compare and analyze voters signatures and fingerprints in order to determine
WON the elections had indeed been free, honest and clean. Needless to say, a pre-
proclamation controversy is not the same as an action for annulment of ER or declaration of
FOE.
As long as there is a prayer for the annulment of a proclamation, the filing of such petition
effectively suspends the running of the period for filing an election protest? Not all actions
seeking the annulment of proclamation suspend the running of the period for filing an election
protest or a petition for quo warranto. For it is not the relief prayed for which distinguishes
actions under 248 from an election protest OR quo warranto proceedings, but the grounds on
which they are based.
Purpose for allowing pre-proclamation controversies is to put a stop to the pernicious practice
of unscrupulous candidates of grabbing the proclamation and prolonging the protest.
Accordingly, grounds which are proper for electoral protests should NOT be allowed to delay
the proclamation of the winners.
ROCES V. HRET | Puno, 2005
FACTS
Roces v Ang Ping for Representative for the 3rd Congressional District of Manila. Alejandro
Gomez, a registered voter of Manila questioned Ang Pings candidacy before the COMELEC
through a petition to deny due course or cancel his COC.
Garci for COMELEC 1st Div: Issued an order on April 30, 2004 scheduling the promulgation of
its resolution on May 5, 2004.
Two days before the scheduled promulgation, Mr. Ang Ping filed with the COMELEC a Sworn
Declaration of Withdrawal of his COC. The next day, Ang Pings party sought the substitution
of Ang Pings wife. On even date, Mr. Ang Ping also filed a motion to cancel the scheduled
promulgation and dismiss the petition to deny due course or cancel his COC.
On May 5, 2004, Commissioner Resurreccion Z. Borra deferred the promulgation for lack of
quorum as he was the sole Commissioner in attendance. Ultimately, COMELEC 1st Div granted
the petition to deny due course to Mr. Ang Pings COC and ordered the BEI not to count any
vote cast in his favor and denied Ang Pings MTD despite the deferment of the promulgation
by Commissioner Borra.
COMELEC en banc declared moot Mr. Ang Pings Affidavit of Withdrawal, denied due course
to the substitute COC of Mrs. Ang Ping and order the Regional Election Director to delete Mr.
Ang Pings name from the certified list of candidates.
On the election day itself, the Manila City BOC resolved not to canvass the votes for Mr. or
Mrs. Ang Ping citing COMELEC Resolution No. 6823. After counting only 6,347 votes out of the
150,387 registered voters in the district, it proclaimed Roces winner.
Spouses Ang Ping appealed the Board resolution to the COMELEC en banc and filed a petition
to annul the proclamation, COMELEC dismissed by COMELECs Resolution No. 7257 and
Omnibus Order of July 6, 2004. - Mrs. Ang Ping filed an Election Protest Ad Cautelam
with the HRET. GROUND: *1+ glaring case of deprivation of Mr. and Mrs. Ang Pings right to
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2003-29275 October 6, 2011 199
elevate SPC 04-224 to the Commission en banc and *2+ COMELECs April 30, 2004 resolution
was irregularly promulgated. Roces answer: HRET has no jurisdiction over the case.
After dismissal of certiorari for TRO, Ang Ping filed in the HRET a motion to convert the ad
cautelam protest to a regular protest
Roces filed a motion to dismiss the protest, assailing in the main the personality of Mrs. Ang
Ping to file the protest.
HRET denied MTD and Mrs. Ang Ping had personality because: [1] no final COMELEC
resolution disqualifying or denying due course to the COC of Mr. Ang Ping, thus her
substitution for the latter was legally permissible under OEC [2] she was one of the candidates
voted for during election day in the 3rd District of Manila [3] the COMELEC Order of May 5,
2004 was of questionable validity for the reason that: [a] it was issued in violation of its April
30, 2004 resolution setting the promulgation for May 5, 2004 and despite the fact that the
records had not yet reached the COMELEC en banc; [b] there was no prior notice and hearing
in violation of S78 OEC
Hence, Roces petition for certiorari
ISSUE
WON HRET erred in not granting Roces MTD.
HELD/RATIO
NO. As the sole judge of all election contests, returns and qualifications of HR members, HRET has
the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to
parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of
which is necessary to determine the question of jurisdiction. One of the three essential elements of
jurisdiction is that proper parties must be present. Consequently, HRET merely exercised its
exclusive jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of
Roces.
Promulgation is important because it determines when the reglementary period begins to
toll. In the case at bar, Garci fixed the promulgation of its resolution whether to give due
course to the candidacy of Mr. Ang Ping on May 5, 2004. But for mysterious reasons, the
COMELEC 1st Division did not promulgate the resolution on May 5, 2004 in accordance with
its notice of promulgation. In violation of the abovecited rule, and despite the deferment of
the promulgation by Commissioner Borra to a date to be set by the COMELEC First Division,
the resolution was deemed promulgated by the COMELEC on April 30, 2004 when it was
filed with the clerk of court. The April 30, 2004 COMELEC resolution was received by Mr. Ang
Pings counsel only on May 8, 2004.
The mysterious April 30, 2004 resolution was thereafter used to run roughshod over the
rights of the Ang Pings. Thus, on May 5, 2004, the COMELEC 1st Division denied Mr. Ang
Pings motion to dismiss. Allegedly, Mr. Ang Pings motion was filed after the April 30, 2004
resolution.
Effect of COMELEC en banc Resolution No. 6823 was to execute the April 30, 2004 resolution
of its First Division which, at that time, had not yet become final and executory. These
irregularities cannot be swept away by the belated COMELEC en bancs April 28, 2005
resolution denying Mr. Ang Pings motion for reconsideration dated May 10, 2004.
COMELECs resolutions are void ab initio for violating Mrs. Ang Pings constitutional right to
due process. Judgments entered in a proceeding failing to comply with procedural due
process are void, as is one entered by a court acting in a manner inconsistent with due
process.
PROF. GISELLA N. DIZON-REYES
 200 Ma. Jessa M. Alvarez
GATCHALIAN V. CA | Quiason, 1995
FACTS
Gatchalian v Aruelo for VMayor of Balagtas, Bulacan. Gatchalian won by 4 votes. Aruelo filed
with COMELEC petition to annul the proclamation of Gatchalian and with RTC election
protest. In said election protest, Aruelo alleged that the protest was filed ex abundante
cautela, there being a pending pre-proclamation case with the COMELEC. It likewise
contained a claim for damages in the amount of P100,000.00 by way of attorney's fees. On
the same date, Aruelo paid the amount of P610.00 as filing fees.
Gatchalian filed MTD. GROUNDS: (a) the petition was filed out of time; (b) there was a
pending pre-proclamation case before the COMELEC, and hence the protest was premature;
and (c) Aruelo failed to pay the prescribed filing fees and cash deposit upon filing of the
petition.
COMELEC denied Aruelos pre-proclamation case. TC and CA denied Gatchalians MTD. Hence,
this petition.
Gatchalians argument: Election protest was filed only on June 2, 1992 or 19 days after his
proclamation in violation of Section 3, Rule 35 of the COMELEC Rules of Procedure. i.e. Period
to file petition. The petition shall be filed within ten (10) days following the date of
proclamation of the results of the election.
ISSUE
WON lower courts erred in not dismissing the election protest: [1] for being filed out of time? NO
[2] failure to pay of correct docket fees. YES.
HELD/RATIO
Under the above-cited section, Aruelo had 10 days from May 13, 1992 to file an election
protest. Instead of filing an election protest, Aruelo filed with the COMELEC a pre-
proclamation case against Gatchalian on May 22, 1992, or nine days after May 13, 1992. The
filing of the pre-proclamation case suspended the running of the period within which to file
an election protest or quo warranto proceedings (S248, OEC). Aruelo received the COMELEC
resolution denying his pre-proclamation petition on June 22, 1992. Hence, Aruelo had only 1
day left after June 22, 1992 within which to file an election protest. However, it will be noted
that Aruelo filed on June 2, 1992 with the trial court an election protest ex abundante cautela.
It is the payment of the filing fee that vests jurisdiction of the court over the election protest,
not the payment of the docket fees for the claim of damages and attorney's fees. For failure
to pay the filing fee prescribed under Section 9, Rule 35 of the COMELEC Rules of Procedure,
the election protest must be dismissed. Under Section 9, Rule 35 of the COMELEC Rules of
Procedure, "[n]o protest . . . shall be given due course without the payment of a filing fee in
the amount of three hundred pesos (P300.00) for each interest.
Citing Pahilan v Tabalba: In the case now before us, and in election cases in general, it is not
the amount of damages, if any, that is sought to be recovered which vests in the courts the
jurisdiction to try the same. Rather, it is the nature of the action which is determinative of
jurisdiction.
PAHILAN V. TABALBA | Regalado, 1994
FACTS
Pahilan v Tabalba for Mayor of Guinsiliban, Camiguin. Tabalba won. Pahilan filed an election
protest which he sent by registered mail on May 23, 1992, addressed to the Clerk of Court of
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2003-29275 October 6, 2011
the RTC of Mambajao, Camiguin, attaching thereto P200.00 in cash as payment for docket
fees. HOWEVER, Pahilan was informed through a letter from the OIC-Clerk of Court of the RTC
that the correct fees that were supposed to be paid amounted to P620.00, and that,
accordingly, the petition would not be entered in the court docket and summons would not
be issued pending payment of the balance of P420.00.
Tabalbas answer with counterclaim: Lack of jurisdiction on the part of the trial court to
entertain the election protest for having been filed beyond the 10-day period provided by
law; lack of jurisdiction for non-payment of correct docket fees.
TC dismissed. Within the 5-day period to appeal, Pahilan filed a verified appeal brief in
COMELEC, with copies duly served on the RTC of Mambajao, Camiguin and the counsel for
herein private respondent. But COMELEC dismissed because no notice of appeal with RTC.
ISSUE
(1) WON COMELEC validly dismissed the verified "Appeal" of petitioner which contains all the
elements of a "notice of appeal" and more expressive of the intent to elevate the case for review
by said appellate body, and furnishing copies thereof to the respondent trial judge and counsel for
the adverse party, aside from the incomplete payment of the appeal fee; and
(2) WON the respondent trial judge validly dismissed the petition of protest of petitioner for non-
payment on time of the required fee.
HELD/RATIO
NO, COMELEC should have given it due course to the appeal.
In cases where a record on appeal is required under the Rules of Court, it has been
consistently held that the filing or presentation and approval of the record on appeal on time
necessarily implies or involves the filing of the notice of appeal, because the act of taking or
perfecting an appeal is more expressive of the intention to appeal than the filing of a mere
notice to do so.
If the courts can deign to be indulgent and lenient in the interpretation of the rules respecting
ordinary civil actions involving private parties representing private interests, with more
reason should the rules involving election cases, which are undoubtedly impressed with
public interest, be construed with the same or even greater forbearance and liberality.
Statutes providing for election contests are to be liberally construed to the end that the will of
the people in the choice of public officers may not be defeated by mere technical objections.
An election contest, unlike an ordinary action, is imbued with public interest since it involves
not only the adjudication of the private interests of rival candidates but also the paramount
need of dispelling the uncertainty which beclouds the real choice of the electorate with
respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is
neither fair nor just to keep in office for an uncertain period one whose right to it is under
suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the
winner but for the sake of public interest, which can only be achieved by brushing aside
technicalities of procedure with protract and delay the trial of an ordinary action.
Public interest is of far greater importance than the justifications of substantial justice and
equity in seeking an exception to the general rule. Hence, election cases, by their very nature,
should and ought to merit a similar exemption from a strict application of technical rules of
procedure.
The particulars which ought to be reflected in the notice of appeal have been specifically and
categorically spelled out in the appeal brief of petitioner. Anent dismissal of election protest
by the RTC for non-payment, or more accurately, the incomplete payment of docket fees
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez 2003-29275 October 6, 2011 201

Malimit v Degamo is not on all fours. In the case now before us, and in election cases in
general, it is not the amount of damages, if any, that is sought to be recovered which vests in ISSUE
the courts the jurisdiction to try the same. Rather, it is the nature of the action which is WON Judge was guilty of gross ignorance of law?
determinative of jurisdiction. Thus, regardless of the amount of damages claimed, the action
will still have to be filed with the RTC. In such a case, the evil sought to be avoided in HELD/RATIO
Manchester and like cases will never arise. Peremptorily, there will be no occasion to apply YES, he ignored applicable pronouncements by this Court on the matter of payment of docketing
the rulings in the cases mentioned. In addition, the filing fee to be paid in an election case is a fees.
fixed amount of P300. There will consequently be no opportunity for a situation to arise Citing Pahilan v Tabala: There are strong and compelling reasons to rule that the doctrine we
wherein an election contest will have to be dismissed for failure to state the exact amount of have established in Manchester and cases subsequent thereto cannot be made to apply to
damages and thus evince an intent to deprive the Government of the docket fees due. election cases. As we have earlier stated, the cases cited are ordinary civil actions whereas
In Manchester, there was a deliberate attempt on the part of the plaintiffs therein to evade election cases are not. The rules which apply to ordinary civil actions may not necessarily
payment of the correct docket fees. In the case of petitioner, he already explained, and this serve the purpose of election cases, especially if we consider the fact that election laws are to
we find acceptable and justified, that "since the schedule of the new rates of court fees was be accorded utmost liberality in their interpretation and application, bearing in mind always
not then available and the filing of the petition for election contests was done thru the mails, that the will of the people must be upheld. Ordinary civil actions would generally involve
the old rates readily came to mind, and this was the reason why only two hundred pesos was private interests while all election cases are, at all times, invested with public interest which
remitted at the same time with the petition." cannot be defeated by mere procedural or technical infirmities.
The evil sought to be avoided in Manchester and similar cases can never obtain in election The conclusion arrived at by him that there was deliberate non-payment of the correct
cases since (1) the filing fee in an election cases is fixed and not dependent on the amount of docketing fees was belied by the fact that as early as August 16, 1995, Judge Salva, who was
damages sought to be recovered, if any; and (2) a claim for damages in an election case is then acting on the case before he inhibited therefrom, had already issued an o rder for the
merely ancillary to the main cause of action and is not even determinative of the court's release of the P30,000.00 deposit of complainant to be paid to the revisors and stenographer.
jurisdiction which is governed by the nature of the election filed. In the same order, the balance of P15,000.00 was to be refunded to the protestant. Verily,
there was no reason to accuse the latter of deliberate non-payment of docketing fees since
ENOJAS V. GACOTT | Purisima, 2000 the amount totaling P2,572.90 of which the government was supposed to have been
shortchanged could have been deducted easily from the refundable amount which was still
FACTS within the control of the court. Besides, one of the reasons for Judge Salvas decision to start
Enojas v Rodriguez for mayor of the Municipality of Roxas, Palawan. Enojas lost by 48 votes to the revision of ballots was complainants showing that the required fees and deposits had
Rodriguez so he filed an election protest before RTC of Puerto Princesa presided over by been remitted. On this basis alone, the dismissal of the case by respondent judge cannot be
Judge Salva on the grounds of massive fraud and irregularities. PRAYER: revision of ballots in perceived as anything but inappropriate or improper .
102 precincts.
Rodriguez filed MTD but was denied because the 102 ballot boxes, election documents and
book of voters were already delivered to and deposited with the TC, at the time and the
required fees and deposits therefor remitted by the protestant. Judge Salva ordered the
revision of ballots to proceed. 39 ballots were revised before Judge Salva inhibited himself
from trying the case on the ground that the protestee, Jose R. Rodriguez, is related by
consanguinity to his wife. Case was then reraffled to Judge Gacott.
Judge Gacott Jr. issued an order granting protestees motion for leave to file an amended
answer. Protestee submitted the corresponding amended answer accompanied by a pre-trial
brief. Amended Answer contained new matters not appearing in the original answer, and
affecting the merits of the controversy, in violation of Section 8 of COMELEC Rule 35. The
following day, complainant submitted his opposition thereto. GROUND pleadings merely
tended to delay the disposition of the election protest.
Gacott dismissed election case due to the deliberate non-payment by the protestant of the
required or correct fee.
Defense: Administrative complaint filed by Enojas is an exaggeration concocted by Atty.
Pimentel, lawyer of the protestant, who was scolded and reprimanded by him (respondent
judge) who got irked at his (Pimentel) grandstanding during court sessions. Gacott described
Atty. Pimentel as an old but disrespectful and arrogant lawyer although he does not bear him
ill will, hatred and rancor.
OCA recommended fine for gross ignorance of law.

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 202 Ma. Jessa M. Alvarez
GARCIA V. HRET | Ynares-Santiago, 1999
FACTS
Within the 10 day period from respondent Harry Angpings proclamation as duly elected
Representative for the 3rd District of Manila, petitioners, all duly registered voters in the
district, filed a petition for quo warranto before HRET against Congressman Angping.
GROUND: eligibility of Angping to hold office in the HRR when he was not a natural-born
citizen of the Philippines, a constitutional requirement. PRAYER: Angping be declared
ineligible to assume or hold office as member of the HR and for the candidate who received
the highest number of votes from among the qualified candidates to be proclaimed the
winner.
Upon filing of the their petition, petitioners duly paid the required P5,000.00 filing fee.
But HRET dismissed the petition for quo warranto for failure to pay the P5,000 cash deposit
required by its Rules.
After receiving a copy of the aforesaid Resolution, petitioners paid the P5,000.00 cash deposit
pand attached the corresponding receipt to the MR they filed with the HRET on the same day.
MR denied in view of Rule 32 of the 1998 HRET Rules which required a P5,000.00 cash deposit
in addition to filing fees for quo warranto cases. Hence, this petition.
ISSUE
WON a petition for quo warranto before the HRET be summarily dismissed for failure to pay cash
deposit, notwithstanding that petitioner rectified payment thereof.
HELD/RATIO
YES. Pertinent provisions involved:
RULE 32. Cash Deposit. - In addition to the fees prescribed in the preceding Rule, each protestant,
counter-protestant or petitioner in quo warranto shall make a cash deposit with the Tribunal in the
following amounts:
(1) in a petition for quo warranto, Five Thousand (P5,000.00) Pesos; (2) if the protest or counter-
protest does not require the bringing to the Tribunal of ballot boxes and other election documents
and paraphernalia from the district concerned, Five Thousand (P5,000.00) Pesos; (3) if the protest
or counter-protest requires the bringing of ballot boxes and other election documents and
paraphernalia, Five Hundred (P500.00) Pesos for each precinct involved therein; Provided, that in
no case shall the deposit be less than Ten Thousand (P10,000.00)Pesos; (4) if, as thus computed,
the amount of the deposit does not exceed Seventy Five Thousand (P75,000.00) Pesos, the same
shall be made in full with the Tribunal within ten (10) days after filing of the protest or counter-
protest; (5) if the deposit exceeds Seventy Five Thousand (P75,000.00) Pesos, partial deposit of at
least Seventy Five Thousand (P75,000.00) Pesos shall be made within ten (10) days after the filing
of the protest or counter-protest. The balance shall be paid in such installments as may be required
by the Tribunal on at least five (5) days advance notice to the party required to make the deposit. x
x x On the other hand, Rule 21 of the 1998 Rules of the HRET governing summary dismissal of
election contests provides, to wit
RULE 21. Summary Dismissal of Election Contest. An election protest or petition for quo warranto
may be summarily dismissed by the Tribunal without the necessity of requiring the protestee or
respondent to answer if, inter alia: (1) the petition is insufficient in form and substance; (2) the
petition is filed beyond the period provided in Rules 16 and 17 of these Rules; (3) the filing fee is
not paid within the period provided for filing the protest or petition for quo warranto; (4) in case of
protests where a cash deposit is required, the cash deposit or the first P100,000.00 thereof, is not
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2003-29275 October 6, 2011
paid within ten (10) days after the filing of the protest; (5) the petition or copies thereof and the
annexes thereto filed with the Tribunal are not clearly legible.
RULE 33. Effect of Failure to Make Cash Deposit. If a party fails to make the cash deposits or
additional deposits herein provided within the prescribed time limit, the Tribunal may dismiss the
protest, counter-protest, or petition for quo warranto, or take such action as it may deem equitable
under the
circumstances.
Unlike in the case of election protests, no period is provided for to make the cash deposit in
the case of petitions for quo warranto. However, the cash deposit required in quo warranto
cases is fixed, i.e., P5,000.00. It does not vary nor can it be varied; it is required to be paid
together with the filing fee at the time the petition is filed. It is different from a protest
and/or counter-protest where the amount of the required cash deposit is yet to be
determined since it has to be based on the number of ballot boxes and other election
documents and paraphernalia to be collected and brought to the tribunal. Therefore,
depending on the amount that may be required for the collection of the ballot boxes and
other election documents and paraphernalia, the parties are given specified periods within
which to pay. Thus, when the required amount of cash deposits does not exceed P75,000.00,
the party concerned must make the deposit within ten (10) days after the filing of the protest
or counter-protest; otherwise, when it exceeds P75,000.00 he is required to make a partial
deposit of at least P75,000.00 likewise within ten (10) days and the balance payable in
installments as may be determined by the Tribunal.
Party litigants appearing before the HRET or, to be more precise, their lawyers, are duty
bound to know and are expected to properly comply with the procedural requirements laid
down by the Tribunal without being formally ordered to do so. They cannot righteously
impute abuse of discretion to the Tribunal if by reason of the non-observance of those
requirements it decides to dismiss their petition. Imperative justice requires the proper
observance of technicalities precisely designed to ensure its proper and swift dispensation.
PENA V. HRET | Torres, 1997
FACTS
Pe a v Abueg for Cong of 2nd District of the province of Palawan. Abueg won. Pena filed
Petition Ad Cautelam with HRET. GROUND: massive fraud, widespread vote-buying,
intimidation and terrorism and other serious irregularities committed before, during and after
the voting, and during the counting of votes and the preparation of ER and certificates of
canvass which affected the results
Abueg filed answer with Counterclaim and Counterprotest. Defense: HRET has not acquired
jurisdiction over the petition, the same being insufficient in form and substance. MTD
GROUND: petition failed to allege the precincts where the massive fraud and
disenfranchisement of voters occurred, nor did it point out how many votes would be gained
by the protestant as a result of the same.
Opposition to the MTD: Summary of Contested Precincts, naming 700 precincts where
election irregularities allegedly occurred.
HRET dismissed. Although it had sole jurisdiction over the petition, the said petition, however,
fails to state a cause of action, and is therefore, insufficient in form and substance. Hence, this
petition.
Penas argument: [1] Instant election protest is sufficient in form and substance even while
failing to specify the precincts where irregularities allegedly occurred. Nowhere is it provided
that the specification of the precincts is a jurisdictional requirement that must be complied
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
with in order that an election protest can be entertained by the HRET. [2] Applying the same
principle to the specification of precincts in the instant case, the defect in the petition should
have been cured by the opposition to the private respondents Motion to Dismiss. [3] the fact
that the HRET did not summarily dismiss the Petition Ad Cautelam, and instead, required the
private respondent Abueg to file an Answer, the HRET has thus made a prior determination
that the petition is sufficient in form and substance.
ISSUE
WON HRET correctly dismissed the petition.
HELD/RATIO
YES. Petitioner makes no specific mention of the precincts where widespread election, fraud and
irregularities occured. This is a fatal omission, as it goes into the very substance of the protest.
Under Section 21 of the Revised Rules of Procedure of HRET, insufficiency in form and substance of
the petition constitutes a ground for the immediate dismissal of the Petition.
The prescription that the petition must be sufficient in form and substance means that the
petition must be more than merely rhetorical. If the allegations contained therein are
unsupported by even the faintest whisper of authority in fact and law, then there is no other
course than to dismiss the petition, otherwise, the assumptions of an elected public official
may, and will always be held up by petitions of this sort by the losing candidate.
The petition ad cautelam poses a more serious inadequacy than a mere failure to specify the
number of votes which would inure to the protestant (Gallares vs. Casenas), or the failure to
impugn the validity of some of the ballots cast (Yalung vs. Atienza) both of which cases were
decided in the 1920s. The defect in the instant case arises from the failure to allege the
contested precincts. Only a bare allegation of massive fraud, widespread intimidation and
terrorism and other serious irregularities, without specification, and substantiation, of where
and how these occurrences took place, appears in the petition. We cannot allow an election
protest based on such flimsy averments to prosper, otherwise, the whole election process will
deteriorate into an endless stream of crabs pulling at each other, racing to disembank from
the water.
SAQUILAYAN V. COMELEC | Azcuna, 2003
FACTS
Saquilayan v Jaro for Municipal Mayor of Imus, Cavite. Saquilayan won. Jaro instituted an
Election Protest Case (EPC No. 01-02) before the RTC of Imus, Cavite contesting the results in
all 453 election precincts in the Municipality of Imus. Saquilayan filed his Answer with MTD
contending, among other things, that the election protest failed to state a cause of action.
MTD denied.
COMELEC 2nd Division: ruled in favor of Saquilayan, dismissed the protest, citing Pe a v HRET.
COMELEC en banc: granted MR and EPC proceeded. Hence this petition by Saquilayan.
Applicable case is Miguel v COMELEC. Petitioner Miguel argued that the general allegations of
fraud and irregularities were not sufficient to order the opening of ballot boxes and counting
of ballots. The Court, however, found the allegations embodied in the election protest to be
serious enough to necessitate the opening of the ballot boxes to resolve the issue of fraud
and irregularities in the election.
ISSUE
WON there is an exception to the Pena ruling
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2003-29275 October 6, 2011 203
HELD/RATIO
YES. When the allegations are serious enough to necessitate the opening of the ballot boxes Miguel
v COMELEC.
The facts of the present petition are similar to those in Miguel rather than to those in Pe a. In
Miguel, there was a controversy between two candidates for municipal mayor, while Pe a
dealt with candidates for a congressional district office. Also, one reason that led to the
dismissal of the election protest in Pe a was the protestants failure to specify the 700 out of
the 743 precincts where the alleged anomalies occurred. In both Miguel and the present
petition, the protestants questioned all the precincts in their respective municipalities.
Furthermore, the Miguel case, being the more recent decision, should prevail in case of a
conflict, under the well-established doctrine that a later judgment supersedes a prior one in
case of an inconsistency. No doubt, allowing the election protest to proceed would be the
best way of removing any doubt as to who was the real candidate chosen by the electorate.
Barring the proceedings due to technicalities and procedures accomplishes nothing except
possibly to suppress the will of the majority.
SOLLER V. COMELEC | Quisumbing, 2000
FACTS
Soller v Saulong for mayor of the municipality of Bansud, Oriental Mindoro. Soller won.
Saulong filed with COMELEC petition for annulment of the proclamation/exclusion of election
return and then with RTC an election protest. Soller filed his answer with counter- protest.
Petitioner also moved to dismiss private respondent's protest on the ground of lack of
jurisdiction, forum-shopping, and failure to state cause of action.
COMELEC dismissed the pre-proclamation case filed by Saulong.
TC denied Sollers MTD. Repaired to COMELEC en banc which dismissed Soller's suit. The
election tribunal held that [1] Saulong paid the required filing fee, [2] the defect in the
verification is a mere technical defect which should not bar the determination of the merits of
the case and [3] no forum shopping to speak of.
Under the COMELEC Rules of Procedure, a MR of its en banc ruling is prohibited except in a
case involving an election offense. Since the present controversy involves no election offense,
reconsideration is not possible and petitioner has no appeal or any pla in, speedy and
adequate remedy in the ordinary course of law. Accordingly, petitioner properly filed the
petition for certiorari with SC.
SC issued order to maintain status quo ante.
ISSUE
WON COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in not
ordering the dismissal of Saulong's election protest.
HELD/RATIO
YES. COMELEC en banc had no jurisdiction. It should have referred the matter to a division first. The
petition for certiorari assails the TC's order denying the MTD Saulong's election protest. The
questioned order of the trial court is interlocutory because it does not end the trial court's task of
adjudicating the parties' contentions and determining their rights and liabilities as regards each
other.
The authority to resolve petition for certiorari involving incidental issues of election protest,
like the questioned order of the trial court, falls within the division of the COMELEC and not
on the COMELEC en banc. Note that the order denying the MTD is but an incident of the
PROF. GISELLA N. DIZON-REYES
 204 Ma. Jessa M. Alvarez
election protest. If the principal case, once decided on the merits, is cognizable on appeal by a
division of the COMELEC, then, there is no reason why petitions for certiorari relating to
incidents of election protest should not be referred first to a division of the COMELEC for
resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance of
petitioner's petition in the first instance.
Saulong failed to pay the filing fee of P300.00 for his protest as prescribed by the COMELEC
rules. The amount of P368.00 for which OR 7023752 was issued for the Judiciary
Development Fund as shown by the entries in the cash book of the clerk of court. Thus, only
P32.00 with OR 7022478 credited to the general fund could be considered as filing fee paid by
private respondent for his protest. A court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. Patently, the trial court did not acquire jurisdiction
over private respondent's election protest. Therefore, COMELEC gravely erred in not ordering
the dismissal of private respondent's protest case.
An election protest falls within the exclusive original jurisdiction of the Regional Trial Court, in
which case the Rules of Court will apply, and that the COMELEC Rules of Procedure is
primarily intended to govern election cases before that tribunal. But the Court declared that
this decision must not provide relief to parties in future cases involving inadequate payment
of filing fees in election cases. Our decisions in Pahilan and Gatchalian bar any claim of good
faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in
election cases.
Errors in the payment of filing fees in election cases is no longer excusable. And the dismissal
of the present case for that reason is, in our view, called for. Other reasons for dismissal:
Improper verification and lack of certification of non-forum shopping.
In the verification, private respondent merely stated that he caused the preparation of his
petition and he has read and understood all the allegations therein. Certainly, this is
insufficient as private respondent failed to state that the contents of his election protest are
true and correct of his personal knowledge. Since the petition lacks proper verification, it
should be treated as an unsigned pleading and must be dismissed.
Saulong successively filed a "petition for annulment of the proclamation/exclusion of election
return" and an election protest. Yet, he did not disclose in his election protest that he earlier
filed a petition for annulment of proclamation/exclusion of election returns. It could be
argued that Saulong's petition for annulment of proclamation/exclusion of election returns
was a pre-proclamation case. The issues raised in that petition pertain to the preparation and
appreciation of election returns and the proceedings of the MBC. But note that such petition
was filed after the proclamation of petitioner as the winning candidate, thus, the petition was
no longer viable, for PPC may no longer be entertained by the COMELEC after the winning
candidates have been proclaimed. It might even be claimed with some reason that private
respondent, by resorting to the wrong remedy, abandoned his pre-proclamation case earlier
filed.
ARROYO V. HRET AND SYJUCO | Francisco, 1995
FACTS
Arroyo v Syjuco for Makati Cong. Arroyo won. Syjuco filed an election protest before HRET
five days after the Makati BOC proclaimed petitioner Joker. GROUNDS: alleged
irregularities/anomalies in the tabulation and entries of votes and massive fraud. PRAYER:
revision and recounting of ballots cast in 1,292 out of the total 1,714 precincts of Makati from
which result he aimed to be declared as the duly elected congressman of Makati.
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Joker filed a counter-protest questioning the residence qualification of Syjuco, but the same
was dismissed by HRET.
HRET granted Syjucos prayer i.e. revision of the ballots was undertaken, but not without
serious irregularities having been unearthed in the course thereof. Tasked by HRET to
investigate on the matter, now retired SC Justice Emilio Gancayco confirmed the irregularities
and anomalies engineered by some HRET officials and personnel. The findings contained in
Justice Gancayco's Report and Recommendation were aptly summarized in the "Dissenting
Opinion" of Justice Bidin. HRET employees, while taking advantage of their official authority
and control over the operational details of the revision of ballots, and for corrupt motives,
subverted the revision exercise in at least three (3) protest cases, including this case (HRET
Case No. 92-019), by maintaining a pool of individuals subject to their control which were
offered or foisted upon party litigants as their revisors. Once functioning as party-revisors,
these individuals implemented instructions given by the respondent HRET employees to
pilfer, dump (i.e., place ballots voted for one party with other ballots which do not indicate
votes for either party such as unclaimed, stray, spoiled or unused ballots, or ballots for other
candidates), and mark (in order to spoil) or fill-in ballots of one or the other of the litigants.
Neither Syjuco nor Arroyo availing of their right to move for a technical examination after
completion of revision, as provided for under Rules 42-49 of the HRET Rules, reception of
their respective evidence followed.
Evidence for Syjuco were all documentary and voluminous at that consisting of over 200,000
pages. These exhibits, however, and Syjuco and HRET do not seriously dispute are in general,
"mere photocopies and not certified or authenticated by comparison with the original
documents or identification by any witness . . . ." and were formally offered by merely asking
that they be marked. On the other hand, Joker's evidence consisted of certified true copies of
the Revision Reports and election returns. Despite the vigorous objection raised by petitioner
with respect to the admission of and the probative value of private respondent's exhibits,
HRET admitted the evidence for whatever they may be worth.
In his memorandum cum addendum, Syjuco veered away from his original posture that his
protest should be decided on the basis of a revision and recounting of ballots, and instead
called upon HRET to decide the case on the basis of what private respondent h imself
expressly admits as a "truly innovative and NON-TRADITIONAL process" the PRECINCT-
LEVEL DOCUMENT-BASED EVIDENCES.
ISSUE
WON HRET erred in not dismissing Syjucos protest and thereafter annulling Jokers proclamation.
HELD/RATIO
YES. However guised or justified by private respondent, this innovative theory he introduced for
the first time in his memorandum cum addendum indeed broadened the scope of the election
protest beyond what he originally sought-the mere revision of ballots. From his initial prayer for
revision which lays primary, if not exclusive emphasis on the physical recount and appreciation of
ballots alone, private respondent's belated attempt to inject this theory at the memorandum stage
calls for presentation of evidence (consisting of thousands of documents) aside from, or other than,
the ballots themselves. By having done so, private respondent in fact intended to completely
abandon the process and results of the revision and thereafter sought to rely on his brainchild
process he fondly coined as "precinct-level document-based evidence." This is clearly substantial
amendment of the election protest expressly proscribed by Rule 28 of the HRET internal rules
which reads:
PROF. GISELLA N. DIZON-REYES
Ma. Jessa M. Alvarez
After the expiration of the period for filing of the protest, counter-protest or petition for quo
warranto, substantial amendments which broaden the scope of the action or introduce an
additional cause of action shall not be allowed. . . . .
The majority members of the Tribunal in fact had already sensed the impropriety of private
respondent's belated shift of theory when it issued its "show-cause" order requiring the latter
to explain why his election protest should not be dismissed. But the majority violated with
open eyes its own rules when they resolved not to dismiss the protest a clear indication of
grave abuse of discretion. The least that public respondent HRET could have done thereafter
was to conduct further hearing so that petitioner Arroyo may have examined, objected to and
adduced evidence controverting private respondent Syjuco's "precinct-level document-based
evidence" despite the time within which the parties are allowed to present their evidence has
already lapsed. But nothing in the records indicates that one was conducted. Petitioner's right
to due process was clearly violated at this particular stage of the proceedings.
Granting that private respondent's change in theory (being a substantial amendment) is
merely disallowed and not a valid ground for the outright dismissal of his election protest,
nonetheless it has been consistently held that substantial amendments to the protest maybe
allowed only within the same period for the filing of the election protest which, under Rule 16
of the HRET Rules, is 10 days after the proclamation of the winner. Private respondent's
"precinct-level document-based anomalies/evidence" theory having been introduced only at
the homestretch of the proceedings, he is bound by the issue which he essentially raised in
his election p rotest and that is, a revision of the ballots will confirm his victory and the
irregularities/anomalies and massive fraud foisted upon him during the 1992 synchronized
elections. For the rule in an election protest is that the protestant or counterprotestant must
stand or fall upon the issues he had raised in his original or amended pleading filed prior to
the lapse of the statutory period for the filing of protest or counter protest. Syjuco is
therefore bound by the final results of the revision confirming petitioner's victory over him by
a plurality of 13,092 votes. Petitioner's inevitable victory in the revision was even conceded to
by private respondent himself.
The photocopies violate the best evidence rule which is simply meant that no evidence shall
be received which is merely substitutionary in its nature so long as the original evidence can
be had. They should have been rejected altogether unworthy of any probative value at all,
being incompetent pieces of evidence.
HRETs two mandatory requisites for the annulment of election returns based on fraud,
irregularities or terrorism, namely (1) that more than fifty percent (50%) of the total number
of votes in the precinct or precincts were involved, and (2) that the votes must be shown to
have been affected or vitiated by such fraud, irregularities or terrorism.
HRET proceeded to annul 50,000 votes without a dint of compliance with these requisites as it
annulled the results on the basis of lost or destroyed ballots despite the presence and
availability of election return and other competent secondary evidence whose authenticity
were never questioned, and on the basis of alleged forged signatures which were never
competently proved and substantiated by private respondent.
The tribunal nullified the 10% margin in several contested precincts with alleged substitute
voting which the dissenting opinion correctly observed as "a far cry from the existing 50%
rule". What is even worse is that the nullification of these votes was based on inadmissible
documents some of them not offered in evidence by private respondent. The Court cannot
countenance such blatant nullification of votes as it fails to comply with the established
standard on annulment.
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2003-29275 October 6, 2011 205
Elections should never be held void unless they are clearly illegal; it is the duty of the court to
sustain an election authorized by law if it has been so conducted as to give a free and fair
expression of the popular will, and the actual result thereof is clearly ascertained.
The partiality of the majority of the members of the Electoral Tribunal having been shown
through their concerted action to disregard tribunal rules and the basic rules on evidence,
recourse for a reconsideration of its decision becomes nugatory and an immedia te recourse
to this Court can be had based on the fundamental principle of due process. And it is well-
settled that a prior motion for reconsideration can be dispensed with if, as in this case,
petitioner's fundamental right to due process was violated
Side issue: Syjuco imputed rumors about Joker and Fleri sharing a bed together. Guilty of
indirect contempt.
LEGARDA V. DE CASTRO | Tinga, 2004
FACTS
An election protest was filed by 3 unsuccessful candidates for seats in the Sangguniang
Panglungsod of Gingoog City, directed at 3 proclaimed candidates (Idulza as 7th, Cabana as
8th, Maquiso as 9th). COMELEC 2nd Division found merit in the protest and ordered the
protestees to vacate their posts. It also determined that one Mortiz, who was not a party to
the election protest, had garnered more votes than the three protestants. Apparently, per the
Certificate of Canvass, Mortiz had placed 10th in the city council election, though he had not
been impleaded in the protest as he was a party-mate of the protestants.
Argument in the MR with the COMELEC en banc: [1] questioned the proclamation of Mortiz,
who was not a party to the election protest, [2] Asuncion and Garcia had filed COC for Punong
Barangay and Barangay Kagawad respectively in the barangay elections, and Asuncion was
elected. As a result, they should be deemed to have abandoned their election protest.
Bollozos intervened, sought to take place of Asuncion as 10th placer.
COMELEC en banc partially affirmed the 2nd Division. No reversible error as to the
appreciation of the contested ballots, and in declaring Mortiz as the 7th place councilor.
HOWEVER, it also considered Bollozos claim as meritorious, as according to it, records reveal
that Bollozos garnered a total of 17,023 votes, clearly outnumbering *Asuncions+ 16,567
votes and *Garcias+ 16,502 votes. Bollozos was proclaimed as the 9th place. Asuncion
should not be proclaimed, as he has been deemed to have abandoned his protest due to his
successful candidacy for Punong Barangay . Accordingly, the 10th place was declared vacant.
Hence, this petition.
ISSUES
(1) WON COMELEC committed grave abuse of discretion in proclaiming Mortiz and Bollozos, the
former having no participation in the election protest, while the latter having filed her motion for
intervention beyond the period provided by law.
(2) WON COMELEC erred in the manner of appreciation of the contested ballots.
HELD/RATIO
Petitioners are unable to point out why the COMELEC committed grave abuse of discretion in
the appreciation of the contested ballots. Notwithstanding the dissenting opinion, the Second
Divisions factual findings, as affirmed by the COMELEC En Banc, are supported by substantial
evidence and thus beyond the ken of review by the Court. Thus, the Court is bound by the
findings of the COMELEC as to how many votes the parties had obtained in the city council
election.
PROF. GISELLA N. DIZON-REYES
 206 Ma. Jessa M. Alvarez 2003-29275 October 6, 2011

Mortiz, who had originally placed tenth (10th), has become the seventh (7th) placer,
considering that his original vote total still surpassed that of the protestants. We are unable
to see how such declaration by the COMELEC could constitute grave abuse of discretion, even
if Mortiz had not been a party to the election protest. He was not a losing candidate elevated
into victory, as he apparently was already proclaimed a duly elected city councilor in May of
2001. The petitioners were dislodged from their respective seats because the private
respondents garnered more votes than them. Mortizs vote total remained unchanged
despite the protest. His elevation to seventh (7th) place is but a necessary consequence of the
finding of the COMELEC that the petitioners had actually obtained less number of votes than
as reflected in the first canvass results. It would be patently ridiculous for the Court or the
COMELEC to hold that he should still be deemed as the tenth (10th) placer when the
amended vote totals reveal that he had garnered more votes than the new eighth (8th)
placer. Presumptively, the vote totals as amended after the revision more accurately reflect
the true will of the voters of Gingoog City, and the elevation of councilor Mortiz from tenth
(10th) to seventh (7th) place is in consonance with the electoral mandate.
Election protests are guided by an extra-ordinary rule of interpretation that statutes providing
for election contests are to be liberally construed to the end that the will of the people in the
choice of public officers may not be defeated by mere technical objections. For that reason,
the Court sustains the allowance by the COMELEC of Bollozos Intervention. It would have
been explicitly anomalous had Bollozos not been seated in the City Council, considering that
her uncontested vote total had exceeded that of Asuncion, the ninth (9th) placer according to
the Second Division. The people of Gingoog City had chosen Bollozos to serve as their
councilor, and it was but proper for the COMELEC to recognize that electoral will and
accordingly amend the Second Divisions Resolution.
ROC provides that a motion to intervene be filed at any time before rendition of judgment of
the trial court. However, the suppletory role of the ROC in this case must be dispensed with if
its application would frustrate the electoral will. Further, as the SolGen points out in his
Comment filed in behalf of the COMELEC, the Court has, in exceptional cases, allowed
intervention notwithstanding the rendition of judgment by the trial court, OR even after the
case had become final and executory. It is not ordinarily predisposed, on account of broad
claims of equity, to disregard infractions of procedural rules. Yet election cases are of such an
exceptional character that the supervening State interest is to ensure that the true results of
its elections are given efficacy. COMELECs grant of the Bollozos intervention is in accord with
this superior principle which is grounded on the imperative to seek and make the sovereign
will of the people prevail.
None of the parties question the COMELEC En Bancs declaration of vacancy of the 10th seat
in the SP of Gingoog City on the premise that the 10th placer Asuncions subsequent active
candidacy and election as PB should be deemed an abandonment of his protest. In so holding,
the COMELEC En Banc cited the Courts majority opinion in the case of Defensor-Santiago v.
Ramos. The parties adduced no compelling reason for the Court to disturb this conclusion of
the COMELEC. At the same time, the 11th placer Garcia cannot be elevated to the 10th spot,
for the simple reason that the electorate of Gingoog City did not elect him as one of the 10
city councilors.

LAW ON PUBLIC OFFICE AND CIVIL SERVICE AY 2011-2012 PROF. GISELLA N. DIZON-REYES