590 Phil.

245

THIRD DIVISION

[ G.R. No. 177135, October 15, 2008 ]

ARTURO O. RADAZA, JULITO H. CUIZON, FERNANDO T. TAGA-AN, JR., AND ROGELIO D.

VELOSO, PETITIONERS, VS. THE HONORABLE COURT OF APPEALS, SPECIAL NINETEENTH
(19TH) DIVISION, OMBUDSMAN MERCEDITAS GUTIERREZ, DEPUTY OMBUDSMAN VIRGINIA
PALANCA-SANTIAGO, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG), NORMA
R. PATALINGJUG AND CRISOLOGO SAAVEDRA, RESPONDENTS.

DECISION

CHICO-NAZARIO, J.:

Assailed in this Special Civil Action for Certiorari with a prayer for the Immediate Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Mandatory Injunction[1] is the Resolution[2] dated 2 April
2007 of the Special Nineteenth (19th) Division of the Court of Appeals in Cebu City in CA-G.R. SP No.
02615. Said Resolution denied petitioners' prayer for the issuance of a Temporary Restraining Order
(TRO) to enjoin the Office of the Ombudsman from implementing its Order[3] dated 29 March 2007
placing the petitioners herein under preventive suspension for a period of six months, pending
investigation.

The undisputed facts of the case are set forth hereunder:

On 9 to 15 January 2007, the Philippines successfully played host to the 12th Association of Southeast
Asian Nations (ASEAN) Summit, which was held in the province of Cebu.
The preparations therefor were undertaken only in the year 2006 or less than a year before the
designated date of the Summit.

Several cause-oriented groups[4] wrote a letter[5] dated 9 January 2007 to Honorable Virginia Palanca-
Santiago, the Director of the Public Assistance and Corruption Prevention Office (PACPO) of the Office of
the Ombudsman for the Visayas, urging the latter to investigate some allegedly anomalous transactions
involving the preparations for the ASEAN Summit. In particular, the letter pointed out to the overpriced
procurement of decorative lamp posts and streetlights, which were installed along the ceremonial routes
in the cities of Cebu, Mandaue, and Lapu-Lapu. Said letter was docketed as CPL-V-07-0033.

Subsequently, Crisologo Saavedra, the Project Manager of the joint venture company Pelican/Cebesos
that previously offered to sell and install decorative street lights in Cebu City, likewise submitted
supplemental evidence[6] to PACPO Director Palanca-Santiago to prove that the decorative lamp posts
and streetlights actually installed were indeed severely overpriced.

After the conduct of an investigation, a Final Evaluation Report[7] was submitted to PACPO Director
Palanca-Santiago on 23 March 2007. The Report stated that the project for the procurement and
installation of decorative lamp posts and street lighting facilities along the ceremonial routes of the 12th
ASEAN Summit in the cities of Cebu, Mandaue, and Lapu-Lapu pertained to the national government
through the Department of Public Works and Highways (DPWH). In the implementation of the said
project, the local chief executives of the aforementioned cities were made to select the designs of the
lamp posts to be installed in their areas of jurisdiction, subject to the approval of the DPWH. The City
Engineer's Office of Mandaue and Lapu-Lapu prepared their own Program of Works and Estimates
(POWE) for the project, with the approval of their respective City Mayors; while the DPWH Regional
Office No. VII prepared that of Cebu City. The POWE submitted by the cities contained the detailed list of
the equipment, personnel, and total expenditure requirements for the part of the project within their
respective jurisdiction.

Still, according to the PACPO Report, comparing in detail the costs of the lamp posts and street lighting
facilities as specified in the POWE prepared by the cities of Mandaue and Lapu-Lapu vis-à-vis the costs
for the same as indicated in the importation documents and price quotations from the suppliers, it could
be determined that the former prices were as much as ten (10) times more than the latter.

Thus, the PACPO investigating team concluded that there was indeed prima facie evidence of
overpricing, resulting from the collusion between the contractors, Gampik Construction and
Development Corp. (Gampik) and Fabmik Construction and Equipment Co., Inc. (Fabmik), who supplied
and installed the street lighting facilities and decorative lamp posts; the City Government of Lapu-Lapu,
as represented by herein petitioners City Mayor Arturo O. Radaza and City Engineers Julito H. Cuizon,
Fernando T. Taga-An, Jr., and Rogelio D. Veloso; the City Government of Mandaue, as represented by its
City Mayor and City Engineers; and the Department of Public Works and Highways Region VII Officials.

Consequently, the Report recommended the filing of a criminal case for violation of Republic Act No.
3019, paragraph 3(e)[8] against all the individuals involved, as well as an administrative case for
Dishonesty/Misconduct against the erring public officials.

Accordingly, an administrative complaint for Dishonesty and Grave Misconduct was filed against the
public officials involved, including petitioners, before the Office of the Ombudsman (Visayas), docketed
as Administrative Case No. OMB-V-A-07-0122-C.[9]

On 29 March 2007, Ombudsman Ma. Merceditas N. Gutierrez issued an Order[10] in Administrative Case
No. OMB-V-A-07-0122-C, to the following effect:

Respondent DPWH-Region VII, Mandaue City and Lapu-Lapu City officials are the signatories to the
Program of Work covering their respective areas of jurisdiction. On the other hand, respondent DPWH-
VII [Bids and Awards Committee] Chairman and Members were the officials responsible for the conduct
of the supposed bidding. Thus, taking into consideration how respondents are so closely involved,
complainants now allege that respondents, in conspiracy among each other and with the private
contractors, can be said to be the very people who orchestrated the subject overpricing of lighting
facilities.

The Final Evaluation Report of the PACPO-Visayas, setting forth in detail the circumstances behind the
alleged overpricing of lampposts, and its numerous attachments which are mostly public documents,
constitutes strong evidence of guilt. Moreover, in view of the flagrant nature of the acts complained of,
the administrative charge definitely involves Grave Misconduct, which on another perspective might
possibly advance further to include destruction or tampering of important official documents. For
prudence' (sic) sake, measures, (sic) should be taken so as to ensure a fair and reliable progress of this
investigation.
WHEREFORE, as warranted by aforesaid insight on the circumstances of the case, above-named
respondents [including petitioners herein] are hereby placed under PREVENTIVE SUSPENSION for a
period of six (6) months, pending investigation.

Without seeking reconsideration of the above order, petitioners filed with the Court of Appeals on 2
April 2007 a Petition for Certiorari[11] under Rule 65 with [a] Prayer for Preliminary Injunction and
Issuance of Temporary Restraining Order, docketed as CA-G.R. SP No. 02615.

Petitioners contended that the Ombudsman committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the order for their preventive suspension since there was no strong
evidence of guilt to warrant the issuance of the said order. According to the petitioners, the procurement
and installation of decorative lamp posts and street lighting facilities in the City of Lapu-Lapu were
entirely the project of the national government. They argue that the POWE of Lapu-Lapu City, upon
which their participation was based, was prepared by DPWH-Region VII and they merely signed the same
given that the project was already pressed for time. Petitioners likewise claimed entitlement to a TRO
and/or a Preliminary Injunction as they asserted that the issuance of the order of preventive suspension
was a clear violation of their rights in esse and its impending enforcement would inflict grave injustice
and irreparable injury on their part.

On the same day, 2 April 2007, the Court of Appeals issued the assailed Resolution,[12] in which it
resolved as follows:

Addressing petitioners' prayer for the issuance of a TRO, this Court finds no cogent and compelling
reason to issue the same.

Aggrieved, petitioners filed on 3 April 2007 a Very Urgent Motion for Reconsideration[13] thereon,
arguing, inter alia, that the order for their preventive suspension violated the provisions of Section
261(x) of the Omnibus Election Code,[14] prohibiting the suspension of elective officials during the
election period[15] without the approval of the Commission on Elections (COMELEC); and deprived the
petitioners of their salaries for the duration of the preventive suspension. Petitioners reiterated therein
their prayer for the issuance of a TRO against the implementation of the order for their preventive
suspension.

On 4 April 2007, the Court of Appeals resolved[16] to direct the respondent Office of the Ombudsman to
comment on the afore-mentioned motion within ten (10) days from notice.
In the meantime, on 3 April 2007, the office of the Department of Interior and Local Government (DILG),
Region VII duly implemented the order for the preventive suspension of petitioner Radaza. This fact was
confirmed by Rene K. Burdeos, Regional Director of the DILG in Region VII, in a letter[17] addressed to
Ombudsman Ma. Merceditas N. Gutierrez, which reads:

Dear Hon. Gutierrez:

Please be advised that we have implemented the preventive suspension for six (6) months on Mayor
Arturo O. Radaza of Lapu-lapu (sic) City on April 03, 2007, and on Mayor Thadeo Z. Ouano of Mandaue
City on April 04, 2007.

The implementation of your Order dated March 29, 2007, was carried out through the issuance of
separate Memorandum[18] to the respondent mayors by [Secretary of Interior and Local Government]
Ronaldo V. Puno which were (sic) duly served. The respondents' respective vice mayors were likewise
issued Memorandum by SILG Puno for them to assume and perform the duties and functions of the
Office of the Mayor. The concerned vice mayors took their oath of office on the day the aforementioned
memorandum to the respondent mayors was served.

Truly yours,

(Sgd.)

RENE K. BURDEOS

Regional Director

[Emphasis ours.]

The following day, on 4 April 2007, petitioners Cuizon, Tagaan, Jr., and Veloso were served by the Acting
Mayor of Lapu-Lapu City, Norma Patalingjug with copies of DILG Secretary Puno's Memorandum[19]
directing the implementation of the order of preventive suspension against them.[20]

On 10 April 2007, petitioners filed a Motion to Withdraw Motion for Reconsideration[21] with the Court
of Appeals, alleging that "due to the said service of the notice of preventive suspension, the [Very
Urgent] Motion for Reconsideration could not anymore be pursued further since the act sought to be
restrained has been performed already."

The very next day, on 11 April 2007, petitioners filed with this Court the instant Petition for Certiorari
with a prayer for the Immediate Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Mandatory Injunction,[22] raising the following issues:

I.

WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A TEMPORARY RESTRAINING

ORDER ON THE CONTINUATION OF THE SUSPENSION ORDER AND/OR WRIT OF PRELIMINARY
MANDATORY INJUNCTION TO MAINTAIN THE "STATUS QUO ANTE" ON THE GROUND THAT THERE IS NO
STRONG EVIDENCE OF GUILT AGAINST PETITIONERS WHICH WOULD WARRANT THE ISSUANCE OF AN
ORDER OF PREVENTIVE SUSPENSION.

II.

WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A TEMPORARY RESTRAINING

ORDER ON THE CONTINUATION OF THE SUSPENSION ORDER AND/OR WRIT OF PRELIMINARY
MANDATORY INJUNCTION TO MAINTAIN THE "STATUS QUO ANTE" ON THE GROUND THAT THERE IS NO
NECESSITY FOR THE REMOVAL OR SUSPENSION OF THE PETITIONERS IN THEIR RESPECTIVE OFFICES
SINCE THEIR CONTINUED EXERCISE OF THEIR RESPECTIVE FUNCTIONS WILL NOT JEOPARDIZE OR
HAMPER THE INVESTIGATION OF THE OMBUDSMAN. THE ORDER OF PREVENTIVE SUSPENSION ISSUED
BY THE OMBUDSMAN DOES NOT SERVE ITS PURPOSE AS PROVIDED BY LAW AND JURISPRUDENCE.

III.

WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A TEMPORARY RESTRAINING

ORDER ON THE CONTINUATION OF THE SUSPENSION ORDER AND/OR WRIT OF PRELIMINARY
MANDATORY INJUNCTION TO MAINTAIN THE "STATUS QUO ANTE" ON THE GROUND THAT THEIR
CONSTITUTIONAL RIGHT TO PROCEDURAL DUE PROCESS WAS VIOLATED WHEN PUBLIC RESPONDENT
OMBUDSMAN SUMMARILY ISSUED ITS ORDER OF PREVENTIVE SUSPENSION AGAINST THEM.
IV.

WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A TEMPORARY RESTRAINING

ORDER ON THE CONTINUATION OF THE SUSPENSION ORDER AND/OR WRIT OF PRELIMINARY
MANDATORY INJUNCTION TO MAINTAIN THE "STATUS QUO ANTE" ON THE GROUND THAT THE ORDER
OF PREVENTIVE SUSPENSION ISSUED BY THE OMBUDSMAN WAS IN VIOLATION OF SECTION 261, PAR. (X)
OF THE OMNIBUS ELECTION CODE.

V.

WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A TEMPORARY RESTRAINING

ORDER ON THE CONTINUATION OF THE SUSPENSION ORDER AND/OR WRIT OF PRELIMINARY
MANDATORY INJUNCTION TO MAINTAIN THE "STATUS QUO ANTE" ON THE GROUND THAT THE LENGTH
OF THE PREVENTIVE SUSPENSION IMPOSED BY THE OMBUDSMAN IS UNWARRANTEDLY DRAWN OUT,
JUST SIGNIFYING ALSO THE ARBITRARINESS WITH WHICH THE SAID ORDER HAD BEEN ISSUED.

VI.

AS TO PETITIONER CITY MAYOR RADAZA ALONE, WHETHER OR NOT HE IS ENTITLED TO THE ISSUANCE OF
A TEMPORARY RESTRAINING ORDER ON THE CONTINUATION OF HIS SUSPENSION ORDER AND/OR WRIT
OF PRELIMINARY MANDATORY INJUNCTION TO MAINTAIN THE "STATUS QUO ANTE" ON THE GROUND
THAT UNDER THE DOCTRINE ENUNCIATED IN ARIAS VS. SANDIGANBAYAN, G.R. NO. 81563, DECEMBER
19, 1989, WHEREIN HE CANNOT BE HELD LIABLE AS THE LOCAL CHIEF EXECUTIVE FOR RELYING IN HIS
SUBORDINATES WHEN HE SIGNED THE POWE, WHETHER TO APPROVE OR MERELY NOTE THE SAME.

Without acting on petitioners' prayer for the issuance of a TRO and/or Preliminary Injunction, the Court,
in a Resolution[23] dated 23 April 2007, required the respondents Ombudsman Ma. Merceditas N.
Gutierrez, Deputy Ombudsman Virginia Palanca-Santiago, the DILG, Acting Mayor of Lapu-Lapu City
Norma R. Patalingjug,[24] and private complainant Crisologo Saavedra[25] to comment on the Petition at
bar.

On 27 April 2007, petitioners filed an Urgent Motion to Resolve Prayer for Temporary Restraining Order
with Manifestations,[26] stating therein that the order of preventive suspension upon petitioner Radaza
had already caused damage to his bid for re-election as Mayor of Lapu-Lapu City. Petitioners further
manifested that they had just obtained a copy of the Final Evaluation Report by PACPO and averred that
their involvement in the alleged anomalous transactions was not clearly set forth therein.

Petitioners eventually filed on 4 June 2007 a Motion to Withdraw Petition for Certiorari for Being Moot
and Academic,[27] praying that their petition be considered withdrawn with respect to petitioner Radaza
in view of his re-election as Mayor of Lapu-Lapu City, thereby rendering moot the issue of the validity of
his preventive suspension.

In a Resolution[28] dated 13 June 2007, the Court granted the above-mentioned Motion to Withdraw
Petition insofar as petitioner Radaza was concerned and noted without action petitioners' Urgent
Motion to Resolve Prayer for Temporary Restraining Order with Manifestations.

On 29 June 2007, the Ombudsman duly filed its Comment,[29] arguing that petitioners failed to exhaust
available ordinary remedies before filing their petition before this Court and the Ombudsman did not act
with grave abuse of discretion in issuing the order of preventive suspension against the petitioners.

On 12 December 2007, the Court ordered[30] petitioners to file their Reply to the Comment of the
Ombudsman.

During the pendency of the present Petition before this Court, the Court of Appeals rendered its
Decision[31] on 24 January 2008, dismissing petitioners' Petition for Certiorari in CA-G.R. SP No. 02615.
The appellate court noted that petitioner Radaza was successfully re-elected during the 14 May 2007
elections and the six-month period of preventive suspension imposed upon the petitioners had already
lapsed, the same having been served on April 2007 and which ended on October 2007. Hence, the Court
of Appeals found it already unnecessary to further discuss the issues raised by the petitioners as their
Petition had become moot.

In the meantime, on 31 January 2008, the Office of the Ombudsman (Visayas) rendered a Decision[32] in
Administrative Case No. OMB-V-A-07-0122-C, ordering the dismissal from service of petitioners Cuizon,
Taga-an, Jr., and Veloso. The dispositive portion partly reads:

WHEREFORE, x x x.
Likewise there being substantial evidence showing that respondents x x x, JULITO H. CUIZON, FERNANDO
T. TAGAAN, JR., [and] ROGELIO D. VELOSO, in their respective official capacities, caused the preparation
of the corresponding Program of Works and Detailed Estimates which were used as basis in the aforesaid
procurement of street lighting facilities, let these respondents also be all found guilty of the
administrative offense of GRAVE MISCONDUCT, and each meted the penalty of DISMISSAL and all
inherent penalties. x x x [Emphasis ours.]

xxxx

The xxx HONORABLE LAPU-LAPU CITY MAYOR ARTURO O. RADAZA, [is hereby ordered] to implement the
aforesaid penalties of DISMISSAL with all inherent penalties, upon respondents JULITO H. CUIZON,
FERNANDO T. TAGAAN, JR., and ROGELIO D. VELOSO; and to furnish this Office with the memorandum
and/or office order evidencing said implementation.

On 18 February 2008, petitioners filed a Manifestation with Motion[33] before this Court, praying that
they be relieved from filing a Reply to the Comment of the Ombudsman inasmuch as the instant Petition
had already become moot and academic. They cited therein the fact that the Court had previously
granted petitioner Radaza's Motion to Withdraw Petition for Certiorari and petitioners Cuizon, Tagaan,
Jr., and Veloso have already completed the service of the period of their suspension.

Upon being ordered[34] to comment on the petitioners' Manifestation and Motion, the Ombudsman
interposed no objection to the same.

The Court finds that the Petition at bar has indeed become moot and academic. By virtue of the
supervening events that transpired after the filing of the instant Petition on 11 April 2007, the same has
ceased to present a justiceable controversy, such that a declaration thereon would no longer be of
practical use or value.[35]

Notably, the order of the Ombudsman, which placed the petitioners under preventive suspension for a
period of six (6) months, was issued on 29 March 2007 and petitioners received copies of the said order
on 30 March 2007.[36] DILG Secretary Puno issued Memoranda directing the implementation of the
order of suspension against petitioners. The suspension was effected upon service of DILG Secretary
Puno's Memoranda upon petitioners, particularly, petitioner Radaza on 3 April 2007; and petitioners
Cuizon, Taga-an, Jr., and Veloso on 4 April 2007.
It is worthy to note that petitioners did not bother to move for the reconsideration of the Order dated 29
March 2007 of the Office of the Ombudsman in Administrative Case No. OMB-V-A-07-0122-C, imposing
upon them preventive suspension for six (6) months. Section 8, Rule III of the Rules of Procedure of the
Office of the Ombudsman in administrative cases allows the filing of a motion for reconsideration or
reinvestigation within ten (10) days from receipt by the party of the challenged decision or order, based
on any of the following grounds:

a) New evidence had been discovered which materially affects the order, directive or decision;

b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest
of the movant.[37]

Petitioners, instead, directly assailed the 29 March 2007 Order of the Office of the Ombudsman in a
Petition for Certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 02615.

However, petitioners were unsuccessful in securing a TRO or a preliminary injunction from either the
Court of Appeals in CA-G.R. SP No. 02615 or this Court in the Petition at bar, which would have enjoined
the implementation of the order of suspension against them. Thus, the period of preventive suspension
was never interrupted.

The six-month period of the preventive suspension against petitioners Cuizon, Taga-an, Jr., and Veloso,
which commenced on 4 April 2007, had already lapsed on 1 October 2007.[38] Said petitioners even
acknowledged this fact in their Manifestation with Motion[39] filed before this Court on 18 February
2008, wherein they manifested that they have accordingly resumed their posts and admitted that the
instant Petition had indeed become moot and academic.[40]

As regards petitioner Radaza, the Court had previously resolved on 13 June 2007 to allow him to
withdraw from the instant Petition, considering his successful re-election as Mayor of Lapu-Lapu City.

Finally, the Court notes that the Office of the Ombudsman has since rendered a Decision dated 31
January 2008 in Administrative Case No. OMB-V-A-07-0122-C, wherein petitioners Cuizon, Taga-an, Jr.,
and Veloso, among other public officials, were found guilty of Grave Misconduct and were, thus,
sentenced to the penalty of dismissal from service. Resultantly, the order of preventive suspension
against petitioners has become inconsequential by then. Under Section 24 of Republic Act No. 6770,[41]
the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman
but not more than six months, without pay, except when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case, the
period of such delay shall not be counted in computing the period of suspension herein provided. In the
case at bar, both resolutory conditions for the preventive suspension have taken place: first, the six-
month period without pay had already expired on 1 October 2007; and second, the Office of the
Ombudsman had terminated Administrative Case No. OMB-V-A-07-0122-C by the promulgation of its
Decision therein on 31 January 2008.

All told, a determination by this Court of the issues of the validity of the issuance of the order of
preventive suspension against petitioners and the propriety of a TRO and/or a preliminary injunction to
arrest the injurious effects of the same would merely be an exercise in futility as there is no more
preventive suspension to speak of. And although the Court has previously ruled that the "moot and
academic" doctrine will not automatically dissuade it from resolving a case where (a) there is a grave
violation of the Constitution; (b) the exceptional character of the situation and the paramount public
interest is involved; (c) when the constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar and the public; and (d) the case is capable of repetition yet evading review,
[42] none of the said circumstances are obtaining in the instant case.

WHEREFORE, the Court hereby accordingly DISMISSES the Petition at bar for mootness. No costs.

SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.

599 Phil. 223

EN BANC

[ G.R. No. 168792, February 23, 2009 ]

ANTONIO B. GUNSI, SR., PETITIONER, VS. THE HONORABLE COMMISSIONERS, COMMISSION

ON ELECTIONS AND DATU ISRAEL SINSUAT, RESPONDENTS.

DECISION
NACHURA, J.:

At bar is a petition for certiorari and prohibition under Rule 65[1] of the Rules of Court filed by petitioner
Antonio B. Gunsi Sr. (Gunsi) challenging the June 9, 2005 Resolution[2] of the Commission on Elections
(COMELEC) En Banc which affirmed the October 11, 2004 Order[3] of the COMELEC Second Division.

The undisputed facts:

On January 9, 2004, private respondent Datu Israel Sinsuat (Sinsuat) filed a petition for the denial of due
course to or cancellation of the certificate of candidacy (COC) of Gunsi in connection with the May 10,
2004 Synchronized National and Local Elections. Essentially, Sinsuat sought the disqualification of Gunsi
for Mayor of South Upi, Maguindanao, alleging, that: (a) Gunsi was not a registered voter in the
Municipality of South Upi, Maguindanao since he failed to sign his application for registration; (b) Gunsi's
name was inserted illegally in the List of Applicants and Voters by Alice Lim, Acting Election Officer of
South Upi, Maguindanao; and (c) the unsigned application for registration has no legal effect.

In refutation, Gunsi asseverated that his failure to sign his application for registration did not affect the
validity of his registration since he possesses the qualifications of a voter set forth in Section 116 of the
Omnibus Election Code as amended by Section 9 of Republic Act 8189.

On March 12, 2004, after hearing, the Investigating Officer and Provincial Election Supervisor III, Lintang
H. Bedol, issued a resolution recommending Gunsi's disqualification to run for Municipal Mayor of South
Upi, Maguindanao on the ground that he is not a registered voter of the municipality. Bedol pointed out
that the signature in the application for registration is indispensable for its validity as it is an
authentication and affirmation of the data appearing therein.

On August 2, 2004, the COMELEC Second Division issued a Resolution,[4] to wit:

Although this case has become moot and academic since [Sinsuat] had been proclaimed as the winning
candidate for the position of Mayor of South Upi, Maguindanao, in connection with the May 10, 2004
Synchronized National and Local Elections, [w]e, however, cannot allow the irregularities accompanying
[Gunsi's] registration as raised by [Sinsuat] in his petition.

The absence of [Gunsi's] signature in his application for registration casts serious doubt in its preparation
and execution. It also renders the authenticity of the document questionable. In Dalumpines v. Court of
Appeals, the Supreme Court ruled that "the absence of the signature of the contracting parties on the
deed itself casts serious doubt in the preparation and execution of the deed."

In addition, the inclusion of [Gunsi's] name in the Election Registration Board's Certified List of
Applicants for Registration appears to have been added irregularly as the last name in a list of applicants
arranged alphabetically.

WHEREFORE, considering that [Gunsi] lost in the election for the position of Mayor of South Upi,
Maguindanao and the fact that [Sinsuat] was duly proclaimed as Mayor of South Upi, Maguindanao on
May 16, 2004, there being only one respondent, the instant petition is hereby DISMISSED for being moot
and academic.

The Law Department, however, is directed to investigate the alleged irregularities herein mentioned for
possible violation of election laws and to file the necessary information as the evidence warrants.

SO ORDERED.[5]

Subsequently, the same division of the COMELEC issued the herein assailed Order[6] clarifying the
August 2, 2004 Resolution, thus:

In the light, however, of the pending pre-proclamation case docketed as SPC 04-247, filed by herein
respondent, and the resolution issued by the [COMELEC] (First Division) annulling the proclamation of
[Sinsuat], the possibility that a re-canvassing of the election returns of the Municipality of South Upi,
Maguindanao is becoming more certain. Therefore, the ruling of the [COMELEC] (Second Division)
dismissing the present petition for disqualification against herein respondent for being moot and
academic becomes ineffective for the fact that, as argued by [Sinsuat] in his manifestation and
clarification, his proclamation has been annulled by the [COMELEC] (First Division).

It is therefore, incumbent upon the [COMELEC] (Second Division) to issue a categorical ruling based on
its finding as already articulated in the August 2, 2004 resolution.
xxxx

In accordance with the above finding of the [COMELEC] (Second Division) it is [o]ur resolve that
[petitioner] Antonio B. Gunsi, Sr. is disqualified to run as Mayor of South Upi, Maguindanao for being a
non-registered resident of the same municipality.

WHEREFORE, premises considered, the [COMELEC] (Second Division), hereby, clarifies its August 2, 2004
resolution by declaring that, in accordance with the findings of the [COMELEC] (Second Division) in the
promulgated resolution, [petitioner] Antonio B. Gunsi, Sr. is hereby DISQUALIFIED to run as Mayor of
South Upi, Maguindanao for being a non-registered resident of the same.

SO ORDERED.[7]

Upon motion for reconsideration of Gunsi, the COMELEC En Banc issued the herein assailed Resolution:
[8]

A perusal of the motion for reconsideration would show that the respondent failed to raise any new
material issue. All matters raised in the Motion had already been traversed and resolved in the
Recommendation of Provincial Election Supervisor Lintang Bedol dated March 12, 2004 and the
Resolution of this Commission (Second Division) promulgated last August 2, 2004 as clarified by its Order
dated October 11, 2004.

WHEREFORE, premises considered, the MOTION FOR RECONSIDERATION is hereby DENIED. The ORDER
dated October 11, 2004 is AFFIRMED.

SO ORDERED.[9]

Hence, this petition imputing grave abuse of discretion to the COMELEC. Gunsi posits the following
issues for our resolution:

WHETHER OR NOT THE HONORABLE COMMISSION HAS JURISDICTION OVER CASES INVOLVING THE
RIGHT TO VOTE.
GRANTING FOR THE SAKE OF ARGUMENT THAT THE HONORABLE COMMISSION HAS JURISDICTION,
WHETHER OR NOT THE HONORABLE SECOND DIVISION CAN CLARIFY ITS RESOLUTION AFTER SIXTY-NINE
(69) DAYS FROM ITS PROMULGATION OR AFTER IT HAS BECOME FINAL AND EXECUTORY.

GRANTING FOR THE SAKE OF ARGUMENT THAT THE HONORABLE COMMISSION HAS JURISDICTION,
WHETHER OR NOT THE HONORABLE COMMISSION COMMITTED SERIOUS ERRORS WHICH IS
TANTAMOUNT TO GRAVE ABUSE OF DISCRETION.

GRANTING FOR THE SAKE OF ARGUMENT THAT THE HONORABLE COMMISSION HAS JURISDICTION,
WHETHER OR NOT THE HONORABLE COMMISSION IS CORRECT WHEN IT DISQUALIFIED [GUNSI] TO RUN
AS MAYOR OF SOUTH UPI, MAGUINDANAO FOR BEING A NON REGISTERED RESIDENT OF THE SAME DUE
TO HIS INADVERTENT FAILURE TO AFFIX HIS SIGNATURE OVER HIS HANDWRITTEN NAME IN THE SPACE
PROVIDED THEREFOR IN HIS APPLICATION FOR REGISTRATION PERSONALLY FILLED UP, SWORN TO AN
ADMINISTERING OFFICER AND DULY FILED WITH THE COMELEC.[10]

At the outset, we note that the term of office of Mayor of South Upi, Maguindanao, for which position
Gunsi was disqualified by the COMELEC to run as a candidate had long expired on June 30, 2007
following the last elections held on May 14 of the same year. The expiration of term, therefore, is a
supervening event which renders this case moot and academic.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical value. As a rule, courts
decline jurisdiction over such case, or dismiss it on ground of mootness.[11]

The rule, however, admits of exceptions. Thus, courts may choose to decide cases otherwise moot and
academic if: first, there is a grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar and the public; or fourth, the case is
capable of repetition yet evasive of review.[12] None of the foregoing exceptions calling for this Court to
exercise jurisdiction obtains in this instance.

In any event, upon a perusal of the merits or lack thereof, the petition is clearly dismissible.
Gunsi insists that he possessed the qualifications to run for Mayor of South Upi, Maguindanao;
specifically, he claims that he was a registered voter at the time he filed his COC. Gunsi is adamant that
his mere failure to affix his signature to the application for registration, which he accomplished
personally before Joel Ellano, COMELEC Administering Officer, did not necessarily invalidate his
application for registration. Consequently, Gunsi maintains that he is a registered voter, especially
considering that his name appears in the Registry List of Voters. In all, Gunsi avers that his COC should
not have been cancelled; ultimately, he should not have been disqualified from running as Mayor of
South Upi, Maguindanao.

We are not convinced. Gunsi's arguments are annihilated by Section 10 of Republic Act No. 8189,[13]
The Voter's Registration Act of 1996, which explicitly provides in pertinent part:

SECTION 10. Registration of Voters. - A qualified voter shall be registered in the permanent list of voters
in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register
as a voter, he shall personally accomplish an application form for registration as prescribed by the
Commission in three (3) copies before the Election Officer on any date during office hours after having
acquired the qualifications of a voter.

xxxx

x x x The application for registration shall contain three (3) specimen signatures of the applicant, clear
and legible rolled prints of his left and right thumbprints, with four identification size copies of his latest
photograph, attached thereto, to be taken at the expense of the Commission.[14]

In stark contrast are the prevailing circumstances of Gunsi's application for registration:

Only a photocopy[15] of Gunsi's application for registration was submitted in evidence before
Investigating Officer Bedol as the original thereof was purportedly lost. The photocopy of the document
clearly shows that Gunsi failed to sign parts 2 and 3 thereof. The administering officer, Joel Ellano,
likewise did not sign part 3 of said document. These parts refer to the oath which Gunsi should have
taken to validate and swear to the veracity of the contents appearing in the application for registration.

Joel Ellano was not presented by Gunsi to corroborate his claim that his failure to sign the application
was merely due to inadvertence. Surprisingly, Gunsi chose to present, as witness, Alice Lim, Acting
Election Officer of South Upi, Maguindanao, who admitted that she received an unsigned letter
furnishing her a copy of Gunsi's unsigned application for registration and that she did not bother
requiring Gunsi to accomplish in full the application for registration in order to complete the List of
Voters.[16] Lim likewise admits to inserting Gunsi's name in the List of Voters based on the photocopy of
an unsigned application for registration which she had previously seen. Hence, the listing of the
Applicants for Registration and the Lists of Voters which are alphabetically arranged with Gunsi's name
inserted thereat.[17]

The testimonies of Noraida Enero, Rowena Unson and Abdullah Mato, Municipal Treasurer of Upi,
members of the Election Registration Board of South Upi, Maguindanao, who all categorically stated that
they did not encounter Gunsi's application for registration.[18]

Plainly, from the foregoing, the irregularities surrounding Gunsi's application for registration eloquently
proclaim that he did not comply with the minimum requirements of RA No. 8189. This leads to only one
conclusion: that Gunsi, not having demonstrated that he duly accomplished an application for
registration, is not a registered voter. In short, the cancellation of Gunsi's COC by the COMELEC and his
consequent disqualification from running as Mayor of South Upi, Maguindanao, was correct.

WHEREFORE, premises considered, the petition is hereby DISMISSED. The COMELEC Order and
Resolution dated October 11, 2004 and June 9, 2005 are AFFIRMED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING

Associate Justice
(on official leave)

CONSUELO YNARES-SANTIAGO

Associate Justice

ANTONIO T. CARPIO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

(on official leave)

DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

(on official leave)

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

686 Phil. 571

EN BANC

[ G.R. No. 192791, April 24, 2012 ]

DENNIS A. B. FUNA, PETITIONER, VS. THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A.

VILLAR, RESPONDENT.

DECISION

VELASCO JR., J.:

In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on Audit and
accordingly prays that a judgment issue “declaring the unconstitutionality” of the appointment.

The facts of the case are as follows:

On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed

Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of seven (7)
years, pursuant to the 1987 Constitution.[1] Carague’s term of office started on February 2, 2001 to end
on February 2, 2008.

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as the
third member of the COA for a term of seven (7) years starting February 2, 2004 until February 2, 2011.

Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008.
Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, on June 11, 2008, the Commission on Appointments confirmed his appointment. He was to
serve as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the
original term of his office as COA Commissioner or on February 2, 2011. Challenged in this recourse,
Villar, in an obvious bid to lend color of title to his hold on the chairmanship, insists that his appointment
as COA Chairman accorded him a fresh term of seven (7) years which is yet to lapse. He would argue, in
fine, that his term of office, as such chairman, is up to February 2, 2015, or 7 years reckoned from
February 2, 2008 when he was appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA Commissioner to
serve the unexpired term of Villar as Commissioner or up to February 2, 2011.

Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention to step down from office upon the appointment of
his replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III
named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this
petition and the main issue tendered therein moot and academic.
A case is considered moot and academic when its purpose has become stale,[2] or when it ceases to
present a justiciable controversy owing to the onset of supervening events,[3] so that a resolution of the
case or a declaration on the issue would be of no practical value or use.[4] In such instance, there is no
actual substantial relief which a petitioner would be entitled to, and which will anyway be negated by
the dismissal of the basic petition.[5] As a general rule, it is not within Our charge and function to act
upon and decide a moot case. However, in David v. Macapagal-Arroyo,[6] We acknowledged and
accepted certain exceptions to the issue of mootness, thus:

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts
in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution, second, the exceptional character of the situation and the paramount
public interest is involved, third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public, and fourth, the case is capable of repetition yet
evading review.

Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of
Villar, We consider the instant case as falling within the requirements for review of a moot and academic
case, since it asserts at least four exceptions to the mootness rule discussed in David, namely: there is a
grave violation of the Constitution; the case involves a situation of exceptional character and is of
paramount public interest; the constitutional issue raised requires the formulation of controlling
principles to guide the bench, the bar and the public; and the case is capable of repetition yet evading
review.[7] The situation presently obtaining is definitely of such exceptional nature as to necessarily call
for the promulgation of principles that will henceforth “guide the bench, the bar and the public” should
like circumstance arise. Confusion in similar future situations would be smoothed out if the contentious
issues advanced in the instant case are resolved straightaway and settled definitely. There are times
when although the dispute has disappeared, as in this case, it nevertheless cries out to be addressed. To
borrow from Javier v. Pacificador,[8] “Justice demands that we act then, not only for the vindication of
the outraged right, though gone, but also for the guidance of and as a restraint in the future.”

Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes down
to the question of whether or not the following requisites for the exercise of judicial review of an
executive act obtain in this petition, viz: (1) there must be an actual case or justiciable controversy before
the court; (2) the question before it must be ripe for adjudication; (3) the person challenging the act
must be a proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity
and must be the very litis mota of the case.[9]
To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a
taxpayer and citizen, lacks the necessary standing to challenge his appointment.[10] On the other hand,
the Office of the Solicitor General (OSG), while recognizing the validity of Villar’s appointment for the
period ending February 11, 2011, has expressed the view that petitioner should have had filed a petition
for declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court
instead of certiorari under Rule 65.

Villar’s posture on the absence of some of the mandatory requisites for the exercise by the Court of its
power of judicial review must fail. As a general rule, a petitioner must have the necessary personality or
standing (locus standi) before a court will recognize the issues presented. In Integrated Bar of the
Philippines v. Zamora, We defined locus standi as:

x x x a personal and substantial interest in the case such that the party has sustained or will sustain a
direct injury as a result of the governmental act that is being challenged. The term “interest” means a
material interest, an interest in issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest. The gist of the question of standing is whether a party
alleges “such personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.”[11]

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a “direct
injury” as a result of a government action, or have a “material interest” in the issue affected by the
challenged official act.[12] However, the Court has time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not otherwise directly injured, or with material
interest affected, by a Government act, standing to sue provided a constitutional issue of critical
significance is at stake.[13] The rule on locus standi is after all a mere procedural technicality in relation
to which the Court, in a catena of cases involving a subject of transcendental import, has waived, or
relaxed, thus allowing non- traditional plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may not have been personally injured by the
operation of a law or any other government act.[14] In David, the Court laid out the bare minimum
norm before the so-called “non-traditional suitors” may be extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;

3.) For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives
as legislators.

This case before Us is of transcendental importance, since it obviously has “far-reaching implications,”
and there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous
cases. We, thus, assume a liberal stance and allow petitioner to institute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of the
availment of certiorari as a medium to inquire on whether the assailed appointment of respondent Villar
as COA Chairman infringed the constitution or was infected with grave abuse of discretion. For under the
expanded concept of judicial review under the 1987 Constitution, the corrective hand of certiorari may
be invoked not only “to settle actual controversies involving rights which are legally demandable and
enforceable,” but also “to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.”[15] “Grave abuse of discretion” denotes:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act in contemplation of law.[16]

We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse of
discretion.
This brings Us to the pivotal substantive issue of whether or not Villar’s appointment as COA Chairman,
while sitting in that body and after having served for four (4) years of his seven (7) year term as COA
commissioner, is valid in light of the term limitations imposed under, and the circumscribing concepts
tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, one commissioner for five years, and the other
commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In no case shall any member be appointed or
designated in a temporary or acting capacity. (Emphasis added.)[17]

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined restricting features in the
matter of the composition of COA and the appointment of its members (commissioners and chairman)
designed to safeguard the independence and impartiality of the commission as a body and that of its
individual members.[18] These are, first, the rotational plan or the staggering term in the commission
membership, such that the appointment of commission members subsequent to the original set
appointed after the effectivity of the 1987 Constitution shall occur every two years; second, the
maximum but a fixed term-limit of seven (7) years for all commission members whose appointments
came about by reason of the expiration of term save the aforementioned first set of appointees and
those made to fill up vacancies resulting from certain causes; third, the prohibition against
reappointment of commission members who served the full term of seven years or of members first
appointed under the Constitution who served their respective terms of office; fourth, the limitation of
the term of a member to the unexpired portion of the term of the predecessor; and fifth, the
proscription against temporary appointment or designation.

To elucidate on the mechanics of and the adverted limitations on the matter of COA-member
appointments with fixed but staggered terms of office, the Court lays down the following postulates
deducible from pertinent constitutional provisions, as construed by the Court:

1. The terms of office and appointments of the first set of commissioners, or the seven, five and three-
year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had already expired. Hence, their
respective terms of office find relevancy for the most part only in understanding the operation of the
rotational plan. In Gaminde v. Commission on Audit,[19] the Court described how the smooth
functioning of the rotational system contemplated in said and like provisions covering the two other
independent commissions is achieved thru the staggering of terms:

x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional Commissions under the
1987 Constitution must start on a common date [February 02, 1987, when the 1987 Constitution was
ratified] irrespective of the variations in the dates of appointments and qualifications of the appointees
in order that the expiration of the first terms of seven, five and three years should lead to the regular
recurrence of the two-year interval between the expiration of the terms.

x x x In case of a belated appointment, the interval between the start of the terms and the actual
appointment shall be counted against the appointee.[20] (Italization in the original; emphasis added.)

Early on, in Republic v. Imperial,[21] the Court wrote of two conditions, “both indispensable to [the]
workability” of the rotational plan. These conditions may be described as follows: (a) that the terms of
the first batch of commissioners should start on a common date; and (b) that any vacancy due to death,
resignation or disability before the expiration of the term should be filled only for the unexpired balance
of the term. Otherwise, Imperial continued, “the regularity of the intervals between appointments
would be destroyed.” There appears to be near unanimity as to the purpose/s of the rotational system,
as originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two
years presently), thus preventing a four-year administration appointing more than one permanent and
regular commissioner,[22] or to borrow from Commissioner Monsod of the 1986 CONCOM, “to prevent
one person (the President of the Philippines) from dominating the commissions.”[23] It has been
declared too that the rotational plan ensures continuity in, and, as indicated earlier, secure the
independence of, the commissions as a body.[24]

2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first
chairman and commissioners appointed under the 1987 Constitution have bowed out, shall, by express
constitutional fiat, be for a term of seven (7) years, save when the appointment is to fill up a vacancy for
the corresponding unserved term of an outgoing member. In that case, the appointment shall only be for
the unexpired portion of the departing commissioner’s term of office. There can only be an unexpired
portion when, as a direct result of his demise, disability, resignation or impeachment, as the case may
be, a sitting member is unable to complete his term of office.[25] To repeat, should the vacancy arise out
of the expiration of the term of the incumbent, then there is technically no unexpired portion to speak
of. The vacancy is for a new and complete seven-year term and, ergo, the appointment thereto shall in
all instances be for a maximum seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the “reappointment” of a member of COA after
his appointment for seven (7) years. Writing for the Court in Nacionalista Party v. De Vera,[26] a case
involving the promotion of then COMELEC Commissioner De Vera to the position of chairman, then Chief
Justice Manuel Moran called attention to the fact that the prohibition against “reappointment” comes as
a continuation of the requirement that the commissioners––referring to members of the COMELEC
under the 1935 Constitution––shall hold office for a term of nine (9) years. This sentence formulation
imports, notes Chief Justice Moran, that reappointment is not an absolute prohibition.

4. The adverted system of regular rotation or the staggering of appointments and terms in the
membership for all three constitutional commissions, namely the COA, Commission on Elections
(COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution was patterned after the
amended 1935 Constitution for the appointment of the members of COMELEC[27] with this difference:
the 1935 version entailed a regular interval of vacancy every three (3) years, instead of the present two
(2) years and there was no express provision on appointment to any vacancy being limited to the
unexpired portion of the his predecessor’s term. The model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections composed of a Chairman and two
other members to be appointed by the President with the consent of the Commission on Appointments,
who shall hold office for a term of nine years and may not be reappointed. Of the Members of the
Commission first appointed, one shall hold office for nine years, another for six years and the third for
three years. x x x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be it for
the same position (commissioner to another position of commissioner) or upgraded position
(commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is drawn
in this regard to the Court’s disposition in Matibag v. Benipayo.[28]

Villar’s promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a different
office and requiring another confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2), Article
IX(D) of the Constitution on the ban against reappointment in relation to the appointment issued to
respondent Villar to the position of COA Chairman.

Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner
contends that Villar’s appointment is proscribed by the constitutional ban on reappointment under the
aforecited constitutional provision. On the other hand, respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same provision.

The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word
“reappointment” as, in context, embracing any and all species of appointment.

The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation.[29] This is known as the plain
meaning rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute
there should be no departure.[30]

The primary source whence to ascertain constitutional intent or purpose is the language of the provision
itself.[31] If possible, the words in the Constitution must be given their ordinary meaning, save where
technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal
legis rule in this wise:

We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as possible
should be understood in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus there are cases where the need
for construction is reduced to a minimum.[32] (Emphasis supplied.)

Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, one commissioner for five years, and the other
commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. x x x (Emphasis added.)

The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a
term of seven years, and if he has served the full term, then he can no longer be reappointed or
extended another appointment. In the same vein, a Commissioner who was appointed for a term of
seven years who likewise served the full term is barred from being reappointed. In short, once the
Chairman or Commissioner shall have served the full term of seven years, then he can no longer be
reappointed to either the position of Chairman or Commissioner. The obvious intent of the framers is to
prevent the president from “dominating” the Commission by allowing him to appoint an additional or
two more commissioners.

The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred
reappointment to be extended to commissioner-members first appointed under the 1987 Constitution to
prevent the President from controlling the commission. Thus, the first Chairman appointed under the
1987 Constitution who served the full term of seven years can no longer be extended a reappointment.
Neither can the Commissioners first appointed for the terms of five years and three years be eligible for
reappointment. This is the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D).

On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven years,
further qualified by the third sentence of Sec. 1(2), Article IX (D) that “the appointment to any vacancy
shall be only for the unexpired portion of the term of the predecessor.” In addition, such promotional
appointment to the position of Chairman must conform to the rotational plan or the staggering of terms
in the commission membership such that the aggregate of the service of the Commissioner in said
position and the term to which he will be appointed to the position of Chairman must not exceed seven
years so as not to disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated circumstances
or conditions.
It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional appointment from Commissioner to Chairman. Even if We concede the existence of an
ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.[33] teaches that in case of doubt
as to the import and react of a constitutional provision, resort should be made to extraneous aids of
construction, such as debates and proceedings of the Constitutional Convention, to shed light on and
ascertain the intent of the framers or the purpose of the provision being construed.

The understanding of the Convention as to what was meant by the terms of the constitutional provision
which was the subject of the deliberation goes a long way toward explaining the understanding of the
people when they ratified it. The Court applied this principle in Civil Liberties Union v. Executive
Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to
that reason and calculated to effect that purpose.[34] (Emphasis added.)

And again in Nitafan v. Commissioner on Internal Revenue:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.[35] (Emphasis added.)

Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where a commissioner is upgraded
to the position of chairman, the 1987 Constitution in fact unequivocally allows promotional
appointment, but subject to defined parameters. The ensuing exchanges during the deliberations of the
1986 Constitutional Commission (CONCOM) on a draft proposal of what would eventually be Sec. 1(2),
Art. IX(D) of the present Constitution amply support the thesis that a promotional appointment is
allowed provided no one may be in the COA for an aggregate threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the sentence
which begins with “In no case,” insert THE APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD
OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the situation wherein a
commissioner is first appointed as chairman. I am willing to withdraw that amendment if there is a
representation on the part of the Committee that there is an implicit intention to prohibit a term that in
the aggregate will exceed more than seven years. If that is the intention, I am willing to withdraw my
amendment.

MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way somebody can serve for more than
seven years. The purpose of the last sentence is to make sure that this does not happen by including in
the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein
a commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind
of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: “Appointment to any
vacancy shall be only for the unexpired portion of the predecessor.” In other words, if there is upgrading
of position from commissioner to chairman, the appointee can serve only the unexpired portion of the
term of the predecessor.

MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he serves
only the unexpired portion of the term of the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion of
the term of the predecessor. (Emphasis added.)[36]

The phrase “upgrading of position” found in the underscored portion unmistakably shows that Sec. 1(2),
Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not per se preclude, in
any and all cases, the promotional appointment or upgrade of a commissioner to chairman, subject to
this proviso: the appointee’s tenure in office does not exceed 7 years in all. Indeed, such appointment
does not contextually come within the restricting phrase “without reappointment” twice written in that
section. Delegate Foz even cautioned, as a matter of fact, that a sitting commissioner accepting a
promotional appointment to fill up an unexpired portion pertaining to the higher office does so at the
risk of shortening his original term. To illustrate the Foz’s concern: assume that Carague left COA for
reasons other than the expiration of his threshold 7-year term and Villar accepted an appointment to fill
up the vacancy. In this situation, the latter can only stay at the COA and served the unexpired portion of
Carague’s unexpired term as departing COA Chairman, even if, in the process, his (Villar’s) own 7-year
term as COA commissioner has not yet come to an end. In this illustration, the inviolable regularity of the
intervals between appointments in the COA is preserved.

Moreover, jurisprudence tells us that the word “reappointment” means a second appointment to one
and the same office.[37] As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent in Visarra v.
Miraflor,[38] the constitutional prohibition against the reappointment of a commissioner refers to his
second appointment to the same office after holding it for nine years.[39] As Justice Dizon observed,
“[T]he occupant of an office obviously needs no such second appointment unless, for some valid cause,
such as the expiration of his term or resignation, he had ceased to be the legal occupant thereof.” [40]
The inevitable implication of Justice Dizon’s cogent observation is that a promotion from commissioner
to chairman, albeit entailing a second appointment, involves a different office and, hence, not, in the
strict legal viewpoint, a reappointment. Stated a bit differently, “reappointment” refers to a movement
to one and the same office. Necessarily, a movement to a different position within the commission (from
Commissioner to Chairman) would constitute an appointment, or a second appointment, to be precise,
but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista,
although he expressly alluded to a promotional appointment as not being a prohibited appointment
under Art. X of the 1935 Constitution.
Petitioner’s invocation of Matibag as additional argument to contest the constitutionality of Villar’s
elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo
appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino
Tuason as Commissioners, each for a term of office of seven (7) years. All three immediately took their
oath of, and assumed, office. These appointments were twice renewed because the Commission on
Appointments failed to act on the first two ad interim appointments. Via a petition for prohibition, some
disgruntled COMELEC officials assail as infirm the appointments of Benipayo, et al.

Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific,
where the proviso “[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven
years without reappointment” shall apply. Justice Antonio T. Carpio declares in his dissent that Villar’s
appointment falls under a combination of two of the four situations.

Conceding for the nonce the correctness of the premises depicted in the situations referred to in
Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a different
milieu, but the lis mota of the case, as expressly declared in the main opinion, “is the very constitutional
issue raised by petitioner.”[41] And what is/are this/these issue/s? Only two defined issues in Matibag
are relevant, viz: (1) the nature of an ad interim appointment and subsumed thereto the effect of a by-
passed ad interim appointment; and (2) the constitutionality of renewals of ad interim appointments.
The opinion defined these issues in the following wise: “Petitioner [Matibag] filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason as
Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim
appointments of Benipayo, et al. violate the constitutional provisions on the independence of COMELEC,
as well as on the prohibitions on temporary appointments and reappointments of its Chairman and
members.” As may distinctly be noted, an upgrade or promotion was not in issue in Matibag.

We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged, the
uniform proviso on no reappointment––after a member of any of the three constitutional commissions
is appointed for a term of seven (7) years––shall apply. Matibag made the following formulation:

The first situation is where an ad interim appointee after confirmation by the Commission on
Appointments serves his full 7-year term. Such person cannot be reappointed whether as a member or
as chairman because he will then be actually serving more than seven (7) years.
The second situation is where the appointee, after confirmation, serves 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 chair to a vacancy arising from retirement because a reappointment will result in the appointee
serving more than seven years.

The third situation is where the appointee is confirmed to serve the unexpired portion of someone who
died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed
whether as a member or as chair to a vacancy arising from retirement because a reappointment will
result in the appointee also serving more than seven (7) years.

The fourth situation is where the appointee has previously served a term of less than seven (7) 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 Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of appointees (the 5 and 3 year termers) whose term of office are
less than 7 years but are barred from being reappointed under any situation].”[42] (Words in brackets
and emphasis supplied.)

The situations just described constitute an obiter dictum, hence without the force of adjudication, for
the corresponding formulation of the four situations was not in any way necessary to resolve any of the
determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the decision of
the case or one expressed upon a point not necessarily involved in the determination of the case is an
obiter.[43]

There can be no serious objection to the scenarios depicted in the first, second and third situations, both
hewing with the proposition that no one can stay in any of the three independent commissions for an
aggregate period of more than seven (7) years. The fourth situation, however, does not commend itself
for concurrence inasmuch as it is basically predicated on the postulate that reappointment, as earlier
herein defined, of any kind is prohibited under any and all circumstances. To reiterate, the word
“reappointment” means a second appointment to one and the same office; and Sec. 1(2), Art. IX(D) of
the 1987 Constitution and similar provisions do not peremptorily prohibit the promotional appointment
of a commissioner to chairman, provided the new appointee’s tenure in both capacities does not exceed
seven (7) years in all. The statements in Matibag enunciating the ban on reappointment in the
aforecited fourth situation, perforce, must be abandoned, for, indeed, a promotional appointment from
the position of Commissioner to that of Chairman is constitutionally permissible and not barred by Sec.
1(2), Art. IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve
the independence of COA and its members,[44] citing what the dissenting Justice J.B.L Reyes wrote in
Visarra, that once appointed and confirmed, the commissioners should be free to act as their conscience
demands, without fear of retaliation or hope or reward. Pursued to its logical conclusion, petitioner’s
thesis is that a COA member may no longer act with independence if he or she can be rewarded with a
promotion or appointment, for then he or she will do the bidding of the appointing authority in the hope
of being promoted or reappointed.

The unstated reason behind Justice J.B.L. Reyes’ counsel is that independence is really a matter of
choice. Without taking anything away from the gem imparted by the eminent jurist, what Chief Justice
Moran said on the subject of independence is just as logically sound and perhaps even more compelling,
as follows:

A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other
hope of material reward, his enthusiasm may decline as the end of his term approaches and he may
even lean to abuses if there is no higher restrain in his moral character. Moral character is no doubt the
most effective safeguard of independence. With moral integrity, a commissioner will be independent
with or without the possibility of reappointment.[45]

The Court is likewise unable to sustain Villar’s proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7- year term––from February 2008 to February 2015––given his
four (4)-year tenure as COA commissioner devalues all the past pronouncements made by this Court,
starting in De Vera, then Imperial, Visarra, and finally Matibag. While there had been divergence of
opinion as to the import of the word “reappointment,” there has been unanimity on the dictum that in
no case can one be a COA member, either as chairman or commissioner, or a mix of both positions, for
an aggregate term of more than 7 years. A contrary view would allow a circumvention of the aggregate
7-year service limitation and would be constitutionally offensive as it would wreak havoc to the spirit of
the rotational system of succession. Imperial, passing upon the rotational system as it applied to the
then organizational set-up of the COMELEC, stated:

The provision that of the first three commissioners appointed “one shall hold office for 9 years, another
for 6 years and the third for 3 years,” when taken together with the prescribed term of office for 9 years
without reappointment, evinces a deliberate plan to have a regular rotation or cycle in the membership
of the commission, by having subsequent members appointable only once every three years.[46]
To be sure, Villar’s appointment as COA Chairman partakes of a promotional appointment which, under
appropriate setting, would be outside the purview of the constitutional reappointment ban in Sec 1(2),
Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing in the
underlying appointment paper, ought still to be struck down as unconstitutional for the reason as shall
be explained.

Consider:

In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA
member shall be for a fixed 7-year term if the vacancy results from the expiration of the term of the
predecessor. We reproduce in its pertinent part the provision referred to:

(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven years
without reappointment. x x x Appointment to any vacancy shall be only for the unexpired portion of the
term of the predecessor. x x x

Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less than
seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can be no
denying that the vacancy in the position of COA chairman when Carague stepped down in February 2,
2008 resulted from the expiration of his 7-year term. Hence, the appointment to the vacancy thus
created ought to have been one for seven (7) years in line with the verbal legis approach[47] of
interpreting the Constitution. It is to be understood, however, following Gaminde, that in case of a
belated appointment, the interval between the start of the term and the actual appointment shall be
counted against the 7-year term of the appointee. Posing, however, as an insurmountable barrier to a
full 7-year appointment for Villar is the rule against one serving the commission for an aggregate term of
more than seven (7) years.

Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official, the
appointing authority is without authority to specify in the appointment a term shorter or longer than
what the law provides. If the vacancy calls for a full seven-year appointment, the President is without
discretion to extend a promotional appointment for more or for less than seven (7) years. There is no in
between. He or she cannot split terms. It is not within the power of the appointing authority to override
the positive provision of the Constitution which dictates that the term of office of members of
constitutional bodies shall be seven (7) years.[48] A contrary reasoning “would make the term of office
to depend upon the pleasure or caprice of the [appointing authority] and not upon the will [of the
framers of the Constitution] of the legislature as expressed in plain and undoubted language in the
law.”[49]

In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7- year appointment, as the Constitution decrees, was not
legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as
COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the
corresponding appointment would effectively breach the clear purpose of the Constitution of giving to
every appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7
years. To recapitulate, a COA commissioner like respondent Villar who serves for a period less than
seven (7) years cannot be appointed as chairman when such position became vacant as a result of the
expiration of the 7-year term of the predecessor (Carague). Such appointment to a full term is not valid
and constitutional, as the appointee will be allowed to serve more than seven (7) years under the
constitutional ban.

On the other hand, a commissioner who resigned before serving his 7- year term can be extended an
appointment to the position of chairman for the unexpired period of the term of the latter, provided the
aggregate of the period he served as commissioner and the period he will serve as chairman will not
exceed seven (7) years. This situation will only obtain when the chairman leaves the office by reason of
death, disability, resignation or impeachment. Let us consider, in the concrete, the situation of then
Chairman Carague and his successor, Villar. Carague was appointed COA Chairman effective February 2,
2001 for a term of seven (7) years, or up to February 2, 2008. Villar was appointed as Commissioner on
February 2, 2004 with a 7-year term to end on February 2, 2011. If Carague for some reason vacated the
chairmanship in 2007, then Villar can resign as commissioner in the same year and later be appointed as
chairman to serve only up to February 2, 2008, the end of the unexpired portion of Carague’s term. In
this hypothetical scenario, Villar’s appointment to the position of chairman is valid and constitutional as
the aggregate periods of his two (2) appointments will only be five (5) years which neither distorts the
rotational scheme nor violates the rule that the sum total of said appointments shall not exceed seven
(7) years. Villar would, however, forfeit two (2) years of his original seven (7)-year term as Commissioner,
since, by accepting an upgraded appointment to Carague’s position, he agreed to serve the unexpired
portion of the term of the predecessor. As illustrated earlier, following Mr. Foz’s line, if there is an
upgrading of position from commissioner to chairman, the appointee takes the risk of cutting short his
original term, knowing pretty well before hand that he will serve only the unexpired portion of the term
of his predecessor, the outgoing COA chairman.
In the extreme hypothetical situation that Villar vacates the position of chairman for causes other than
the expiration of the original term of Carague, the President can only appoint the successor of Villar for
the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the
expiration of the original 7-year term of Carague, the President can appoint a new chairman for a term of
seven (7) full years.

In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the view
that the promotional appointment of a sitting commissioner is plausible only when he is appointed to
the position of chairman for the unexpired portion of the term of said official who leaves the office by
reason of any the following reasons: death, disability, resignation or impeachment, not when the
vacancy arises out as a result of the expiration of the 7-year term of the past chairman. There is nothing
in the Constitution, so Justice Mendoza counters, that restricts the promotion of an incumbent
commissioner to the chairmanship only in instances where the tenure of his predecessor was cut short
by any of the four events referred to. As earlier explained, the majority view springs from the interplay
of the following premises: The explicit command of the Constitution is that the “Chairman and the
Commissioners shall be appointed by the President x x x for a term of seven years [and] appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor.” To repeat, the
President has two and only two options on term appointments. Either he extends an appointment for a
full 7-year term when the vacancy results from the expiration of term, or for a shorter period
corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of death,
physical disability, resignation or impeachment. If the vacancy calls for a full seven-year appointment,
the Chief Executive is barred from extending a promotional appointment for less than seven years. Else,
the President can trifle with terms of office fixed by the Constitution.

Justice Mendoza likewise invites attention to an instance in history when a commissioner had been
promoted chairman after the expiration of the term of his predecessor, referring specifically to the
appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after the
expiration of the latter’s term in 1959 as COMELEC chairman. Such appointment to the position of
chairman is not constitutionally permissible under the 1987 Constitution because of the policy and
intent of its framers that a COA member who has served his full term of seven (7) years or even for a
shorter period can no longer be extended another appointment to the position of chairman for a full
term of seven (7) years. As revealed in the deliberations of the Constitutional Commission that crafted
the 1987 Constitution, a member of COA who also served as a commissioner for less than seven (7) years
in said position cannot be appointed to the position of chairman for a full term of seven (7) years since
the aggregate will exceed seven (7) years. Thus, the adverted Garcia appointment in 1959 made under
the 1935 Constitution cannot be used as a precedent to an appointment of such nature under the 1987
Constitution. The dissent further notes that the upgrading remained uncontested. In this regard, suffice
it to state that the promotion in question was either legal or it was not. If it were not, no amount of
repetitive practices would clear it of invalidating taint.
Lastly, Villar’s appointment as chairman ending February 2, 2011 which Justice Mendoza considers as
valid is likewise unconstitutional, as it will destroy the rationale and policy behind the rotational system
or the staggering of appointments and terms in COA as prescribed in the Constitution. It disturbs in a
way the staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution.
Consider: If Villar’s term as COA chairman up to February 2, 2011 is viewed as valid and constitutional as
espoused by my esteemed colleague, then two vacancies have simultaneously occurred and two (2) COA
members going out of office at once, opening positions for two (2) appointables on that date as
Commissioner San Buenaventura’s term also expired on that day. This is precisely one of the mischiefs
the staggering of terms and the regular intervals appointments seek to address. Note that San
Buenaventura was specifically appointed to succeed Villar as commissioner, meaning she merely
occupied the position vacated by her predecessor whose term as such commissioner expired on
February 2, 2011. The result is what the framers of the Constitution doubtless sought to avoid, a sitting
President with a 6-year term of office, like President Benigno C. Aquino III, appointing all or at least two
(2) members of the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as
Chairman for the term ending February 2, 2015 upon the relinquishment of the post by respondent
Villar, and Heidi Mendoza was appointed Commissioner for a 7- year term ending February 2, 2018 to
replace San Buenaventura. If Justice Mendoza’s version is adopted, then situations like the one which
obtains in the Commission will definitely be replicated in gross breach of the Constitution and in clear
contravention of the intent of its framers. Presidents in the future can easily control the Commission
depriving it of its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:

1. The appointment of members of any of the three constitutional commissions, after the expiration of
the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7)
years; an appointment for a lesser period is void and unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration
of the term as this will result in the distortion of the rotational system prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death, resignation, disability or

impeachment) shall only be for the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of
terms laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven
years and who served the entire period, are barred from reappointment to any position in the
Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered
by the prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an
appointment to the position of Chairman for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate
period of the length of service as commissioner and the unexpired period of the term of the predecessor
will not exceed seven (7) years and provided further that the vacancy in the position of Chairman
resulted from death, resignation, disability or removal by impeachment. The Court clarifies that
“reappointment” found in Sec. 1(2), Art. IX(D) means a movement to one and the same office
(Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment
involving a movement to a different position or office (Commissioner to Chairman) would constitute a
new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.

5. Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo A.
Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose
term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of Sec.
1(2), Art. IX(D) of the Constitution.

SO ORDERED.

Corona, C.J., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Perlas-
Bernabe, JJ., concur.

Carpio, J., see concurring & dissenting opinion.

Brion and Reyes, JJ., joins the opinion of J. Mendoza.

Abad, J., join the separate opinion of J.A.T. Carpio.

Mendoza, J., see concurring & dissenting opinion.

Sereno, J., join the dissent of J. Carpio.

[1] Art. IX(D), Sec. 1(2).––The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years,
and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall
be only for the unexpired portion of the term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.

[2] Joya v. PCGG, G.R. No. 96541, August 24, 1993, 225 SCRA 568.

[3] Prov. Of Batangas v. Romulo, G.R. No. 1522774, May 27, 2004, 429 SCRA 736.

[4] Go v. Sandiganbayn, G.R. Nos. 150329-30, September 11, 2007, 532 SCRA 574; citing Vda. De Davao v.
Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91 and other cases.

[5] Olanolan v. COMELEC, G.R. No. 165491, March 31, 2005, 807 SCRA 454.

[6] G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA 161.

[7] Id.

[8] G.R. Nos. 68379-81, September 22, 1986, 144 SCRA 194.

[9] Herrera, Remedial Law 96 (2000).

[10] Rollo, pp. 270, 274-275.

[11] G.R. No. 141284, August 15, 2000, 338 SCRA 81; citing Baker v. Carr, 369 U.S. 186.

[12] Id.

[13] David v. Macapagal-Arroyo, supra note 6.

[14] Abaya v. Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA 720; Agan v. Philippine
International Air Terminals Co., Inc., 450 Phil. 744 (2003); Del Mar v. PAGCOR, 400 Phil. 307 (2000).

[15] Constitution, Art. VIII, Sec. 1.

[16] Benito v. COMELEC, G.R. No. 134913, January 19, 2001, 349 SCRA 705.

[17] An identical provision is repeated for the Civil Service Commission and the COMELEC, differing only
in the case of the COMELEC as to the numerical composition and the number of appointees involved in
the staggered appointments.

[18] Republic v. Imperial, 96 Phil. 770 (1955).

[19] G.R. No. 140335, December 13, 2000, 347 SCRA 655, 662-663; citing Republic v. Imperial, supra note
18.

[20] Id.

[21] Supra note 18.

[22] Id.

[23] 1986 Constitutional Commission, Record of Proceedings and Debates, Vol. 1, pp. 574-575.

[24] Republic v. Imperial, supra note 18; Concurring Opinion of Justice Angelo Bautista in Visarra v.
Miraflor, 8 Phil. 1 (1963); Record of Proceeding and Debates, 1986 Constitutional Commission, Vol. 1, p.
585; Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49.

[25] Republic v. Imperial, supra note 18.

[26] No. L-3474, December 7, 1949, 85 SCRA 126.

[27] Gaminde v. COA, supra note 19. The COMELEC, then a 3-man body, is now composed of a Chairman
and six (6) Commissioners.

[28] G.R. No. 149036, April 2, 2002, 380 SCRA 49.

[29] Agpalo, Statutory Construction 94 (1990).

[30] Globe-Mackay Cable and Radio Corporation v. NLRC, G.R. No. 82511, March 3, 1992, 206 SCRA 701,
711.

[31] Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, G.R. Nos. 147589 & 147613, June
26, 2001, 359 SCRA 698, 724.

[32] No. L-21064, February 18, 1970, 31 SCRA 413.

[33] Id.

[34] G.R. No. 83896, February 22, 1991, 194 SCRA 317, 325.

[35] No. L-78780, July 23, 1987, 152 SCRA 284, 291-292.

[36] I Records of the Constitutional Convention Proceedings and Debates, pp. 586 et seq.; cited in
Bernas, The Intent of the 1986 Constitution Writers 591-592 (1995).

[37] Sibal, Philippine Legal Encyclopedia 826 (1995 reprint); citing Visarra v. Miraflor, supra note 24.

[38] Supra note 24.

[39] Referring to a COMELEC commissioner who was then entitled to a 9- year term of office.

[40] Visarra v. Miraflor, supra note 24, at 46.

[41] Supra note 28, at 65.

[42] Id. at 82.

[43] American Home Assurance Co. v. NLRC, 328 Phil. 606 (1996); City of Manila v. Entote, 156 Phil. 498
(1974).

[44] Rollo, p. 25.

[45] Nacionalista Party v. De Vera, supra note 26, at 136.

[46] Supra note 18, at 775.

[47] Whenever possible, the words used in the Constitution must be given their ordinary meaning,
except when technical terms are employed.

[48] See rollo, p. 315.

[49] Baker v. Kirk, 33 Ind. 517; cited in Republic v. Imperial, supra note 18.

CONCURRING AND DISSENTING OPINION

CARPIO, J.:

The appointment of respondent Reynaldo A. Villar (Villar) as Chairman of the Commission on Audit
(COA) is clearly unconstitutional.

Villar’s appointment as Chairman is a reappointment

prohibited by the Constitution

Prior to his appointment as COA Chairman, Villar was a COA Commissioner serving the fourth year of his
seven-year term. Villar’s “promotional” appointment as Chairman on 18 April 2004 constituted a
reappointment prohibited by the Constitution since it actually required another appointment by the
President to a different office, another confirmation by the Commission on Appointments to that other
office, and another oath of office to that other office. When Villar accepted the appointment as
Chairman, he necessarily had to resign beforehand as Commissioner. In short, Villar resigned as
Commissioner, and then accepted a new appointment as Chairman, his second appointment to the COA.

It is indisputable that the office of the Chairman is a different office from the office of a Commissioner.
The Chairman has a salary grade higher than that of a Commissioner, and is the presiding officer of the
Commission while a Commissioner is not. The Chairman is specifically authorized by the Constitution to
re-align savings of the Commission,[1] while a Commissioner has no such authority. The Chairman is the
head of the Commission, while a Commissioner is not,[2] in the same manner that the Chief Justice is
the head of the Judiciary while an Associate Justice is not.

Section 1(2), Article IX-D of the 1987 Constitution states:

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the
other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity. (Emphasis supplied)

The words “without reappointment” appear twice in Section 1(2) of Article IX-D, the first time in the first
sentence and the second time in the second sentence.

The counterpart provision in the 1935 Constitution uses the phrase “may not be reappointed” and the
phrase appears only once. Section 1, Article XI of the 1935 Constitution provides:

Section 1. There shall be a General Auditing Office under the direction and control of an Auditor General,
who shall hold office for a term of ten years and may not be reappointed. The Auditor General shall be
appointed by the President with the consent of the Commission on Appointments, and shall receive an
annual compensation to be fixed by law which shall not be diminished during his continuance in office.
Until the Congress shall provide otherwise, the Auditor General shall receive an annual compensation of
twelve thousand pesos. (Emphasis supplied)

To repeat, while the first sentence of Section 1, Article XI of the 1935 Constitution contains the words
“may not be reappointed,” the succeeding sentences do not. In contrast, the words “without
reappointment” appears in the first and second sentences of Section 1(2), Article IX-D of the 1987
Constitution. This difference is pivotal in the resolution of the present case.

The framers of the 1987 Constitution deliberately disallowed a situation where, in the words of
Commissioner Vicente Foz, “the appointee serves only for less than seven years, (and) would be entitled
to reappointment,” which was the “case of Visarra v. Miraflor,[3] to the effect that x x x in cases where
the appointee serves only for less than seven years, he would be entitled to reappointment.” To
specifically implement the rejection of the Visarra ruling, the framers intentionally added the words
“without reappointment” in the second sentence of Section 1(2), even though the same words already
appear in the first sentence of the same Section. This is the reason why the words “without
reappointment” appear twice in Section 1(2). Thus, the 1987 Constitution has an additional “safety
valve” compared to the 1935 Constitution.

The following exchange, during the deliberations of the Constitutional Commission, between
Commissioner Hilario G. Davide, Jr. (later Chief Justice of this Court) and Commissioner Vicente Foz,
bears out the rejection of the Visarra ruling, in particular the concurring opinion of Justice Angelo
Bautista:

MR. DAVIDE: I propose another perfecting amendment on line 29, Section 2 (2). It consists in the
deletion of the comma (,) after “years” and the words “without reappointment.”

MR. FOZ: In other words, the Gentleman is going to allow reappointment in this case.

MR. DAVIDE: No, because on line 25 there is already the phrase “without reappointment.”

MR. FOZ: Yes, but in the past, that was a source of controversy. That was one of the points raised in one
of the controversies in the Supreme Court.
MR. DAVIDE: There would be no area of controversy because it is very clear.

The Chairman and the Commissioners shall be appointed by the President for a term of seven years
without reappointment.

So, it would even apply to the first set of three commissioners.

MR. FOZ: But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case
of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or
the tenure is for seven years. But in cases where the appointee serves only for less than seven years, he
would be entitled to reappointment. Unless we put the qualifying words “without reappointment” in the
case of these appointees, then it is possible that an interpretation could be made later on that in their
case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it very clear that even in the case of those first
appointed under this Constitution, no reappointment can be had.

MR. DAVIDE: Can it not be done by a mere interpretation because it would really appear to be
repetitious? The wording itself on the first set of commissioners would clearly indicate that their term is
really for seven years, but their tenure is staggered. So, we have to distinguish between term and tenure
because the general term is really seven years. But of the first three to be appointed, the tenure of one is
seven; the tenure of the second is five; and the tenure of the third is three. But technically, the term for
which they are appointed is seven years.

MR. FOZ: The Committee regrets to say that we cannot accept the amendment.

MR. DAVIDE: May I submit it to a vote, Mr. Presiding Officer.

VOTING
xxx

The results show 2 votes in favor and 21 against[;] the amendment is lost.[4] (Emphasis supplied)

Thus, the framers of the 1987 Constitution added the words “without reappointment” in the second
sentence of Section 1(2) of Article IX-D precisely to overturn Visarra, in particular the concurring opinion
of Justice Bautista. The foregoing exchange between Commissioners Davide and Foz clearly proves that
the framers specifically added the words “without reappointment” twice precisely to foreclose the
possibility of an appointee, who has served for less than seven years, being reappointed to complete a
seven-year term.

This Court can no longer resurrect Visarra because the 1987 Constitution itself has rejected Visarra,
particularly, in the words of Commissioner Foz, “the concurring opinion of Justice Angelo Bautista.” In his
concurring opinion, Justice Bautista concluded that “the appointment of Associate Commissioner Garcia
to Chairman of the Commission is valid.” This Court has no power to undo what the framers have so
clearly written in the Constitution. To repeat, the framers of the 1987 Constitution expressly rejected the
Visarra ruling, in particular the concurring opinion of Justice Bautista, and instead adopted the dissenting
opinions of Justices Roberto Concepcion and JBL Reyes.

Moreover, the framers of the 1987 Constitution emphatically made it clear that the words “without
reappointment” apply to a promotional appointment, or a situation where “a commissioner is upgraded
to a position of chairman.” The following exchange among Commissioners Felicitas Aquino, Christian
Monsod, and Foz clearly established this:

MS. AQUINO: Thank you.

In the same paragraph, I would propose an amendment by addition on page 2, line 31 between the
period (.) after the word ‘predecessor’ and the sentence which begins with ‘In no case,’ THE APPOINTEE
SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this
may approximate the situation wherein a commissioner is first appointed as an ordinary commissioner
and later on appointed as chairman. I am willing to withdraw that amendment if there is an implicit
intention to prohibit a term that in the aggregate will exceed more than seven years.
MR. MONSOD: If the Gentleman will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities.

MS. AQUINO: Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein
a commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind
of situation, then I am willing to withdraw my amendment.

MR. MONSOD: It is covered.

MR. FOZ: There is a provision on line 29 precisely to cover that situation. It states: ‘Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor.’ In other words, if there is
upgrading of position from commissioner to chairman, the appointee can only serve the unexpired
portion of the term of the predecessor.

MS. AQUINO: But we have to very specific about it; the provision does not still account for that kind of
situation because in effect, it might even shorten the term because he serves only the unexpired portion
of the vacant position.

MR. FOZ: He takes it at his own risk. He knows that he will only serve the unexpired portion of the term
of the predecessor.

MS. AQUINO: Regardless of that, my question is: Will this provision likewise apply to that kind of
situation? In other words, I am only asking for an assurance that the safety valve applies to this situation.

MR. FOZ: The provision does take care of that situation.[5 ](Boldfacing and italicization supplied)

Commissioner Monsod, in reply to Commissioner Aquino’s query whether “a commissioner x x x first

appointed as an ordinary commissioner and later appointed as chairman” is covered by the prohibition
on reappointment, answered that “there is no reappointment of any kind.” When Commissioner Aquino
specifically pointed to the situation where “a commissioner is upgraded to a position of chairman,”
Commissioner Monsod replied that “it is covered,” meaning that such upgrading is prohibited. When
Commissioner Aquino still persisted in her line of inquiry on whether the prohibition on reappointment
applied to “that kind of situation” where “a commissioner is upgraded to a position of chairman,”
Commissioner Foz, after a fuzzy initial response, finally answered that the “provision does take care of
that situation.”

In contrast, the ponencia of Justice Presbitero J. Velasco, Jr. concludes that “a promotion, albeit entailing
a second appointment, involves a different office and hence not, in the strict legal viewpoint, a
reappointment.” This is grave and egregious error.

The ponencia insists that Section 1(2), Article IX-D of the 1987 Constitution “does not preclude the
promotional appointment of a commissioner to chairman, provided the appointee’s tenure in office does
not exceed 7 years in all,” citing the same deliberations of the Constitutional Commission quoted above.
This is misleading. Commissioner Aquino’s full statement reads:

MS. AQUINO: Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein
a commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind
of situation, then I am willing to withdraw my amendment.[6] (Boldfacing and italicization supplied)

Obviously, Commissioner Aquino wanted it clarified whether the situation where “a commissioner is
upgraded to a position of chairman” is covered by the provision prohibiting reappointment, and to which
Commissioner Monsod categorically stated, “It is covered.”

Subsequent to the exchange among Commissioners Monsod, Aquino and Foz,[7] the Constitutional
Commission again deliberated on the same issue when the framers discussed and voted whether the
words “without reappointment” should be added in the second sentence of Section 1(2) of Article IX-D.
Thus, whatever doubts remained on whether “promotional” appointments are prohibited were removed
completely when the framers voted to add the words “without reappointment” in the second sentence
of Section 1(2) to reject specifically the Visarra ruling, in particular the concurring opinion of Justice
Bautista, which stated that the appointment of a Commissioner to Chairman of a Commission is valid.
There is no doubt whatsoever that the framers of the 1987 Constitution clearly intended to forbid
reappointment of “any kind,” including specifically a situation where, in the words of Commissioner
Aquino, “a commissioner is upgraded to a position of chairman.”

To allow the “promotional” appointment of Villar from Commissioner to Chairman is to put Villar in a far
better, and uniquely privileged, position compared to the first two Commissioners who were barred from
being promoted from Commissioners to Chairman. The second sentence of Section 1(2), Article IX-D of
the 1987 Constitution provides, “Of those first appointed, the Chairman shall hold office for seven years,
one Commissioner for five years, and the other Commissioner for three years, without reappointment.”
Thus, the first Commissioner with a term of five years, and the second Commissioner with a term of
three years, could not be promoted to Chairman because of the words “without reappointment.”
Indeed, the first two Commissioners could not even be reappointed as mere Commissioners, making
their reappointment as Chairman an even greater constitutional anomaly. The first two Commissioners
have the same rank and privileges as Commissioner Villar. Logically, and as clearly and emphatically
intended by the framers of the 1987 Constitution, the same words “without reappointment” should bar
the promotional appointment of Villar, as well as all future promotional appointments of Commissioners
to Chairman.

On the other hand, the minority, through the dissent of Justice Jose C. Mendoza, claims that the second
“without reappointment” in Section 1(2) of Article XI-D “does nothing more than limit the terms of the
first batch of appointees to the COA.” This is an absurd reading of the constitutional provision. There is
no evidence whatsoever of the intent to make such a distinction in the status of the first appointees and
the subsequent appointees. Moreover, this claim is belied by the exchange between Commissioners
Davide and Foz. To quote again:

MR. DAVIDE: There would be no area of controversy because it is very clear:

The Chairman and the Commissioners shall be appointed by the President for a term of seven years
without reappointment.

So, it would even apply to the first set of three commissioners.

MR. FOZ: But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case
of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or
the tenure is for seven years. But in cases where the appointee serves only for less than seven years, he
would be entitled to reappointment. Unless we put the qualifying words “without reappointment” in the
case of these appointees, then it is possible that an interpretation could be made later on that in their
case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it very clear that even in the case of those first
appointed under this Constitution, no reappointment can be had.[8] (Boldfacing and italicization
supplied)

Commissioners Davide and Foz both used the word “even” to emphasize that the words “without
reappointment” apply to all the chairmen and commissioners to be appointed by the President,
including even the first set of three commissioners. That was the clear import of their discussion.

Justice JBL Reyes’ Dissenting Opinion in Visarra further elucidated how Section 1, Article X of the 1935
Constitution, on the terms of office of the members of the Commission on Elections (Comelec), should
be interpreted. Justice Reyes explained:

It is clear from the provisions above-quoted that, being, acutely conscious of the crucial importance of
the functions of the Commission on Elections to candidates for elective positions, and aware of the
consequent pressures and influences that would be brought to bear upon the Commissioners, the
framers of this part of the Constitution sought as much as possible to shield the Commission members
from any force or influence that might affect them in the discharge of their duties. To this end, the
Constitution not only disqualified the Commissioners from holding outside interests that might be
affected by their official functions (section 3); it expressly protected the Commissioners against danger of
possible retaliation by (a) giving them a fixed term of nine (9) years, not terminable except by
impeachment, and by (b) prohibiting any diminution of their salaries during their term of office. The
Constitution went even further: cognizant that human conduct may be influenced not only by fear of
vindictiveness but also, and even more subtly and powerfully, by prospects of advancement, our
fundamental law has likewise provided that members of the Commission on Elections (c) may not be
reappointed, and that (d) their salaries may not be increased during their terms. The plain purpose of all
these safeguards is that the Commissioners, once appointed and confirmed, should be free to act as
their conscience demands, without fear of retaliation or hope of reward; that they should never feel the
inducement of either the stick or the carrot. For only the man who has nothing to fear, and nothing to
expect, can be considered truly independent.
Upon these premises, the promotion of Dr. Gaudencio Garcia from Associate Commissioner to Chairman
of the Commission, with the attendant higher compensation and pre-requisites, violated the
Constitutional prohibition against both reappointment and salary increase. If, by express mandate of the
fundamental charter, a Commissioner cannot be validly reappointed, not even to the same position that
he has occupied, I can see no excuse for holding that he may validly be appointed again to a higher
position within the Commission. It is undeniable that a promotion involves a second appointment, i.e., a
reappointment that is expressly forbidden by the Constitution.

And if the legislature may not lawfully increase the Commissioners’ salaries during their terms of office,
by express constitutional inhibition, how in the name of good sense may the Chief Executive grant such
an increase to an Associate Commissioner via a promotional appointment to the Chairmanship?

xxx

Finally, in the Republic vs. Imperial case, upon which the majority opinion places so much reliance, this
very Court expressly reiterated that the intention of the Constitution in staggering the terms of the
Commissioners on Elections, so that one expires every three years, was that no President could appoint
more than one Commissioner[.]

xxx

By sanctioning promotion of one Associate Commissioner to the Chairmanship, the majority decision
enables the President to appoint more Commissioners (the one promoted and the replacement for the
latter) at one time whenever a chairman fails to complete his own term. This despite the avowed
intention of the constitutional plan of staggered terms, so that no President should appoint more than
one Commissioner, unless unavoidable.[9] (Emphasis supplied)

Since the framers of the 1987 Constitution adopted the dissenting opinions in Visarra, Villar’s
“promotion” from Commissioner to Chairman is clearly a reappointment expressly prohibited by the
1987 Constitution.
The prohibition must apply to all kinds of reappointment if we are to honor the purpose behind the
prohibition. The purpose is to ensure and preserve the independence of the COA and its members. The
members of the independent constitutional commissions, in the wise words of Justice JBL Reyes –

x x x should be free to act as their conscience demands, without fear of retaliation or hope of reward;
that they should never feel the inducement of either the stick or the carrot. For only the man who has
nothing to fear, and nothing to expect, can be considered truly independent.[10] (Emphasis supplied)

A COA member, like members of the other independent constitutional commissions, may no longer act
with independence if he or she can be rewarded with a promotion or reappointment, for he or she will
likely do the bidding of the appointing power in the expectation of being promoted or reappointed. This
Court has a sacred duty to safeguard the independence of the constitutional commissions, not make
them subservient to the appointing power by adopting a view that is grossly and manifestly contrary to
the letter and intent of the Constitution.

The minority likewise points out that after the ratification of the 1987 Constitution, then President
Corazon C. Aquino promoted then Commissioner Eufemio Domingo to Chairman, after Chairman Teofisto
Guingona resigned to run for a Senate seat.

Commissioner Domingo was appointed as one of the first commissioners under the 1987 Constitution,
with an original term of three years. When then Chairman Guingona resigned, he left a portion of his
seven-year term. President Aquino then appointed Commissioner Domingo as Chairman to serve the
unexpired portion of Guingona’s term. Domingo, however, did not complete his term, and served less
than seven years in the COA both as Commissioner and Chairman. In 1993, Pascacio Banaria was
appointed to replace Domingo, and served as Chairman until 2 February 1994.

Domingo’s appointment was never questioned before this Court and thus, the Court could not have
made a definitive ruling on the constitutionality of Domingo’s appointment. What is now under
consideration before this Court is the appointment of Villar, and thus, the Court cannot evade its duty to
make the proper ruling, based on the letter and intent of the Constitution. Suffice it to say that
Domingo’s promotional appointment does not in any way constitute binding precedent.
The Court already had occasion to explain the prohibition on reappointments to the independent
constitutional commissions under the 1987 Constitution. In Matibag v. Benipayo,[11] the Court
explained:

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.” x x x There are four situations
where this provision will apply. The first situation is 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 COMELEC, whether as a member or as a chairman, because he will then be
actually serving more than seven years. The second situation is 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. The third situation is
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.

The fourth situation is 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. x x x[12] (Emphasis
supplied)

Villar’s appointment falls under both the second and fourth situations. In order for him to take the
position of Chairman, Villar had to cut short his seven-year term, which means Villar resigned as
Commissioner. After such resignation, Villar could no longer be reappointed to the COA, either as
Commissioner or Chairman. First, Villar’s “promotional” appointment as Chairman falls under the second
situation since Villar had to resign as Commissioner to be appointed Chairman to fill a vacancy arising
from the expiration of the term of Chairman Carague. Second, Villar was given a term of only three years
as Chairman, instead of the mandatory seven years, to avoid exceeding the maximum term of seven
years. However, the term of office is fixed by the Constitution at seven years, and the President has no
power to shorten this term because that would mean amending the Constitution. Thus, the
“promotional” appointment of Villar as Chairman to a three-year term is, in itself, unconstitutional for
violating the mandatory seven-year fixed term, apart from the prohibition on reappointment. On the
other hand, had Villar’s term as Chairman been made seven years, it would have also been
unconstitutional since his total term would then exceed seven years. Thus, whether the upgrading of a
Commissioner to Chairman is for a seven-year term or less, such upgrading would be unconstitutional,
whatever is the term.

Villar’s “promotional” appointment as Chairman for the unexpired portion of his own term as
Commissioner also falls under the fourth situation, similar to the situation of the first Commissioners
appointed to the COA who served for less than seven years but could not be promoted as Chairman or
reappointed as Commissioners. In fact, the words “without reappointment” were specifically added in
Section 1(2) of Article IX-D precisely to prohibit a situation where “a commissioner is upgraded to a
position of chairman.” The words “without reappointment” in the second sentence of Section 1(2) were
the additional “safety valve” that the framers of the 1987 Constitution incorporated in the Constitution
to prevent “promotional” appointments like that of Villar.

Moreover, to allow Villar to carry his unexpired term as Commissioner to his term as Chairman means
crossing the lines of succession. This is also unconstitutional because it disrupts the rotational scheme of
succession mandated in the Constitution.

The Court has already declared that the words “without reappointment,” which appear twice in Section
1(2) of Article IX-D, were precisely incorporated to prohibit “any reappointment of any kind.” As the
Court held in Matibag:

The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member – whether for a full term of seven years, a truncated term of five or three years, or
even for an unexpired term of any length of time – can no longer be reappointed to the COMELEC.

x x x [T]he phrase “without reappointment” appears twice in Section 1 (2), Article IX-C of the present
Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of
seven years. The second phrase prohibits reappointment of any person previously appointed for a term
of five or three years pursuant to the first set of appointees under the Constitution. In either case, it
does not matter if the person previously appointed completes his term of office for the intention is to
prohibit any reappointment of any kind.

xxx
The prohibition on reappointment is common to the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and confirmed even if they served for less
than seven years. The second is to insure that the members of the three constitutional commissions do
not serve beyond the fixed term of seven years. x x x

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of
any kind. On the other hand, the prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total
term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very
specific – reappointment of any kind and exceeding one’s term in office beyond the maximum period of
seven years.[13] (Emphasis supplied)

To repeat, there is no doubt whatsoever that the prohibition in Section 1(2) of Article IX-D applies to “any
reappointment of any kind,” including promotional appointments from Commissioner to Chairman.

The terms of office of the Chairman and Commissioners are

for a fixed term of seven years without reappointment.

The Constitution states, “The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without reappointment.” The
Constitution uses the word “shall,” which makes it mandatory for the President to appoint to a fixed
term of seven years. The only exception is an appointment to a vacancy caused by death, resignation, or
impeachment. In such exceptional causes, however, the Constitution directs that the appointment “shall
be only for the unexpired portion of the term of the predecessor.” The President cannot give the
appointee a term that is more, or less, than the unexpired term of the predecessor. Thus, whether the
appointment arises from a regular vacancy or from an exceptional cause, the President has no discretion
to shorten or lengthen the appointee’s term because the term is fixed by the Constitution. The President
must appoint to a full term of seven years to fill a vacancy from an expired term, or to the full unexpired
portion of the term of the predecessor who vacated the office for an exceptional cause.

The ponencia posits that a seven-year appointment is not constitutionally feasible for Villar because
Villar had already served as COA Commissioner for four years prior to his appointment as Chairman.
Thus, under the circumstances of this case, giving Villar a seven-year term would violate the term of
office prescribed in Section 1(2), Article IX-D of the Constitution. The ponencia contends, however, that
far from prohibiting reappointment of any kind, the 1987 Constitution allows a promotional
appointment, but subject to defined parameters.

The ponencia maintains that a promotion from Commissioner to Chairman is not per se unconstitutional.
The ponencia argues that the ban on reappointment applies only to a new appointment to the same
position. On the other hand, a promotional appointment is disallowed only if the new appointment will
lead to a tenure of more than seven years because no term or tenure can exceed seven years. The
ponencia asserts that “[a]ppointment to the position of [C]hairman extended to a former
[C]ommissioner is allowed and is not covered by the ban on reappointment, provided the aggregate
period of the two (2) appointments will not exceed seven (7) years.”

Under the ponencia’s view, the words “without reappointment,” which appear twice in Section 1(2) of
Article IX-D, apply only to a reappointment to the same position. Thus, the ban on reappointment applies
only to the following situations: (1) a Commissioner is reappointed as Commissioner; and (2) a Chairman
is reappointed as Chairman.

Conversely, according to the ponencia, the words “without reappointment” do not apply to the following
situations: (1) a Chairman who has served for less than seven years is reappointed as Commissioner if his
total term does not exceed seven years; and (2) a Commissioner who has served for less than seven
years is reappointed as Chairman if his total term does not exceed seven years.

The error in the ponencia’s view is basic and quite obvious for three reasons. First, the constitutional ban
on reappointment, expressed in the words “without reappointment,” does not distinguish between
appointments to the same or different positions. There are only two possible positions – that of
Commissioner and Chairman. The words “without reappointment” have no conditions, distinctions or
qualifications that limit the ban on reappointments only to the same position. When the framers twice
used the plain, simple and unconditional words “without reappointment,” they meant exactly what the
words mean – no reappointment. When the people ratified the Constitution, they naturally and logically
understood the plain, simple and unconditional words “without reappointment” to mean no
reappointment.

Second, the rationale for the ban on reappointment applies to reappointments to the same or different
positions because the intention is to safeguard the independence of the Commission and all of its
Members. There is even greater reason to ban promotional appointments from Commissioner to
Chairman to prevent Commissioners from kowtowing to the appointing power in the hope of being
promoted to Chairman. It is more likely that a Commissioner would want to be promoted to Chairman
than to be reappointed to the same position as Commissioner.

Third, the framers of the Constitution repeated the words “without reappointment” in the second
sentence of Section 1(2) of Article IX-D precisely to prohibit promotional appointments from
Commissioner to Chairman. The framers expressly rejected Visarra, in particular the concurring opinion
of Justice Bautista, which construed the counterpart provision in the 1935 Constitution as allowing
promotional appointments. For the Court to now allow promotional appointments is to utterly disregard
the clear language of the Constitution, grossly ignore the clear intent of the framers, and wantonly
rewrite the Constitution – in the process destroying the independence of the constitutional
commissions.

To repeat, the Constitution prohibits reappointment of any kind, including the promotional appointment
of a Commissioner to the position of Chairman. Whether the promoted Commissioner’s term will or will
not exceed seven years, or will be exactly seven years, is irrelevant. The constitutional prohibition on any
kind of reappointment still applies to any promotional appointment.

The appointment or designation to the COA

in a temporary or acting capacity is prohibited.

Section 1(2), Article IX-D of the Constitution expressly prohibits appointments or designations in a
temporary or acting capacity. The last sentence of Section 1(2) states: “In no case shall any Member be
appointed or designated in a temporary or acting capacity.” Yet, after COA Chairman Guillermo Carague’s
(Chairman Carague) term of office expired, Villar was appointed as acting chairman from 4 February
2008 to 4 April 2008, in violation of this express constitutional prohibition. Clearly, Villar’s designation as
temporary or acting COA Chairman was unconstitutional. This Court must declare such appointment
unconstitutional to prevent a recurrence of temporary or acting appointments to the independent
constitutional commissions.

Term versus Tenure

On several occasions, the Court had clarified the distinction between term and tenure. The term of office
is the period when an elected officer or appointee is entitled to perform the functions of the office and
enjoy its privileges and emoluments.[14] The term is fixed by statute and it does not change simply
because the office may have become vacant for some time, or because the incumbent holds over in
office beyond the end of the term due to the fact that a successor has not been elected and has failed to
qualify.[15] In the case of the independent constitutional commissions, the Constitution not only fixes
the terms of office but also staggers the terms of office with a fixed common starting date, which is the
date of ratification of the 1987 Constitution.[16]

On the other hand, tenure is the period during which the incumbent actually holds the office. In length
of time, tenure may be as long as, or longer or shorter than, the term for reasons within or beyond the
power of the incumbent.[17] The phrase “actually holds office” means the discharge of the duties of the
office after due appointment and qualification.[18]

The term of office of the Chairman and Commissioners of the COA is fixed by the Constitution at seven
years, except for the first appointees. Villar was appointed Commissioner for a term of seven years, but
served only four years, which is his actual tenure. His four-year tenure as Commissioner cannot be
tacked on to the term of office of Chairman for two reasons: first, it will give him a tenure of more than
seven years, and second, crossing from one line of succession to another is prohibited.

This Court cannot also uphold Villar’s appointment as Chairman for a term of three years because the
Constitution specifically says that the term of office shall be seven years if the predecessor’s term has
expired, as in the case of Villar’s predecessor, Chairman Carague. If the appointee is replacing a
predecessor with an unexpired term, as in the case of Villar’s successor, Commissioner Evelyn San
Buenaventura (San Buenaventura), then the appointee’s term of office shall be such unexpired term.

The President has no power to appoint a Chairman for less than a seven-year term in place of a
predecessor whose full term has expired. To repeat, the Constitution expressly mandates that the
Chairman “shall be appointed by the President x x x for a term of seven years x x x.” Thus, apart from the
constitutional prohibition on reappointment, Villar’s appointment as Chairman for a three-year term is in
itself unconstitutional for violation of the mandated fixed seven-year term prescribed by the
Constitution.

To this, the ponencia agrees:

[T]he promotional appointment of Villar ending on February 2, 2011 constitutes [an] infringement of
Section 1(2), Article IX-D of the 1987 Constitution, hence, void because the President is only authorized
to appoint the new chairman to a full term of seven (7) years when the vacancy is created by the
expiration of the term of the predecessor.

Rationale behind the staggering of terms

Fr. Joaquin Bernas, S.J., a member of the 1986 Constitutional Commission, explained the rationale for the
staggering of terms of members of the three independent constitutional commissions:

In prescribing that the term of each Commissioner shall be seven years but that of the Commissioners
first appointed, three shall hold office for seven years, three for five years, and the last three for three
years, the result achieved is that at any one time only three Commissioners (of the three independent
constitutional commissions) retire together. Continuity in the body is thus achieved. Moreover, it makes
it unlikely that all the Commissioners at any one time are appointees of the same President.[19]
(Emphasis supplied)

Under the staggering of terms, there will be a vacancy in the COA only once every two years arising from
the expiration of terms of office. No two vacancies will occur at the same time arising from the
expiration of terms.

There are two reasons for staggering the terms of office of the members of the constitutional
commissions. First is to ensure the continuity of the body. For the COA, this means that at any given
time, there will always be at least two members – barring death, resignation, or impeachment in the
meantime – discharging the functions of the COA.

Second, staggering of terms ensures that the same President will not appoint all the three members of
the COA, unless the unexpected happens i.e., when vacancies arise out of death, resignation, or
impeachment. This is necessary to safeguard the independence of the COA. This staggering of terms
mandated by the Constitution must be observed by the President as the appointing authority. It is the
duty of this Court to ensure that this constitutional mandate is followed.
Villar’s appointment as Chairman violates

the staggering of terms mandated by the Constitution.

Villar insists that, since he is replacing Carague who has served his full seven-year term, he (Villar) must
also be given a full seven-year term despite his four-year tenure as Commissioner. Villar justifies his
stance by claiming that his appointment as Chairman is to “a totally different and distinct office.”

This is outright error without any basis under the Constitution, law or jurisprudence. The Court cannot
uphold Villar’s appointment as Chairman without wreaking havoc on the constitutionally mandated
staggering of terms or rotational system in the terms of office of the Chairman and Commissioners of the
COA.

In Republic v. Imperial,[20] the Court held that the staggering of terms, taken together with the
prescribed term of office,21 without reappointment, “evidences a deliberate plan to have a regular
rotation or cycle in the membership of the commission, by having subsequent members appointable
only once every three years.”[22]

The term of former Chairman Carague was from 2 February 2001 to 2 February 2008. Since Chairman
Carague served his full seven-year term, whoever was appointed to replace him should have been given
a full seven-year term, or from 2 February 2008 until 2 February 2015. However, since Villar was already
a Commissioner for four years, he could not be given a full seven-year term because then he would serve
the COA for more than seven years. Thus, Villar was given a term of only three years as Chairman, with
the justification that Villar “carried with him his seven-year term” as Commissioner.

The minority views Villar’s appointment thus:

[I]n 2008, Chairman Carague’s term expired. Again, either Commissioner may be promoted or upgraded
to the position of chairman with the condition that they would only serve his or her remaining term. And
this is exactly what happened to Commissioner Villar when President Arroyo promoted him as chairman.
This time, an outsider to be appointed should have a full seven-year term because he or she was not
filling in an unexpired term of a member but was in fact replacing one whose term had expired. By this
scheme, San Buenaventura would not have been appointed to the unexpired portion of then
Commissioner Villar[’s term] as the latter carried with him his seven-year term. San Buenaventura or any
outsider should have been appointed to a full seven-year term. (Emphasis supplied)

The minority insists that “in the case of San Buenaventura, she should have been considered a
replacement of [Chairman] Carague and should have been appointed for a term of seven years.” The
minority rationalizes that San Buenaventura replaced Chairman Carague, not Villar, because at that time
Villar was “still a commissioner, albeit a chairman.”

It is undeniable that Villar resigned as Commissioner on the fourth year of his seven-year term before his
term expired. It is also undeniable that San Buenaventura was appointed Commissioner to replace Villar
for the unexpired term of Villar as Commissioner. It is further undeniable that Villar was appointed
Chairman to replace Chairman Carague whose term had expired.

To appoint San Buenaventura as Commissioner with the seven-year term of the Chairman, instead of the
unexpired term of her predecessor Villar, is to cross the lines of succession. The minority’s view would
have the lines of succession crossed twice – the first, when Villar “carried with him his seven-year term,”
and the second, when San Buenaventura should have been given a “full seven-year term” for “actually
replacing an expired term of Chairman G. Carague.” To hold that San Buenaventura replaced Chairman
Carague because Villar “was still a member, albeit a chairman” is to hold that Villar held simultaneously
two positions – that of Commissioner and Chairman, in itself a constitutionally anomalous situation. And
if indeed Villar held both positions simultaneously, then there would have been no vacancy and San
Buenaventura could not have been appointed to replace Villar as Commissioner. The minority is caught
in a tangled web of ridiculous self-contradictions and inconsistencies.

The minority further holds that the “appointment of San Buenaventura to serve up to 2 February 2011
only disrupted the rotational cycle.” On the contrary, appointing San Buenaventura to a full term of
seven-years or up to 2 February 2015 would mean that her term would expire simultaneously with the
expiration of the term of the Chairman on 2 February 2015. This would disrupt the constitutional
rotation cycle of one vacancy every two years, with no two vacancies occurring at the same time.

With Villar’s resignation as Commissioner and appointment as Chairman, the only vacancy left, with its
corresponding unexpired term, was for the office of Commissioner vacated by Villar. Hence, San
Buenaventura was appointed Commissioner in place of the resigned Villar. When Villar resigned as
Commissioner, the third sentence of Section 1(2), Article IX-D of the Constitution applied – that
“appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor.”
Thus, San Buenaventura merely assumed the unexpired term of the resigned Villar. Giving San
Buenaventura the seven-year term of the vacancy arising from the expiration of Chairman Carague’s
term is crossing the lines of succession, which even the minority agrees is prohibited by the Constitution.

The fact is the full seven-year term applies to whoever replaces Chairman Carague because he or she will
not be filling an unexpired term but will be replacing one whose term has expired. Apart from the
prohibition on reappointment, another reason why no incumbent Commissioner could be promoted to
Chairman to replace Chairman Carague, whose term had expired, is that whoever is appointed must be
given a full seven-year term as fixed by express command of the Constitution. A “promotional”
appointment of an incumbent Commissioner to succeed Chairman Carague will automatically make the
appointee’s term exceed seven years. The President has no discretion to give the appointee a shorter
term to avoid breaching the maximum seven-year term. The term of office is fixed by the Constitution,
not by the President.

To allow Villar to take the position of Chairman without exceeding the maximum seven-year term, the
minority had to justify that Villar brought with him his term of office as Commissioner into his term as
Chairman. However, Villar could not have carried with him his seven-year term as Commissioner because
there must be no crossing of lines – as expressed in the constitutional provision that “appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor.” The remainder of
Villar’s term was actually left in his line of succession as Commissioner and, in fact, given to a new
Commissioner, San Buenaventura. There is no denying that Villar’s appointment as Chairman crossed the
lines of succession, disrupted the rotational scheme, and breached the prohibition on reappointment, a
prohibition that clearly includes “promotional” appointments. Hence, Villar’s appointment as Chairman
with a term of three years has no legal basis at all.

The minority brushes aside the stark fact that “promotion” disturbs the staggering of terms or rotational
scheme of appointment. If a Commissioner, who has already served part of his or her seven-year term, is
appointed Chairman and brings with him or her the remainder of his or her term as Commissioner, the
regular rotational scheme of appointment is immediately thrown into chaos.

As this case clearly shows, the rotational scheme of appointment is an integral element of the
constitutionally mandated structure of the Constitutional Commissions. To ignore it is to invite exactly
the kind of problems posed in this case.
To illustrate, the lines of succession and terms of office of the Chairman and Commissioners of the COA –
which have been observed since 2 February 1987 until Villar’s appointment in 2008 – are as follows:

Chairman

Commissioner I

Commissioner II

February 2, 1987

to

February 2, 1994

(7-year original term)

February 2, 1987

to

February 2, 1992

(5-year original term)

February 2, 1987

to

February 2, 1990

(3-year original term)

February 2, 1994

to

February 2, 2001

February 2, 1992

to

February 2, 1999

February 2, 1990

to
February 2, 1997

February 2, 2001

to

February 2, 2008

February 2, 1999

to

February 2, 2006

February 2, 1997

to

February 2, 2004

February 2, 2008

to

February 2, 2015

February 2, 2006

to

February 2, 2013

February 2, 2004

to

February 2, 2011

As shown above, every two years a single vacancy arises due to the expiration of the term of office of a
COA member. No two such vacancies occur at the same time.

However, with Villar’s appointment, what actually happened is this:

Chairman
Commissioner I

Commissioner II

Teofisto

Guingona23/Eufemio

Domingo24/Pascacio Banaria25

February 2, 1987

to

February 2, 1994

(7-year original term)26

Bartolome Fernandez

February 2, 1987

to

February 2, 1992

(5-year original term)

Eufemio Domingo27/Alberto Cruz

February 2, 1987

to

February 2, 1990

(3-year original term)

Celso Gangan28

February 2, 1994

to

February 2, 2001

Sofronio Ursal

February 2, 1992
to

February 2, 1999

Rogelio Espiritu

February 2, 1990

to

February 2, 1997

Guillermo Carague

February 2, 2001

to

February 2, 2008

Emmanuel Dalman

February 2, 1999

to

February 2, 2006

Raul Flores

February 2, 1997

to

February 2, 2004

Villar

February 2, 2008

to

February 2, 2011

Juanito Espino

February 2, 2006

to
February 2, 2013

Villar

February 2, 2004

to

February 2, 2008

San Buenaventura

February 2, 2008

to

February 2, 2011

Ma. Gracia Pulido-Tan29

February 2, 2011

to

February 2, 2015

February 2, 2013

to

February 2, 2020

Heidi Mendoza30

February 2, 2011

to

February 2, 2018

Immediately apparent is the occurrence of two vacancies at the same time, namely, the expiration of San
Buenaventura’s term on 2 February 2011 and the expiration of Villar’s term also on the same date. This is
contrary to the staggering of terms where only one vacancy occurs every two years as a result of the
expiration of the terms of office.

Likewise immediately apparent is the fact that incumbent COA Chairman Ma. Gracia Pulido-Tan – an
“outsider,” or one without any prior term within the COA – is given a term of office of only four years.
This is contrary to Section 1(2) of Article IX-D, which states that the Chairman and Commissioners of the
COA “shall be appointed x x x for a term of seven years.” The incumbent Chair’s abbreviated term,
however, is the result of Villar’s reappointment as Chairman, for if incumbent Chairman Pulido-Tan is
given a full seven-year term as prescribed in the 1987 Constitution, her term would end at the same time
as Commissioner Mendoza and the staggering of terms or rotational scheme of succession would be
disrupted again.

The disruptive effect of Villar’s appointment is making itself obvious – it forced the incumbent President
to appoint a new Chairman to a term shorter than that mandated by the Constitution, if only to restore
things in their proper rotational scheme. Even the minority concedes that the incumbent “President has
brought sanity and order to the otherwise disruptive appointments made by the former appointing
power in the case of Villar and San Buenaventura.” Moreover, Villar’s “promotion” as Chairman and San
Buenaventura’s appointment as Commissioner, with their terms ending on the same date, further
disrupted the constitutional scheme of staggering the members’ terms of office.

In every case that a Commissioner of the COA – or of any of the other constitutional commissions for
that matter – is “promoted” to Chairman and brings with him or her the unexpired portion of his or her
term, the same disruption in the constitutional rotation scheme will happen. This was never the
intention of the framers of the Constitution, and this is not what the clear language of the 1987
Constitution mandates.

The only way to prevent another insane, disorderly and disruptive appointment from happening again is
to affirm that a “promotion” from Commissioner to Chairman is expressly prohibited by the 1987
Constitution, as clearly intended by the framers of the 1987 Constitution, and as specifically written in
Section 1(2), Article IX-D of the 1987 Constitution. The framers of the 1987 Constitution added the words
“without reappointment” twice in Section 1(2) of Article IX-D precisely to remove any doubt whatsoever
that the prohibition applies to “any reappointment of any kind,” categorically rejecting the Visarra ruling,
in particular the concurring opinion of Justice Bautista, that allowed a “promotional appointment” from
Commissioner to Chairman.
What then do we make of Villar’s “promotional” appointment to a three-year term as COA Chairman? To
stress the obvious, it is nothing but a blatant, barefaced violation of the 1987 Constitution that must be
frankly characterized for what it is – grossly and manifestly unconstitutional.

The ponencia posits:

[A]ppointment to the COA, by express constitutional fiat, shall be for a term of seven (7) years, save
when the appointment is to fill up a vacancy for the corresponding unserved term of an outgoing
commissioner. x x x Should the vacancy arise out of the expiration of the term of the incumbent, then
there is technically no unexpired portion to speak of. The vacancy is for a fresh 7-year term and, ergo,
the appointment thereto shall in all instances be for seven (7) years.

Further, the ponencia asserts:

The word ‘reappointment’ means a second appointment to one and the same office; and Sec. 1(2), Art.
IX-D of the 1987 Constitution and similar provisions does not peremptorily prohibit the promotional
appointment of a commissioner to chairman, provided the new appointee’s tenure in both capacities
does not exceed seven (7) years in all.

Following the ponencia’s assertions, a Commissioner, with two years left to serve in the COA, can be
promoted to Chairman to fill an unexpired portion of three years, following the death, resignation or
impeachment of the Chairman. This appointment, according to the ponencia, will not violate the
constitutional prohibition because the promoted member will not be serving more than seven years in
the COA.

There are, however, fundamental errors in the ponencia’s premise.

First, as already previously discussed, a “promotion” is a reappointment prohibited by the Constitution.

The ban on reappointment applies to any kind of appointment, including a promotional appointment.
Second, a promotional appointment violates the constitutional directive that all appointments shall be
for a full seven-year term, except when the appointee is filling the unexpired term of a member who
died, resigned or was impeached.

Third, there will be a disruption of the rotational scheme of succession if a promotional appointment is
issued to fill an unexpired term of a Chairman.

*To illustrate, a Commissioner, who has served two years, is promoted to Chairman upon the resignation
of the Chairman who served only for one year. The new Chairman will serve a full seven-year term,
counted from the time he was appointed as Commissioner. This means that the new Chairman will be
appointed as Chairman for only five years; otherwise, he will serve for more than seven years. After he
has served for seven years, the Chairman will mandatorily retire from the Commission. When he retires,
he will leave one year in the Chairman’s term of office, based on the dates set under the rotational
scheme of succession, which is fixed starting on the date of the ratification of the 1987 Constitution. In
order not to disturb the rotational scheme of succession, any appointment to replace the retired
Chairman must be for only one year. However, such appointment will violate the constitutional provision
that the “Chairman x x x shall be appointed x x x for a term of seven years x x x” when the term of the
predecessor has expired. In short, since the term of the retired Chairman has already expired, he leaves
no unexpired term of his own since he served for seven years, and his successor must be given a full
seven-year term. However, appointing a successor for a term of seven years will disturb the rotational
scheme of succession. Either way, there will be a violation of the requirement that upon the expiration of
a predecessor’s term the appointment of a successor shall be for a full term of seven years, or a violation
of the rotational scheme of succession as envisioned in the Constitution.

To repeat, any appointment of more than the unexpired term will immediately disturb the rotational
scheme of succession and violate the Constitution. Similarly, any appointment of less than seven years –
since the predecessor’s term has already expired – will violate the constitutional requirement that the
appointment shall be for a full seven-year term if the predecessor has fully served his seven-year term.

Finally, the minority posits so-called “guidelines” for future appointments in the Constitutional
Commissions to maintain the rotational scheme of succession as mandated by the Constitution. The
minority prescribes, among others, that “commissioners may be promoted or upgraded to the position
of chairman, but they must maintain or keep their original seven-year term with them.” This guideline,
however, ipso facto destroys the rotational scheme of succession. One needs only to reexamine the facts
of this case to find a crystal clear illustration of how the guidelines that the minority prescribes, in fact,
contradict the letter and spirit of the Constitution.
When Commissioner Villar was promoted as Chairman, and carried with him the remainder of his
original seven-year term as argued by the minority, there was immediate disruption to the rotational
scheme of

succession. Since he could not be given a full seven-year term, as was proper since he was succeeding a
Chairman whose term had expired, his term as Chairman would end in the middle of the term mandated
by the rotational scheme of succession under the Constitution. Hence, whoever is appointed to succeed
Villar will also be appointed in the middle of the mandated term. If Villar’s successor is given a full seven-
year term, his or her term will cut into the next successor’s term, and the same cycle will continue ad
infinitum, until the whole scheme of rotational succession in the Chairman’s line is entirely lost.

The dates when the terms of office start and end never change, even when an appointment is made in
mid-term. This is the reason why someone appointed to replace a Chairman or Commissioner, who
leaves office before the end of the term, can only be appointed to the remainder of that term – known
as the “unexpired portion of the term” – to preserve the rotational cycle of succession. Neither the
President nor this Court can change these dates.

The Constitution is the supreme law of the land and the bible of this Court. Every member of this Court
has taken an oath to defend and protect the Constitution. This Court must apply and interpret the
Constitution faithfully without fear or favor. This Court must not twist or distort the letter and intent of
the Constitution to favor anyone, for the Constitution is larger and far more important than any party,
personality, group or institution in this country. The safeguards to ensure the independence of the
constitutional commissions, as designed and written in the Constitution, are vital to the survival of our
democracy and the development of our nation. It is the sacred duty of this Court to preserve and
maintain these safeguards.

Accordingly, I vote to GRANT the petition and to declare respondent Reynaldo A. Villar’s appointment as
Acting Chairman, and as Chairman, of the Commission on Audit, UNCONSTITUTIONAL.

[1] Section 24(5), Article VI, 1987 Constitution.

[2] Id.

[3] The 1963 case of Visarra v. Miraflor (118 Phil. 1) was decided under the 1935 Constitution,
specifically, Section 1, Article X:

Section 1. There shall be an independent Commission on Elections composed of a Chairman and two
other Members to be appointed by the President with the consent of the Commission on Appointments,
who shall hold office for a term of nine years and may not be reappointed. Of the Members of the
Commission first appointed, one shall hold office for nine years, another for six years, and the third for
three years. The Chairman and the other Members of the Commission on Elections may be removed
from office only by impeachment in the manner provided in this Constitution.

The Court upheld the appointment of then incumbent Commission on Elections (Comelec)
Commissioner Gaudencio Garcia to succeed Chairman Jose P. Carag, whose nine-year term had expired.
Justice Angelo Bautista in his concurring opinion wrote:

[T]o hold that the promotion of an Associate Commissioner to Chairman is banned by the Constitution
merely by judicial fiat would be to relegate a member forever to his position as such without hope of
enjoying the privileges incident to the chairmanship while giving a premium to an outsider who may be
less deserving except probably his political ascendancy because of his lack of experience on the
mechanics of that delicate and important position x x x its effect is to stimulate hard work, greater zeal
and increased efficiency for a member in the hope that his efforts would someday be regarded with a
promotion. The contrary would relegate him to apathy, indifference, hopelessness and inaction. It is
never a good policy to stultify one’s legitimate ambition to betterment and progress.

[4] Record of Proceedings and Debate of the Constitutional Commission, Vol. 1, p. 591.

[5] Record of Proceedings and Debate of the Constitutional Commission, Vol. 1, p. 586.

[6] Id.
[7] This took place on the Constitutional Commission’s 15 July 1986 session. At that same session, but
subsequent to the discussion among Commissioners Monsod, Aquino, and Foz, was the discussion on
Commissioner Davide’s proposal for a perfecting amendment to line 29, Section 2 (2), cited previously.
(Record of Proceedings and Debate of the Constitutional Commission, Vol. 1, pp. 586 and 591.) Taken
together, these discussions show the deliberate intent of the framers of the Constitution to prohibit
reappointments of any kind, including promotions from Commissioner to Chairman.

[8] Supra note 4.

[9] Supra note 3 at 34-38.

[10] Supra note 3 at 35.

[11] 429 Phil. 554 (2002).

[12] Id. at 596.

[13] Id. at 597, 598, 600.

[14] Casibang v. Aquino, 181 Phil. 181, 190 (1979).

[15] Valle Verde Country Club, Inc. v. Africa, G.R. No. 151969, 4 September 2009, 598 SCRA 202, 210.

[16] Gaminde v. Commission on Audit, 401 Phil. 77, 88-89 (2000).

[17] Topacio Nueno v. Angeles, 76 Phil. 12, 22 (1946).

[18] See the Dissenting Opinion of Justice Roberto Concepcion in Salaysay v. Castro, 98 Phil. 364, 385
(1956).

[19] Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 929.

[20 ]96 Phil. 770 (1955).

[21] Seven years under the 1987 Constitution, nine years under the 1935 Constitution.

[22] Republic v. Imperial, supra.

[23] Guingona was appointed COA Chairman on 10 March 1986, prior to the ratification of the 1987
Constitution, and served in that capacity until March 1987.

[24] Appointed COA Chairman in March 1987 and served in that capacity until April 1993.

[25] Appointed COA Chairman in April 1993 and served in that capacity until February 1994.

[26] The Court explained in the case of Gaminde v. Commission on Audit (G.R. No. 140335, 13 December
2000) that “the terms of the first Chairmen and Commissioners of the Constitutional Commissions under
the 1987 Constitution must start on a common date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in order that the expiration of the first terms of
seven, five and three years should lead to the regular recurrence of the two-year interval between the
expiration of the terms” and therefore, “the appropriate starting point of the terms of office of the first
appointees to the Constitutional Commissions under the 1987 Constitution must be on February 02,
1987, the date of the adoption of the 1987 Constitution.”

[27] Domingo was appointed COA Commissioner in April 1986 and served in that capacity until he was
appointed Chairman in March 1987.
[28] Gangan was appointed Chairman on 3 February 1994.

[29] Per the Official Gazette, Ma. Gracia M. Pulido-Tan was appointed COA Chairperson on 10 June 2011,
for a term expiring on 02 February 2015 (visited 22 July 2011)

[30] Per the Official Gazette, Heidi L. Mendoza was appointed COA Commissioner on 10 June 2011, for a
term expiring on 02 February 2018 (visited 22 July 2011)

SEPARATE CONCURRING AND DISSENTING OPINION

MENDOZA, J.:

I convey my concurrence with the well-studied position of Justice Presbitero J. Velasco, Jr. that Section
1(2), Article IX-(D) of the 1987 Constitution does not proscribe the promotion or upgrade of a
commissioner to a chairman, provided that his tenure in office will not exceed seven (7) years in all. The
appointment is not covered by the qualifying or restricting phrase “without reappointment” twice
written in that section.

From the records, the following appear to be the facts of the case:

1] On February 15, 2001, then President Arroyo appointed Carague as Chairman of the Commission on
Audit (COA) for a term of seven (7) years from February 2, 2001 to February 2, 2008.
2] Three years later, on February 7, 2004, President Arroyo appointed Villar as the third member of the
COA also for a term of seven years, or from February 2, 2004 to February 2, 2011.[1] When Carague’s
term of office expired, Villar was designated as “Acting Chairman” of the COA from February 4, 2008 to
April 4, 2008. On April 18, 2008, on his fourth year as COA Commissioner, Villar was appointed to the
position of COA Chairman with a term ending on February 2, 2011. His promotion was subsequently
confirmed by the Commission on Appointments on June 11, 2008.[2]

3] On January 5, 2010, San Buenaventura was appointed as COA Commissioner by President Arroyo. As
shown in her appointment papers, she was to serve only the unexpired term of Villar as commissioner or
up to February 2, 2011.[3]

4] On July 26, 2010, Funa filed this petition for certiorari and prohibition challenging the constitutionality
of the appointment of Villar as COA Chairman contending that the promotion of Villar, who had served
as member therein for four (4) years, was a violation of the Constitution because it was, in effect, a
prohibited “reappointment.”

From the pleadings and memoranda, it appears that the principal issue is whether or not the
constitutional proscription on reappointment includes the promotion of an incumbent commissioner as
chairman of a constitutional commission.

The resolution of the issue entails the proper interpretation of Section 2, Article IX-D of the Constitution
which reads:

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointment for a term of seven years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, one commissioner for five years, and the other
commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In no case shall any member be appointed or
designated in a temporary or acting capacity. (Emphases supplied)

From the aforequoted provision, the following are clear and undisputed:
The FIRST sentence sets out that the members of the COA must be appointed by the President for a non-
extendible term of seven years, thus, the phrase “without reappointment” at the end of the sentence;

The SECOND sentence specifically directs that the first set of appointees to the COA starting with the
Chairman shall have a non-extendible term of seven, five and three years, which provision sets the ball
rolling for the staggered system of appointments;

The terms of these first appointees to the COA are also non-extendible for the second sentence is also
qualified by the phrase “without reappointment;”

The THIRD sentence instructs that an appointment to any vacancy in the COA shall only be for the
unexpired term of the predecessor; and

The FOURTH sentence imposes a restriction on the power of the appointing authority, the President, to
designate a member of the COA in a temporary or acting capacity.

The Framers were clear in setting these limitations. They could very well have been as clear and explicit
with respect to promotions if it was their intention to do so.

My reasons for being one with Justice Velasco on the issue are the following:

1] the Constitution does not explicitly proscribe such promotions;

2] before the 1987 Constitution, there were several unquestioned and upheld promotions of similar
nature; and

3] after the 1987 Constitution, a commissioner was still promoted to succeed a chairman.

There is nothing at all in Section 2 which expressly or impliedly proscribes promotion of a commissioner
to chairman. If it was the intention of the Framers to absolutely prohibit such movement, it would have
been categorically specified and spelled out in the provision. Evidently, there was none. There were
indeed discussions about it in the constitutional commission but nothing definite was finally crafted.
The only thing clear was that members could not be reappointed either as commissioner or chairman
after they had served their respective terms of office. Nothing even remotely suggested that there was
an intention to do away with promotion or upgrade.

In the past (even under the 1987 Constitution), there were unquestioned promotions in the various
constitutional commissions whether due to the death, disability, resignation, impeachment or expiration
of the term of the predecessor, promotions were made and had, in fact, been unchallenged.

In Visarra v. Miraflor,[4] the appointment of Commissioner Gaudencio Garcia (Garcia) to succeed

Chairman Jose P. Carag (Carag), upon the expiration of the latter’s term in 1959, was recognized by the
Court without question. In Nacionalista Party v. De Veyra,[5]Vicente de Vera was among the first
commissioners appointed to the Commission on Elections (COMELEC) under the 1935 Constitution.
When the COMELEC chairmanship became vacant by the death of Chairman Jose Lopez Vito in 1947, De
Vera was promoted to occupy this vacancy for the unexpired term of the former incumbent. De Vera’s
appointment to the chairmanship was met with protest, on the theory that his promotion thereto was
considered a “reappointment” disallowed by the Constitution. The Court, through former Chief Justice
Moran, upheld the appointment.

The reason therefor was embodied in the concurring opinion of Justice Angelo Bautista in Visarra that
the ruling in Nacionalista remains to be a binding precedent on the validity of a promotion of an
incumbent Commissioner to the position of Chairman. Thus:

[T]o hold that the promotion of an Associate Commissioner to Chairman is banned by the Constitution
merely by judicial fiat would be to relegate a member forever to his position as such without hope of
enjoying the privileges incident to the chairmanship while giving a premium to an outsider who may be
less deserving except probably his political ascendancy because of his lack of experience on the
mechanics of that delicate and important position x x x its effect is to stimulate hard work greater zeal
and increased efficiency for a member in the hope that his efforts would someday be rewarded with a
promotion. The contrary would relegate him to apathy, indifference, hopelessness and inaction. It is
never a good policy to stultify one’s legitimate ambition to betterment and progress.[6]

Despite the deliberations in the constitutional commission, there was no discussion at all on such a
prohibition. What was clearly discussed and settled was the safety valve that no appointee shall serve
an aggregate period of more than seven (7) years. The records of the deliberations of the 1986
Constitutional Commission disclose the following:

“MS. AQUINO. Thank you.

In the same paragraph, I would propose an amendment by addition on page 2, line 31. Between the
period (.) after the word ‘predecessor’ and the sentence which begins with ‘In no case,’ insert THE
APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was
thinking that this may approximate the situation wherein a commissioner is first appointed as an
ordinary commissioner and later on appointed as chairman. I am willing to withdraw that amendment if
there is representation on the part of the Committee that this provision contemplates that kind of
situation and that there is an implicit intention to prohibit a term that in the aggregate will exceed more
than seven years. If that is the intention, I am willing to withdraw my amendment.

MR. MONSOD. If the Gentleman will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole, there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for and appointment of a temporary or
acting capacity is also accounted for. But I was thinking of a situation wherein a commissioner is
upgraded to a position of chairman. But if this provision is intended to cover that kind of situation, then I
am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: ‘Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor.’ In other words, if there is
upgrading of position from commissioner to chairman, the appointee can only serve the unexpired
portion of the term of the predecessor.
MS. AQUINO. But we have to be very specific about it; the provision does not still account for that kind
of a situation because, in effect, it might even shorten the term because he serves only the unexpired
portion of the vacant position.

MR. FOZ. He takes it at his own risk. He knows that he will only have to serve the unexpired portion of
the term of the predecessor.

MS. AQUINO. Regardless of that, my question is: Will this provision apply likewise to that kind of a
situation? In other words, I am only asking for an assurance that the safety valve applies to this situation.

MR. FOZ. The provision does take care of that situation.

MS. AQUINO. Thank you.”

On the whole, Commissioner Aquino was of the position that the prohibition on re-appointment does
not include the promotion or upgrade of an incumbent commissioner to the position of chairman. What
she was firm about was “an implicit intention to prohibit a term that in the aggregate will exceed more
than seven years.” For her, a promotion or an upgrade was permissible for as long as the aggregate term
would not exceed the seven- year limit.

Commissioner Monsod shared a similar position. Although he made a sweeping remark, a full and
complete reading of his response would reveal that he was merely assuring Commissioner Aquino that
there would be no chance for anybody to serve for more than seven years.

The response of Commissioner Foz bares that he did not foreclose that situation of a commissioner
being upgraded to a chairman.

After the 1987 Constitution was ratified, on February 2, 1987, former President Corazon C. Aquino
(President Aquino) appointed Teofisto Guingona (Guingona) as COA Chairman for a term of seven years,
Bartolome Fernandez (Fernandez) as commissioner for a term of five years, and Eufemio Domingo
(Domingo) as commissioner for a term of three years. When Guingona resigned to run for a senate seat,
President Aquino promoted Commissioner Domingo to the position of Chairman.[7]

With due respect to Justice Velasco, I part with him with respect to his position that a commissioner
cannot be promoted as chairman in case of the expiration of the term of his predecessor. My view is that
such a promotion is allowable not only in case of death, disability, resignation or impeachment.

It has been argued by the petitioner that since Carague had already completed his full term, Villar’s
appointment was a “constitutional impossibility”[8] because granting him a fresh term of seven (7) years
as Chairman would give him more than the maximum term allowed, in view of his four-year tenure as
Commissioner. This, for petitioner, completely debunks Villar's assertion that he must remain as COA
Chairman until 2015. A similar view was aired when it was advocated that Villar’s promotion was invalid
because it “was not legally feasible in the light of the 7-year aggregate rule.”[9] The explanation given
was that “Villar has already served 4 years of his 7-year term as COA commissioner. A shorter term,
however, to comply with said rule would effectively breach the clear purpose of the Constitution of
giving every appointee so appointed subsequent to the first set of commissioners, a fixed term of office
of 7 years.”[10]

The undersigned finds himself unable to agree with such position for three reasons. First, it has no
explicit constitutional basis. Second, in the past, commissioners were promoted to the chairmanship
without any question. Third, it is unfair to an incumbent commissioner who cannot hope to be promoted
in case of expiration of the term of a chairman.

The position that a commissioner cannot be promoted in case of expiration of a term of chairman has
no clear and concrete constitutional basis. There is nothing at all in the subject constitutional provision
which expressly or impliedly restricts the promotion of a commissioner in situations where the tenure of
his predecessor is cut short by death, disability, resignation or impeachment only. Likewise, there is no
express provision prohibiting a promotion in case of the expiration of the term of a predecessor. The
ponencia mentioned some distinctions but they were not clear or substantial. There were no discussions
about it either in the debates of the constitutional commission. What is unchallenged is the prohibition
on reappointment of either a commissioner or chairman after he has served his term of office (expiration
of term), or his term has been cut short by disability or resignation.

In promotions, naturally the predecessor is a chairman. In case of expiration of his term, an incumbent
commissioner can be appointed. Note that in the Constitution, there is no distinction whether the
predecessor is a chairman or a mere commissioner. For said reason, among others, it is my considered
view that a commissioner can be promoted in case of expiration of term of the chairman.

In fact, in the past, a commissioner was promoted to chairman after the expiration of the term of his
predecessor. He was Commissioner Garcia, who was promoted to succeed Chairman Carag of the
COMELEC, upon the expiration of the latter’s term in 1959.

Premises considered, it is my considered view that the promotion of Villar was legal but he could serve
up to February 15, 2011 only because his tenure should not exceed seven (7) years.

Respectfully submitted.

[G.R. NO. 180245 - July 4, 2012]

PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., Petitioner, v. TAKENAKA CORPORATION
and ASAHIKOSAN CORPORATION, Respondents.

DECISION

PERALTA, J.:

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the
Decision1 of the Court of Appeals (CA), dated July 27, 2007, and the CA Resolution2 dated October 23,
2007, denying herein petitioner's motion for partial reconsideration, be reversed and set aside.

The antecedent facts were accurately narrated in the CA Decision as follows.

In 1997, by way of a Concession Agreement, the Philippine Government awarded to petitioner the right
to build and operate the NAIA International Passenger Terminal III ("NAIA IPT3"). Petitioner then
contracted respondents Takenaka Corporation, and Asahikosan Corporation ("private respondents") to
construct and equip NAIA IPT3.

Private respondents are both foreign corporations organized under the laws of Japan, but only
respondent Takenaka Corporation is licensed to do business in the Philippines through its local branch
office.

Claiming that petitioner made no further payments after May 2002 despite continued performance of
their obligations, private respondents filed two collection suits before the High Court of Justice, Queen's
Bench Division, Technology and Construction Court in London, England ("London Court"), docketed as
Claim No. HT-04-248 and Claim No. HT-05-269. In both claims, respondent Takenaka Corporation was
designated as the First Claimant and respondent Asahikosan Corporation, the Second Claimant.

Ruling in favor of private respondents, the London Court issued an Order dated February 18, 2005 in
Claim No. HT-04-248 and an Order dated December 2, 1005 in Claim No. HT-05-269, directing that -
Claim No. HT-04-248ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

"1. Judgment be entered for the First Claimant in the sum of 6,602,971.00 United States dollars, together
with interest in the sum of 116,825,365.34 Philippine pesos up to and including 18 February 2005.

2. Judgment be entered for the Second Claimant in the sum of 8,224,236.00 United States dollars,
together with interest in the sum of 2,947,564.87 United States dollars up to and including 18 February
2005, being a total of 11,171,800.87 United States dollars.

3. Save for the costs of and caused by the amendment of the particulars of claim, which will be the
subject of a separate order, the Defendant to pay the First Claimant's and the Second Claimant's costs in
the action, to be subject to detailed assessment if not agreed."

chanrobles virtual law library

Claim No. HT-05-269ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

"1. Judgment be entered for the First Claimant in the sum of 21,688,012.18 United States dollars,
together with interest in the sum of 6,052,805.83 United States dollars.

2. Judgment be entered for the Second Claimant in the sum of 30,319,248.36 United States dollars,
together with interest in the sum of 5,442,628.26 United States dollars.

3. The Defendant to pay the Claimants' costs in the action, to be subject to detailed assessment if not
agreed."

chanrobles virtual law library

On March 1, 2006, private respondents filed a Complaint, docketed as Civil Case No. 06-171, before the
Regional Trial Court of Makati City, Br. 58, to enforce the aforesaid Orders of the London Court.
Petitioner filed a Motion to Dismiss the Complaint on the grounds of: (a) defective verification and
certification against forum shopping, because there was no board resolution showing that Mr. Takeshi
Kurebayashi was authorized by private respondents to sign the verification and certification of non-
forum shopping, and the special powers of attorney executed in favor of Mr. Kurebayashi by the
Executive Vice-President and President of respondents Takenaka Corporation and Asahikosan
Corporation, respectively, were not only insufficient but also improperly authenticated since the said
officers never personally appeared before the notary public, and finally, Mr. Kurebayashi was not
competent to guarantee that respondent Asahikosan Corporation has not engaged in forum shopping,
not being an employee or member of the said corporation; (b) forum shopping, because the Complaint
was allegedly private respondents' third attempt to file the same claim, the first attempt being private
respondents' voluntary submission to the jurisdiction of the Pasay Court in Civil Case No. 04-0876, the
expropriation case filed by the Republic of the Philippines against herein petitioner, where private
respondents manifested that they are not objecting to the taking of the condemned property (NAIA
IPT3), provided that they are justly compensated for their claims as unpaid contractors, and the second
attempt having been made before the Supreme Court in G.R. No. 166429 where private respondents
moved for partial reconsideration (in intervention) of the Supreme Court's decision affirming, with
modification, the Pasay Court's Order allowing the full release to herein petitioner of the funds
deposited by the Republic of the Philippines for the expropriation of the NAIA IPT3; (c ) payment,
novation, abandonment or extinguishment of the claims, inasmuch as private respondents have
allegedly entered into a contract with the Philippine government pursuant to which private respondents
supposedly received payment of US$10Million from the Philippine government, with the latter
committing to deliver more; and (d) non-compliance with a condition precedent, because petitioner
failed to resort to arbitration before the Construction Industry Arbitration Commission (CIAC) as
allegedly provided by the terms of the parties' agreement.

During the hearing of the Motion to Dismiss on April 7, 2006, private respondents asked for time to file
their Opposition. Private respondents subsequently filed their Opposition, which was followed by
petitioner's Reply, private respondents' Rejoinder and petitioner's Sur-Rejoinder.

On May 9, 2006, petitioner filed a Motion to Set its Motion to Dismiss for hearing, to enable it to present
evidence on the alleged payment, novation and extinguishment of its obligations to private respondents.
Thereafter, petitioner filed a Request for Subpoena Duces Tecum Ad Testificandum to direct Mr. Takeshi
Kurebayashi to appear and testify in court, and to bring the alleged General Framework Agreement
("GFA") between private respondents and the Philippine government as represented by the Manila
International Airport Authority (MIAA). Petitioner likewise filed a Motion for Production and Inspection
of Documents to require private respondents, or any of its officers and representatives, to produce and
permit the inspection, copying and photographing of the GFA by petitioner.
Private respondents opposed the said Motions and Request, arguing that the Motion to Dismiss need
not be heard anew because the ground sought to be proved, i.e., payment, novation or extinguishment
of obligation, was based on mere newspaper reports which are hearsay evidence. Private respondents
also asserted that Mr. Kurebayashi may not be compelled to testify as an adverse party witness without
first being served interrogatories. They further argued that discovery of documents may not be allowed
until the answer is filed since the materiality of the document requested cannot be determined until the
issues are joined. And assuming for the sake of argument that petitioner could prove the partial payment
of US$10Million, the payment would allegedly not extinguish petitioner's total obligation as to result in
the dismissal of the action.

Petitioner thereafter filed with the trial court, and served upon the President of respondent Takenaka
Corporation, Written Interrogatories which, among others, asked if Takenaka entered into a General
Framework Agreement with the Philippine government, what its salient features are, and if any amount
has been paid to Takenaka by the Philippine government.

Private respondents moved to expunge the Written Interrogatories, arguing that written interrogatories
cannot be served without leave of court before an Answer has been filed.

On June 26, 2006, petitioner filed a Motion for Leave to serve its Written Interrogatories on the
President of respondent Takenaka Corporation. That same day, respondent judge issued the first assailed
Omnibus Order denying petitioner's Motion to Dismiss, Motion to Set the Motion to Dismiss for hearing,
Motion for Production and Inspection of Documents, and Written Interrogatories.

Respondent judge held that Mr. Takeshi Kurebayashi was duly authorized to represent both private
respondents noting the Special Powers of Attorney attached to the Verification and Certification against
Forum Shopping, which were executed by the representative directors of private respondents, and
accompanied by Notarial Certificates executed in Tokyo by a Japanese Notary, giving authority to Mr.
Kurebayashi to file the Complaint. Respondent judge observed that under Articles 261 and 78 of the
Commercial Law of Japan, corporations may act through their representative directors, similar to the
Executive Committee under Philippine Corporation Law. Respondent judge held that under the principle
of lex loci celebrationis, the validity of the Special Powers of Attorney is determined by the law of the
place where they were executed.
Respondent judge rejected petitioner's claim of forum shopping, holding that private respondents simply
served notice on the Pasay Court and the Supreme Court about their being unpaid contractors.
Respondent judge found that private respondents merely prayed that the said Courts hold in abeyance
the release of the funds to petitioner until such time they can enforce the London Court Orders by virtue
of a final judgment, which neither the Pasay court nor the Supreme Court may render because the case
before them was one for expropriation.

Respondent judge likewise rejected petitioner's assertion that its obligation has been extinguished by
payment or novation. According to respondent judge, petitioner's claim that private respondents had
entered into a contract with the Philippine government was based on alleged newspaper articles which
are inadmissible in evidence for being hearsay. If at all, said respondent judge, such claim should be
raised as an affirmative defense in the Answer and substantiated in a full-blown trial. And assuming
private respondents were indeed paid US$10Million under the alleged contract with the Philippine
government, the same is but a small portion of the total amount claimed which is around
US$198Million, excluding attorney's fees and costs of suit.

Anent private respondents' alleged failure to resort to arbitration, respondent judge held that "this
ground, which actually assails the jurisdiction of the foreign court," is "a matter of affirmative or special
defense" which should be threshed out in a trial.

Finally, respondent judge held that the Motion for Production and Inspection of Documents and the
Written Interrogatories are modes of discovery that can only be availed of after the Answer has been
filed, pursuant to A.M. No. 03-1-09-SC.

Dissatisfied with respondent judge's ruling, petitioner moved for reconsideration of the June 26, 2006
Omnibus Order.

Noting that petitioner "failed to attach a copy of the alleged General Framework (of) Agreement in its
Motion for Reconsideration that will give flesh and blood to its bones of contentions that (private
respondents') claim has already been paid, novated or extinguished," respondent judge issued his Order
dated September 5, 2006, directing petitioner to submit the alleged GFA within 5 days from notice.
Accordingly, petitioner filed a Request for Subpoena Duces Tecum for Alfonso Cusi, General Manager or
Records Custodian of MIAA, to bring the GFA, vouchers, receipts and other papers proving MIAA's
alleged payments to respondent Takenaka Corporation.

On September 22, 2006, respondent judge granted petitioner's request and directed the issuance of the
subpoena duces tecum.

On September 27, 2006, the MIAA, through the Office of the Solicitor General, filed a Motion to Quash
the subpoena duces tecum, without serving a copy of their motion on the parties. The MIAA averred
that the subpoena was oppressive and unreasonable for it allegedly violated Section 6, Rule 21, and
petitioner allegedly failed to show the relevance of the documents sought to be produced. The MIAA
added that "(t)he only objective that (petitioner) has in asking for the GFA is to use against the
Government and shift its burden of paying its EPC contractors, Takenaka Corporation and Asahikosan
Corporation for the unpaid services rendered before the government expropriated the NAIA Terminal
III." The MIAA averred that "(petitioner) is venturing into a 'fishing expedition' to evade its obligations to
Takenaka Corporation and Asahikosan Corporation, and shifting the burden to the Government."

On October 9, 2006, respondent judge issued the second assailed Order quashing the subpoena duces
tecum, because the MIAA was not given ample opportunity to prepare for the submission of the
requested document, and because petitioner had to show the relevancy of the said document in the
light of MIAA's contention that petitioner is merely shifting the burden to pay its contractors for unpaid
services rendered before the expropriation of the NAIA IPT3.

Consequently, petitioner moved for reconsideration of the October 9, 2006 Order.

On January 15, 2007, respondent judge issued the third assailed Omnibus Order, denying petitioner's
motions for reconsideration of the assailed June 26, 2006 Omnibus Order, and October 9, 2006
Order.3ςrνll

Petitioner then filed a Petition for Certiorari, prohibition and mandamus with the CA, alleging that the
trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
refused to set another hearing for the motion to dismiss, when it denied the Motion to Dismiss and the
Motion for Production and Inspection of Documents, and the Written Interrogatories. The CA ruled that
since a hearing on the Motion to Dismiss was held on April 7, 2006 and, thereafter, both parties filed an
exchange of pleadings, then petitioner had reasonable opportunity to be heard, which was the essence
of due process. The CA concluded that the trial court did not commit grave abuse of discretion in
denying petitioner's motion to dismiss and the motion to set said motion for hearing. However, the CA
ruled that it was grave abuse of discretion for the trial judge not to grant the motion for production and
inspection of documents and written interrogatories, because Section 1, Rule 25, in relation to Section 1,
Rule 23 provides that written interrogatories may be served even before the Answer is filed so long as
leave of court has been obtained, and Section 1, Rule 27 states that the motion for production of
documents or things may be filed while the action is pending, which includes the period before the
Answer is filed. With regard to the quashal of the subpoena duces tecum, the CA held that MIAA s
Motion to Quash should not have been acted upon by the trial court because it did not contain a Notice
of Hearing, making it a mere scrap of paper. Thus, it held that the issuance of the Order dated October 9,
2007 quashing the subject subpoena was done with grave abuse of discretion. On July 27, 2007, the CA
rendered the assailed Decision, disposing as follows:ςrαlαω

WHEREFORE, the petition is GRANTED IN PART. The assailed Order dated October 9, 2006, which
quashed the subpoena duces tecum, is hereby SET ASIDE. The assailed Omnibus Order dated June 26,
2006 is SET ASIDE IN PART insofar as it denied petitioner's Motion for Production and Inspection of
Documents and Written Interrogatories. The assailed Omnibus Order dated January 15, 2007 is likewise
SET ASIDE IN PART insofar as it denied reconsideration of the June 26, 2006 denial of the Motion for
Production and Inspection of Documents and Written Interrogatories, and the October 9, 2006 quashal
of the subpoena duces tecum. The assailed June 26, 2006 and January 15, 2007 Omnibus Orders are
AFFIRMED IN PART insofar as they denied the Motion to Set the Motion to Dismiss for hearing, and the
Motion to Dismiss.

SO ORDERED.4ςrνll

Petitioner moved for partial reconsideration of the CA Decision, but the same was denied in a Resolution
dated October 23, 2007.

Hence, this Petition for Review on Certiorari where petitioner alleges that the CA erred (1) in ruling that
the Complaint is not fatally defective despite the fact that only a Special Power of Attorney, and not a
Board Resolution was attached to the Verification and Certification Against Forum Shopping; and (2) in
depriving petitioner the right to present evidence on its Motion to Dismiss.
On the other hand, respondents countered in their Comment that the petition should be dismissed
outright because it was filed out of time; it did not include a material portion of the record below, i.e.,
respondents' Comment to the petition before the CA; and the CA did not err in ruling that Mr.
Kurebayashi was duly authorized by respondents to sign the verification/certification of non-forum
shopping, because under the laws of Japan, under which laws respondents were incorporated, the board
of directors of a Japanese corporation may appoint one or more Representative Directors who shall have
the authority to perform all acts within court proceedings and out-of-court acts relating to the business
of the corporation, and Mr. Kurebayashi was validly appointed by respondents' Representative Directors
to execute the Verification/Certification.

The Court finds the petition unmeritorious.

At the outset, respondents must be disabused of the belief that the petition was filed late. Petitioner
originally had only until December 14, 2007 within which to file action. However, the Court indeed
suspended office transactions on December 14, 2007 due to the celebration of the Christmas party so
the Court's receiving section was closed. Petitioner, therefore, had until the next working day, or until
December 17, 2007, within which to file the petition. As long as the petition was filed on that last day of
December 17, 2007, then it is considered to have been filed on time. Records show that the petition was
indeed filed on December 17, 2007. Hence, it is of no moment that the Secretary's Certificate attached
to the Verification and Certification of Non-Forum Shopping was notarized on December 17, 2007, or
later than December 14, 2007.

Having resolved the question on the timeliness of the petition, we go on to discuss the main issues in
this case.

The Court does not see any reason to overturn the CA's finding that there was no grave abuse of
discretion on the part of the trial court in denying the Motion to Dismiss and the Motion to Set the
Motion to Dismiss

for Hearing. The established definition of grave abuse of discretion was reiterated in Ligeralde v.
Patalinghug5 in this wise:ςrαlαω

x x x By grave abuse of discretion is meant such capricious or whimsical exercise of judgment as is

equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility. In sum, for the extraordinary writ of certiorari to lie, there must be capricious,
arbitrary or whimsical exercise of power.6 (Emphases supplied)

In this case, there is no showing of such capricious or whimsical exercise of judgment or arbitrary and
despotic exercise of power committed by the trial court. In fact, records reveal that both parties were
given ample opportunity to be heard. A hearing on the Motion to Dismiss was, in fact, held on April 7,
2006. Thereafter, both parties submitted their pleadings setting forth their claims, arguments and
supporting evidence. Petitioner points out that at the April 7, 2006 hearing, the parties were only
allowed to file their pleadings, and no actual hearing, or presentation of evidence, was conducted. It is
an oft-repeated principle that where opportunity to be heard, either through oral arguments or
pleadings, is accorded, there is no denial of due process.7 Moreover, the issues that petitioner seeks to
tackle in the requested hearing on the motion to dismiss, i.e., novation, payment, extinguishment or
abandonment of the obligation, are the meat of their defense and would require the presentation of
voluminous evidence. Such issues are better threshed out during trial proper. Thus, the trial court was
not amiss in ruling that petitioner already had the opportunity to be heard and there was no longer any
need to set another hearing on the motion to dismiss.

It also appears from the RTC's Orders and the CA's Decision that any and all evidence and argument
advanced by both parties were seriously taken into consideration by said lower courts in arriving at their
rulings. Such being the case, there could be no grave abuse of discretion committed by the trial court.

Lastly, on the issue of the Verification/Certification, the court has the power to give due course to the
complaint even with the supposed defect, if special circumstances warrant. Even assuming arguendo,
that the form used to show Mr. Kurebayashi's authority to execute the Verification and Certification
Against Forum Shopping is defective, petitioner should bear in mind that this Court may relax the
application of procedural rules for the greater interest of substantial justice. Thus, in Cua, Jr. v. Tan,8 this
Court explained thus:ςrαlαω

x x x Although the submission of a certificate against forum shopping is deemed obligatory, it is not
jurisdictional. Hence, in this case in which such a certification was in fact submitted only, it was defective
the Court may still refuse to dismiss and may, instead, give due course to the Petition in light of
attendant exceptional circumstances.
x x x

x x x [I]n the interest of substantial justice, the strict application of procedural technicalities should not
hinder the speedy disposition of this case on the merits. x x x

x x x

x x x Indeed, where, as here, there is a strong showing that a grave miscarriage of justice would result
from the strict application of the Rules, the Court will not hesitate to relax the same in the interest of
substantial justice. It bears stressing that the rules of procedure are merely tools designed to facilitate
the attainment of justice. They were conceived and promulgated to effectively aid the court in the
dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion.
In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm
that, on the balance, technicalities take a backseat against substantive rights, and not the other way
around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is
always within the power of the Court to suspend the Rules, or except a particular case from its
operation.9 (Emphasis supplied)cralawlibrary

This case is one of those that deserves a more lenient application of procedural rules, considering that it
affects one of the most important public utilities of our country. In Agan, Jr. v. Philippine International Air
Terminals Co., Inc.,10 this Court has already stated that these cases involving the construction and
operation of the country's premier international airport, has attained transcendental importance.11
Therefore, the Court sees it fit to relax the rules in this case to arrive at a full settlement of the parties'
claims and avoid further delay in the administration of justice.

IN VIEW OF THE FOREGOING, the petition is DENIED. The Court of Appeal's Decision dated July 27, 2007,
and the CA Resolution dated October 23, 2007 in CA-G.R. SP No. 98166 are hereby AFFIRMED.

SO ORDERED.
497 Phil. 689

EN BANC

[ G.R. NO. 161081, May 10, 2005 ]

RAMON M. ATIENZA, IN HIS CAPACITY AS VICE-GOVERNOR OF THE PROVINCE OF OCCIDENTAL

MINDORO, PETITIONER, VS. JOSE T. VILLAROSA, IN HIS CAPACITY AS GOVERNOR OF THE
PROVINCE OF OCCIDENTAL MINDORO, RESPONDENT.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his capacity as Vice-
Governor of the Province of Occidental Mindoro, seeking to reverse and set aside the Decision[1] dated
November 28, 2003 of the Court of Appeals in CA-G.R. SP No. 72069. The assailed decision dismissed the
petition for prohibition under Rule 65 of the Rules of Court filed by petitioner Atienza which had sought
to enjoin the implementation of the Memoranda dated June 25, 2002 and July 1, 2002 issued by Jose T.
Villarosa, Governor of the same province.

The present case arose from the following undisputed facts:

Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of the
Province of Occidental Mindoro. On June 26, 2002, the petitioner Vice-Governor received the
Memorandum dated June 25, 2002 issued by the respondent Governor concerning the "AUTHORITY TO
SIGN PURCHASE ORDERS OF SUPPLIES, MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND
MAINTENANCE OF THE SANGGUNIANG PANLALAWIGAN." The said memorandum reads:

For proper coordination and to ensure efficient and effective local government administration
particularly on matters pertaining to supply and property management, effective immediately, all
Purchase Orders issued in connection with the procurement of supplies, materials and equipment[s]
including fuel, repairs and maintenance needed in the transaction of public business or in the pursuit of
any undertaking, project or activity of the Sangguniang Panlalawigan, this province, shall be approved by
the undersigned in his capacity as the local chief executive of the province.

The provision of DILG Opinion No. 148-1993 which states that the authority to sign Purchase Orders of
supplies, materials and equipment[s] of the Sanggunian belongs to the local chief executive, serves as
basis of this memorandum.

For strict compliance.[2]

In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent Governor
stating that:

We are of the opinion that . . . purchase orders for supplies, materials and equipment are included under
those as authorized for signature by the Vice-chief executive of the Sanggunian on the basis of the DILG
Opinion No. 96-1995 as affirmed by the COA Opinions on June 28, April 11 and February 9, 1994 and
coursing it to the Governor for his approval is no longer necessary, the fact that [Secs.] 466 and 468, RA
7160 already provides for the separation of powers between the executive and legislative. Such authority
even include everything necessary for the legislative research program of the Sanggunian.[3]

Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the
"TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND REAPPOINTMENT
OF THE RESPECTIVE RECOMMENDEES." The said memorandum reads:

For faithful and appropriate enforcement and execution of laws and issuances and to promote efficiency
in the government service, effective immediately, all existing contract of employment – casual/job order
basis and reappointment of the recommendees – entered into by Vice-Governor Ramon M. Atienza are
hereby terminated for being unauthorized.

Aside from being signed by the unauthorized signatory, the following facts regarding the appointments
were considered:

The appointment of 28 clerks – on top of existing permanent employees – is a clear manifestation of an

excessive and bloated bureaucracy;

The appointment of an X-ray Technician detailed at the Provincial Health Office and some clerks detailed
at various offices in the province were not proper to be assigned by the Vice-Governor;

The appointment of 30 messengers, utility workers and drivers ran counter to COA Opinion as cited in
the letter of the undersigned dated 28 June 2002, addressed to the Vice-Governor.

However, in order to accommodate the Vice-Governor and the members of the Sangguniang
Panlalawigan, the undersigned, in his capacity as the local chief executive of the province, will allow four
(4) casual/job order employees to be assigned to the Vice-Governor and one (1) casual/job order
employee to be assigned to each member of the Sangguniang Panlalawigan.

The Vice-Governor and all the Sanggunian Members are hereby directed to submit immediately the
names of their recommendees to the undersigned for immediate approval of their respective
appointments.

Please be guided accordingly.[4]

On July 3, 2002, the respondent Governor issued another Memorandum regarding the "ENFORCIBILITY
(sic) OF PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND JULY 1, 2002." It provides that:
Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002 issued by the
undersigned regarding the issuance of permit to travel and authority to sign Purchase Orders of supplies,
materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan, is to be
strictly adhered to for compliance.

Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference to the Cancellation
of the Appointment of Casual/Job Order Employees of the Sangguniang Panlalawigan Members/Office of
the Vice-Governor previously signed by Vice-Governor Ramon M. Atienza.

Please be guided accordingly.[5]

In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of separation of
powers as applied to the local government units, i.e., the respondent, as the Governor, the head of the
executive branch, and the petitioner, as the Vice-Governor, the head of the legislative branch, which is
the Sangguniang Panlalawigan. The petitioner Vice-Governor reiterated his request for the respondent to
make a "deeper study" on the matter before implementing his memoranda. The request, however, went
unheeded as the respondent Governor insisted on obliging the department heads of the provincial
government to comply with the memoranda.

The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing as
having been issued with grave abuse of discretion the respondent Governor's Memoranda dated June
25, 2002 and July 1, 2002. The petitioner Vice-Governor claimed that these memoranda excluded him
from the use and enjoyment of his office in violation of the pertinent provisions of Republic Act No.
7160, or the Local Government Code of 1991, and its implementing rules and regulations. It was prayed
that the respondent Governor be enjoined from implementing the assailed memoranda.

The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition.
Citing Section 344[6] of Rep. Act No. 7160, the CA upheld the authority of the respondent Governor to
issue the Memorandum dated June 25, 2002 as it recognized his authority to approve the purchase
orders. The said provision provides in part that "approval of the disbursement voucher by the local chief
executive himself shall be required whenever local funds are disbursed."

The CA explained that Section 466(a)(1)[7] of the same Code, relied upon by the petitioner Vice-
Governor, speaks of the authority of the Vice-Governor to sign "all warrants drawn on the public treasury
for all expenditures appropriated for the operation of the sangguniang panlalawigan." In declaring this
provision inapplicable, the CA reasoned that the approval of purchase orders is different from the power
of the Vice-Governor to sign warrants drawn against the public treasury.

Section 361[8] was, likewise, held to be inapplicable ratiocinating, thus:

[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of requiring that something
be furnished. In the procurement function, it is the submission of written requests for supplies and
materials and the like. It could be inferred that, in the scheme of things, approval of purchase requests is
different from approval of purchase orders. Thus, the inapplicability of Section 361.

Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could be enjoined
had already been rendered moot and academic. The CA pointed out that the subject of the said
memorandum could no longer be enjoined or restrained as the termination of the employees had
already been effected. It opined that where the act sought to be enjoined in the prohibition proceedings
had already been performed and there is nothing more to restrain, the case is already moot and
academic.

The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate court
committed reversible error in ruling that it is the Governor, and not the Vice-Governor, who has the
authority to sign purchase orders of supplies, materials, equipment, including fuel, repairs and
maintenance of the Sangguniang Panlalawigan. The petitioner Vice-Governor, likewise, takes exception
to the holding of the CA that the issue relating to the July 1, 2002 Memorandum had been rendered
moot and academic. He points out that the appointment of casual/job order employees is exercised by
the appointing authority every six months in the case of casual employees and per job order as to job
order employees. Thus, while the July 1, 2002 Memorandum had already been implemented, what is
being sought to be enjoined is the respondent Governor's continued usurpation of the petitioner Vice-
Governor's authority to appoint the employees of the Sangguniang Panlalawigan under the pertinent
provisions of Rep. Act No. 7160.

For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002 and July 1,
2002 are valid. He asserts that the approval of purchase orders is different from the power of the Vice-
Governor to sign warrants drawn against the provincial treasury under Section 466(a)(1) of Rep. Act No.
7160. Rather, he insists on the application of the last clause in Section 344 which states that the approval
of the disbursement by the local chief executive is required whenever local funds are disbursed.

The respondent Governor likewise defends the validity of the Memorandum dated July 1, 2002 stating
that it was issued upon finding that the petitioner Vice-Governor appointed, among others, 28 clerks on
top of the existing permanent employees resulting in an excessive and bloated bureaucracy. He concedes
the appointing power of the Vice-Governor but submits that this is limited to the employees of the
Sangguniang Panlalawigan and that he is not authorized to appoint officials and employees of the Office
of the Vice-Governor.

As correctly presented by the appellate court, the issues for resolution in this case are:

A. Who between the petitioner and the respondent is authorized to approve purchase orders issued in
connection with the procurement of supplies, materials, equipment, including fuel, repairs and
maintenance of the Sangguniang Panlalawigan?

B. Does respondent Villarosa, as local chief executive, have the authority to terminate or cancel the
appointments of casual/job order employees of the Sangguniang Panlalawigan Members and the Office
of the Vice-Governor?[9]

Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had
ceased to be the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro
effective June 30, 2004 when the newly-elected officials of the province took their oaths of offices. The
petitioner Vice-Governor did not run for re-election during the May 2004 elections while the respondent
Governor did not succeed in his re-election bid. The expiration of their terms of offices has effectively
rendered the case moot. However, even in cases where supervening events had made the cases moot,
the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar and the public.[10] In this case, there is compelling reason for the
Court to resolve the issues presented in order to clarify the scope of the respective powers of the
Governor and Vice-Governor under the pertinent provisions of the Local Government Code of 1991.

To resolve the substantive issues presented in the instant case, it is well to recall that Rep. Act No. 7160
was enacted to give flesh to the constitutional mandate to "provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanism of recall, initiative and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all matters relating to
the organization and operation of the local units."[11]

In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give effect to
decentralization. Among these principles are: [t]here shall be an effective allocation among the different
local government units of their respective powers, functions, responsibilities, and resources; [t]here shall
be established in every local government unit an accountable, efficient, and dynamic organizational
structure and operating mechanism that will meet the priority needs and service requirements of its
communities; [p]rovinces 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; and [e]ffective mechanisms for ensuring
the accountability of local government units to their respective constituents shall be strengthened in
order to upgrade continually the quality of local leadership.[12]

With these guideposts, the Court shall now address the issue on who between the Governor and Vice-
Governor is authorized to approve purchase orders issued in connection with the procurement of
supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang
Panlalawigan.

We hold that it is the Vice-Governor who has such authority.

Under Rep. Act No. 7160, local legislative power for the province is exercised by the Sangguniang
Panlalawigan[13] and the Vice-Governor is its presiding officer.[14] Being vested with legislative powers,
the Sangguniang Panlalawigan enacts ordinances, resolutions and appropriates funds for the general
welfare of the province in accordance with the provisions of Rep. Act No. 7160.[15] The same statute
vests upon the Vice-Governor the power to:

(1) Be the presiding officer of the sangguniang panlalawigan and sign all warrants drawn on the
provincial treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan.
[16]

Further, Section 344 provides:

Sec. 344. Certification on, and Approval of, Vouchers. – No money shall be disbursed unless the local
budget officer certifies to the existence of appropriation that has been legally made for the purpose, the
local accountant has obligated said appropriation, and the local treasurer certifies to the availability of
funds for the purpose. Vouchers and payrolls shall be certified to and approved by the head of the
department or office who has administrative control of the fund concerned, as to validity, propriety and
legality of the claim involved. Except in cases of disbursements involving regularly recurring
administrative expenses such as payrolls for regular or permanent employees, expenses for light, water,
telephone and telegraph services, remittances to government creditor agencies such as the GSIS, SSS,
LBP, DBP, National Printing Office, Procurement Service of the DBM and others, approval of the
disbursement voucher by the local chief executive himself shall be required whenever local funds are
disbursed.
In cases of special or trust funds, disbursements shall be approved by the administrator of the fund.

In case of temporary absence or incapacity of the department head or chief of office, the officer next-in-
rank shall automatically perform his function and he shall be fully responsible therefor.

Reliance by the CA on the clause "approval of the disbursement voucher by the local chief executive
himself shall be required whenever local funds are disbursed" of the above section (Section 344) to rule
that it is the Governor who has the authority to approve purchase orders for the supplies, materials or
equipment for the operation of the Sangguniang Panlalawigan is misplaced. This clause cannot prevail
over the more specific clause of the same provision which provides that "vouchers and payrolls shall be
certified to and approved by the head of the department or office who has administrative control of the
fund concerned." The Vice-Governor, as the presiding officer of the Sangguniang Panlalawigan, has
administrative control of the funds of the said body. Accordingly, it is the Vice-Governor who has the
authority to approve disbursement vouchers for expenditures appropriated for the operation of the
Sangguniang Panlalawigan.

On this point, Section 39 of the Manual on the New Government Accounting System for Local
Government Units, prepared by the Commission on Audit (COA), is instructive:

Sec. 39. Approval of Disbursements. – Approval of disbursements by the Local Chief Executive (LCE)
himself shall be required whenever local funds are disbursed, except for regularly recurring
administrative expenses such as: payrolls for regular or permanent employees, expenses for light, water,
telephone and telegraph services, remittances to government creditor agencies such as GSIS, BIR,
PHILHEALTH, LBP, DBP, NPO, PS of the DBM and others, where the authority to approve may be
delegated. Disbursement vouchers for expenditures appropriated for the operation of the Sanggunian
shall be approved by the provincial Vice Governor, the city Vice-Mayor or the municipal Vice-Mayor, as
the case may be.[17]

While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all
warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the
Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily
includes the authority to approve purchase orders covering the same applying the doctrine of necessary
implication. This doctrine is explained, thus:

No statute can be enacted that can provide all the details involved in its application. There is always an
omission that may not meet a particular situation. What is thought, at the time of enactment, to be an
all-embracing legislation may be inadequate to provide for the unfolding of events of the future. So-
called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to
fill in the gap is the doctrine of necessary implication. The doctrine states that what is implied in a
statute is as much a part thereof as that which is expressed. Every statute is understood, by implication,
to contain all such provisions as may be necessary to effectuate its object and purpose, or to make
effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and
subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And
every statutory grant of power, right or privilege is deemed to include all incidental power, right or
privilege. This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper
inest et minus.[18]

Warrants are "order[s] directing the treasurer of the municipality to pay money out of funds in city
treasury which are or may become available for purpose specified to designated person[s]."[19]
Warrants of a municipal corporation are generally orders payable when funds are found. They are issued
for the payment of general municipal debts and expenses subject to the rule that they shall be paid in
the order of presentation.[20]

The ordinary meaning of "voucher" is a document which shows that services have been performed or
expenses incurred. It covers any acquittance or receipt discharging the person or evidencing payment by
him. When used in connection with disbursement of money, it implies some instrument that shows on
what account or by what authority a particular payment has been made, or that services have been
performed which entitle the party to whom it is issued to payment.[21]

Purchase order, on the other hand, is "an authorization by the issuing party for the recipient to provide
materials or services for which issuing party agrees to pay; it is an offer to buy which becomes binding
when those things ordered have been provided."[22]

When an authorized person approves a disbursement voucher, he certifies to the correctness of the
entries therein, among others: that the expenses incurred were necessary and lawful, the supporting
documents are complete and the availability of cash therefor. Further, the person who performed the
services or delivered the supplies, materials or equipment is entitled to payment.[23] On the other hand,
the terms and conditions for the procurement of supplies, materials or equipment, in particular, are
contained in a purchase order. The tenor of a purchase order basically directs the supplier to deliver the
articles enumerated and subject to the terms and conditions specified therein.[24] Hence, the express
authority to approve disbursement vouchers and, in effect, authorize the payment of money claims for
supplies, materials or equipment, necessarily includes the authority to approve purchase orders to cause
the delivery of the said supplies, materials or equipment.

Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for the
procurement of the supplies, materials and equipment needed for the operation of the Sangguniang
Panlalawigan, then he also has the authority to approve the purchase orders to cause the delivery of the
said supplies, materials or equipment.

Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury
for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to
approve disbursement vouchers relating thereto is greater and includes the authority to approve
purchase orders for the procurement of the supplies, materials and equipment necessary for the
operation of the Sangguniang Panlalawigan.

Anent the second issue, the appellate court likewise committed reversible error in holding that the
implementation of the Memorandum dated July 1, 2002 had rendered the petition moot and academic.
It is recognized that courts will decide a question otherwise moot and academic if it is "capable of
repetition yet evading review."[25] Even if the employees whose contractual or job order employment
had been terminated by the implementation of the July 1, 2002 Memorandum may no longer be
reinstated, still, similar memoranda may be issued by other local chief executives. Hence, it behooves the
Court to resolve whether the Governor has the authority to terminate or cancel the appointments of
casual/job order employees of the Sangguniang Panlalawigan and the Office of the Vice-Governor.

We hold that the Governor, with respect to the appointment of the officials and employees of the
Sangguniang Panlalawigan, has no such authority.

Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:

Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation.– (a) The provincial governor,
as the chief executive of the provincial government, shall exercise such powers and perform such duties
and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the
province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

...

(v) Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of
provincial funds and whose appointments are not otherwise provided for in this Code, as well as those
he may be authorized by law to appoint.
On the other hand, Section 466 vests on the Vice-Governor the power to, among others:

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the
sangguniang panlalawigan, except those whose manner of appointment is specifically provided in this
Code.

Thus, while the Governor has the authority to appoint officials and employees whose salaries are paid
out of the provincial funds, this does not extend to the officials and employees of the Sangguniang
Panlalawigan because such authority is lodged with the Vice-Governor. In the same manner, the
authority to appoint casual and job order employees of the Sangguniang Panlalawigan belongs to the
Vice-Governor.

The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang
Panlalawigan is anchored on the fact that the salaries of these employees are derived from the
appropriation specifically for the said local legislative body. Indeed, the budget source of their salaries is
what sets the employees and officials of the Sangguniang Panlalawigan apart from the other employees
and officials of the province. Accordingly, the appointing power of the Vice-Governor is limited to those
employees of the Sangguniang Panlalawigan, as well as those of the Office of the Vice-Governor, whose
salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan. As a corollary, if the
salary of an employee or official is charged against the provincial funds, even if this employee reports to
the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said
employee pursuant to Section 465(b)(v) of Rep. Act No. 7160.

However, in this case, it does not appear whether the contractual/job order employees, whose
appointments were terminated or cancelled by the Memorandum dated July 1, 2002 issued by the
respondent Governor, were paid out of the provincial funds or the funds of the Sangguniang
Panlalawigan. Nonetheless, the validity of the said memorandum cannot be upheld because it absolutely
prohibited the respondent Vice-Governor from exercising his authority to appoint the employees,
whether regular or contractual/job order, of the Sangguniang Panlalawigan and restricted such authority
to one of recommendatory nature only.[26] This clearly constituted an encroachment on the
appointment power of the respondent Vice-Governor under Section 466(a)(2) of Rep. Act No. 7160.

At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local Government Code prior
to Rep. Act No. 7160, the Governor was the presiding officer of the Sangguniang Panlalawigan:

Sec. 205. Composition. (1) Each provincial government shall have a provincial legislature hereinafter
known as the sangguniang panlalawigan, upon which shall be vested the provincial legislative power.
(2) The sangguniang panlalawigan shall be composed of the governor, vice-governor, elective members
of the said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangay
provincial federation who shall be appointed by the President of the Philippines.

...

Sec. 206. Sessions. –

(3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be
entitled to vote except in case of a tie.

...

With Rep. Act No. 7160, the union of legislative and executive powers in the office of the local chief
executive under the BP Blg. 337 has been disbanded, so that either department now comprises different
and non-intermingling official personalities with the end in view of ensuring a better delivery of public
service and provide a system of check and balance between the two.[27]

Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that "the Vice-Governor
is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-Mayor presides at meetings
of the Sangguniang Panlungsod and the Municipal Vice-Mayor at the sessions of the Sangguniang Bayan.
The idea is to distribute powers among elective local officials so that the legislative, which is the
Sanggunian, can properly check the executive, which is the Governor or the Mayor and vice versa and
exercise their functions without any undue interference from one by the other."[28]

The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang Panlalawigan
independence in the exercise of its legislative functions vis-a-vis the discharge by the Governor of the
executive functions. The Memoranda dated June 25, 2002 and July 1, 2002 of the respondent Governor,
which effectively excluded the petitioner Vice-Governor, the presiding officer of the Sangguniang
Panlalawigan, from signing the purchase orders for the procurement of supplies, materials or equipment
needed for the operation of the Sangguniang Panlalawigan as well as from appointing its casual and job
order employees, constituted undue interference with the latter's functions. The assailed memoranda
are clearly not in keeping with the intent of Rep. Act No. 7160 and their implementation should thus be
permanently enjoined.
WHEREFORE, the petition is GRANTED. The Memoranda dated June 25, 2002 and July 1, 2002 issued by
respondent Governor Jose T. Villarosa are NULL AND VOID.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna,
Tinga, Chico-Nazario, and Garcia, JJ., concur.

Puno, J., on sick leave.

Panganiban, and Sandoval-Gutierrez, JJ., on official leave.

413 Phil. 717

SECOND DIVISION

[ G.R. No. 132177, July 19, 2001 ]

 JUDGE JOSE F. CAOIBES, JR., PETITIONER, VS. THE HONORABLE OMBUDSMAN AND JUDGE
FLORENTINO M. ALUMBRES, RESPONDENTS.

DECISION

BUENA, J.:

Petitioner Jose F. Caoibes, Jr., Presiding Judge of Branch 253 of the Regional Trial Court of Las Piñas City,
seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated August 22,
1997 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and (2) the Order
dated December 22, 1997 denying petitioner's motion for reconsideration and directing petitioner to file
his counter-affidavit and other controverting evidences.

On May 23, 1997, respondent Florentino M. Alumbres, Presiding Judge of Branch 255 of the Regional
Trial Court of Las Pinas City, filed before the Office of the Ombudsman, a Criminal Complaint[1] for
physical injuries, malicious mischief for the destruction of complainant's eyeglasses, and assault upon a
person in authority. Respondent alleged therein that on May 20, 1997, at the hallway on the third floor
of the Hall of Justice, Las Pinas City, he requested petitioner to return the executive table he borrowed
from respondent; that petitioner did not answer so respondent reiterated his request but before he
could finish talking, petitioner blurted "Tarantado ito ah," and boxed him at his right eyebrow and left
lower jaw so that the right lens of his eyeglasses was thrown away, rendering his eyeglasses
unserviceable; and that respondent had the incident blottered with the Las Piñas Police Station. He
prayed that criminal charges be filed before the Sandiganbayan against the petitioner.

On June 13, 1997, respondent Judge lodged another Complaint[2] against petitioner, this time and
administrative case with the Supreme Court, docketed as Adm. Case No. 97-387-RTJ, praying for the
dismissal of petitioner from the judiciary on the ground of grave misconduct or conduct unbecoming a
judicial officer. Said complaint is based on the same facts as those in the complaint filed earlier with the
office of the Ombudsman.
In the Order[3] dated June 25, 1997, the Office of the Ombudsman required petitioner to file a counter-
affidavit within ten (10) days from receipt thereof. Instead of filing a counter-affidavit, petitioner filed on
July 7, 1997 and "Ex-Parte Motion for Referral to the Honorable Supreme Court,"[4] praying that the
Office of the Ombudsman hold its investigation of Case No. OMB-0-97-0903 in abeyance, and refer the
same to the Supreme Court which, through the Office of the Court Administrator, is already investigating
what transpired on May 20, 1997. Petitioner contended that the Supreme Court, not the Office of the
Ombudsman, has the authority to make a preliminary determination of the respective culpability of
petitioner and respondent Judge who, both being members of the bench, are under its exclusive
supervision and control.

On August 22, 197, the Office of the Ombudsman issued an Order[5] denying the motion for referral to
the Supreme Court. Invoking Section 15 (1) of Republic Act No. 6770, the Office of the Ombudsman held
that it is within its jurisdiction to investigate the criminal charges of respondent Judge against petitioner.

Petitioner moved for reconsideration[6] of the foregoing order, maintaining that the Office of the
Ombudsman should either refer Case No. OMB-0-97-0903 to the Supreme Court for preliminary
evaluation, or await the latter's resolution of Adm. Case No. 97-387-RTJ which involves the same parties
and subject matter. Otherwise, petitioner argues, the absurd situation may result wherein the Office of
the Ombudsman files criminal charges against petitioner who, on the other hand, is declared without
fault by the Supreme Court.

In the Order[7] dated December 22, 1997, the Office of the Ombudsman denied the motion for
reconsideration and required petitioner to submit a counter-affidavit within an inextendible period of
five (5) days from receipt thereof.

Hence, petitioner filed this petition for certiorari, asking for the reversal of the assailed Orders dated
August 22, 1997 and December 22, 1997 of the Office of the Ombudsman and the issuance of a writ of
injunction or temporary restraining order, directing the Office of the Ombudsman to refrain from taking
further action in the implementation of the challenged orders.

The issue in this case is whether or not the Office of the Ombudsman should defer action on case No.
OMB-0-97-0903 pending resolution of Adm. Case No. 97-387-RTJ.
The issue is not novel. In Maceda vs. Vasquez,[8] this Court resolved in the affirmative the issue of
whether or not the Ombudsman must defer action on a criminal complaint against a judge, or a court
employee where the same arises from their administrative duties, and refer the same to this Court for
determination whether said judge or court employee had acted within the scope of their administrative
duties.

Invoking Section 15 of R.A. 6770, the Office of the Ombudsman refuses to refrain from taking cognizance
of Case NO. OMB-0-97-0903 in favor of this Court on the ground that, allegedly, the accusations therein
against petitioner constitute simple criminal charges falling within the parameters of its constitutional
power and duty to investigate and prosecute any act or omission of any public officer or employee which
appears to be illegal, unjust, improper or inefficient.

Section 15 (1) of R.A. 6770 grants, among others, the following powers and duties to the Office of the
Ombudsman:

"(1)

Investigate and prosecute on its own, or on complaint by any person, any act or omission of any public
officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper,
or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise
of this primary jurisdiction, it may takeover, at any stage, from any investigatory agency of Government,
the investigation of such cases;

"(2)

Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any
subdivision, agency or instrumentality thereof, as well as any government-owned or controlled
corporations with original charter, to perform and expedite any act or duty required by law, or to stop,
prevent and correct any abuse or impropriety in the performance of duties;

"(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..."
The foregoing provisions supply the legal basis for the Ombudsman in maintaining its jurisdiction over
the charges of physical injuries, malicious mischief and assault upon a person in authority filed by
respondent Judge against petitioner. This conclusion seems to be reinforced by Section 16 of R.A. 6770
which states that the powers of the Office of the Ombudsman apply to all kinds of malfeasance,
misfeasance and nonfeasance committed by public officers and employees during their tenure or office.

The Office of the Solicitor General in its Manifestations, in Lieu of Comment, correctly opined and we
quote:

"xxx the grant of the aforequoted powers to the Office of the Ombudsman is not tantamount to giving it
exclusive authority thereon. In fact, Section 15 (1) of R.A. 6770, which is relied upon by the Office of the
Ombudsman in its assailed order, provides that it has primary, not exclusive, jurisdiction over graft and
corruption cases and felonies committed by public officers in relation to their office. Moreover, it was
held in Sanchez vs. Demetriou, 227 SCRA 627 [1993], that the Ombudsman's power under Section 15 (1)
of R.A. 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the
offense charged."[9]

It appears that the present case involves two members of the judiciary who were entangled in a fight
within court premises over a piece of office furniture. Under Section 6, Article VIII of the Constitution, it
is the Supreme Court which is vested with exclusive administrative supervision over all courts and its
personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself
whether a criminal complaint against a judge, or court employee, involves an administrative matter. The
Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred
to the Supreme Court for determination as to whether and administrative aspect is involved therein. This
rule should hold true regardless of whether an administrative case based on the act subject of the
complaint before the Ombudsman is already pending with the Court. For, aside from the fact that the
Ombudsman would not know of this matter unless he is informed of it, he should give due respect for
and recognition of the administrative authority of the Court, because in determining whether an
administrative matter is involved, the Court passes upon not only administrative liabilities but also other
administrative concerns, as is clearly conveyed in the case of Maceda vs. Vasquez.[10]

The Ombudsman cannot dictate to, and bind the Court, to its findings that a case before it does or does
not have administrative implications. To do so is to deprive the Court of the exercise of its administrative
prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is a dangerous
policy which impinges, as it does, on judicial independence.

Maceda is emphatic that by virtue of its constitutional power of administrative supervision over all
courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest
municipal trial court clerk, it is only the Supreme Court that can oversee the judges' and court
personnel's compliance with all laws, and take the proper administrative action against them if they
commit any violation thereof. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers.

WHEREFORE, the petition for certiorari is hereby GRANTED. The Ombudsman is hereby directed to
dismiss the complaint filed by respondent Judge Florentino M. Alumbres and to refer the same to this
Court for appropriate action.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, and De Leon, Jr., JJ., concur.

Quisumbing, J., on official business.

G.R. No. 102781

EN BANC

[ G.R. No. 102781, April 22, 1993 ]

BONIFACIO SANZ MACEDA, PRESIDING JUDGE, BRANCH 12, REGIONAL TRIAL COURT,
ANTIQUE, PETITIONER, VS. HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY.
NAPOLEON A. ABIERA, RESPONDENTS.
DECISION

NOCON, J.:

The issue in this petition for certiorari with prayer for preliminary mandatory injunction and/or
restraining order is whether the Office of the Ombudsman could entertain a criminal complaint for the
alleged falsification of a judge's certification submitted to the Supreme Court, and assuming that it can,
whether a referral should be made first to the Supreme Court.

Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial Court of Antique,
seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated
September 18, 1991 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and
(2) the Order dated November 22, 1991 denying petitioner's motion for reconsideration and directing
petitioner to file his counter-affidavit and other controverting evidences.

In his affidavit-complaint dated April 18, 1991 filed before the Office of the Ombudsman, respondent
Napoleon A. Abiera of the Public Attorney's Office alleged that petitioner had falsified his Certificate of
Service[1] dated February 6, 1989, by certifying "that all civil and criminal cases which have been
submitted for decision or determination for a period of 90 days have been determined and decided on or
before January 31, 1989," when in truth and in fact, petitioner knew that no decision had been rendered
in five (5) civil and ten (10) criminal cases that have been submitted for decision. Respondent Abiera
further alleged that petitioner similarly falsified his certificates of service for the months of February,
April, May, June, July and August, all in 1989; and the months beginning January up to September 1990,
or for a total of seventeen (17) months.

On the other hand, petitioner contends that he had been granted by this Court an extension of ninety
(90) days to decide the aforementioned cases.

Petitioner also contends that the Ombudsman has no jurisdiction over said case despite this Court's
ruling in Orap vs. Sandiganbayan,[2] since the offense charged arose from the judge's performance of his
official duties, which is under the control and supervision of the Supreme Court. Furthermore, the
investigation of the Ombudsman constitutes an encroachment into the Supreme Court's constitutional
duty of supervision over all inferior courts.

The Court disagrees with the first part of petitioner's basic argument. There is nothing in the decision in
Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A judge
who falsifies his certificate of service is administratively liable to the Supreme Court for serious
misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the
State under the Revised Penal Code for his felonious act.

However, We agree with petitioner that in the absence of any administrative action taken against him by
this Court with regard to his certificates of service, the investigation being conducted by the
Ombudsman encroaches into the court's power of administrative supervision over all courts and its
personnel, in violation of the doctrine of separation of powers.

Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative
supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down
to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can
oversee the judges' and court personnel's compliance with all laws, and take the proper administrative
action against them if they commit any violation thereof. No other branch of government may intrude
into this power, without running afoul of the doctrine of separation of powers.

The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the
Constitution,[3] for such a justification not only runs counter to the specific mandate of the Constitution
granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise
undermines the independence of the judiciary.

Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for
determination of whether said certificates reflected the true status of his pending case load, as the Court
has the necessary records to make such a determination. The Ombudsman cannot compel this Court, as
one of the three branches of government, to submit its records, or to allow its personnel to testify on
this matter, as suggested by public respondent Abiera in his affidavit-complaint.[4]
The rationale for the foregoing pronouncement is evident in this case. Administratively, the question
before Us is this: should a judge, having been granted by this Court an extension of time to decide cases
before him, report these cases in his certificate of service? As this question had not yet been raised with,
much less resolved by, this Court, how could the Ombudsman resolve the present criminal complaint
that requires the resolution of said question?

In fine, where a criminal complaint against a judge or other court employee arises from their
administrative duties, the Ombudsman must defer action on said complaint and refer the same to this
Court for determination whether said judge or court employee had acted within the scope of their
administrative duties.

WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby directed to dismiss the
complaint filed by public respondent Atty. Napoleon A. Abiera and to refer the same to this Court for
appropriate action.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
and Quiason, JJ., concur.

623 Phil. 280

EN BANC

[ G.R. No. 185749, December 16, 2009 ]

CIVIL SERVICE COMMISSION, PETITIONER, VS. HERMINIGILDO L. ANDAL, RESPONDENT.

DECISION
CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari filed by the Civil Service Commission (CSC) seeking
to set aside the Decision dated 22 September 2008[1] and the Resolution dated 2 December 2008[2] of
the Court of Appeals[3] in CA-G.R. SP No. 100452. The Court of Appeals set aside the CSC Decision dated
25 May 2005, Resolution No. 062255 dated 20 December 2006 and Resolution No. 071493 dated 1
August 2007 in Administrative Case No. 00-12-027. The motion for reconsideration filed thereafter was
denied.

The Facts

Herminigildo L. Andal (respondent) holds the position of Security Guard II in the Sandiganbayan. On 24
January 2000, he filed an application to take the Career Service Professional Examination-Computer
Assisted Test (CSPE-CAT) and was admitted to take the examination. The examination results showed that
respondent passed the examination with a rating of 81.03%.

On 25 January 2000, Arlene S. Vito (Vito), claiming to have been authorized by respondent to secure the
results of the examination, presented a handwritten authorization allegedly signed by respondent. Upon
verification and comparison of the pictures attached to the Picture Seat Plan and the identification card
of respondent which Vito presented, there appeared a dissimilarity in the facial features. Bella A. Mitra,
then Officer-in-Charge of the Examination, Placement and Services Division (EPSD) of the Civil Service
Commission-National Capital Region (CSC-NCR), issued a Memorandum on the alleged "impersonation"
of respondent and the matter was referred to the Legal Affairs Division to conduct a fact-finding
investigation. On 29 November 2000, the CSC-NCR formally charged respondent with dishonesty.

A formal investigation of the case was scheduled on 4 June 2001, 21 November 2001, 5 February 2002,
and 10 July 2002. Notices were sent to respondent's last known address as indicated in his Application
Form but respondent failed to appear on the scheduled hearings. Respondent was deemed to have
waived his right to appear at the formal investigation and the case proceeded ex parte.
On 5 August 2005, the CSC-NCR rendered judgment finding respondent guilty of dishonesty and
imposing upon him the penalty of dismissal from the service.

Aggrieved, respondent appealed to the CSC which issued Resolution No. 062255 dated 20 December
2006, the dispositive portion of which reads:

WHEREFORE, the appeal of Herminigildo L. Andal is hereby DISMISSED. Accordingly, the Decision dated
May 25, 2005 of the Civil Service Commission National Capital Region (CSC-NCR), Quezon City, finding
him guilty of Dishonesty and imposing upon him the penalty of dismissal from the service with accessory
penalties of disqualification from re-entering government service, forfeiture of retirement benefits, and
bar from taking any civil service examination, pursuant to Section 57 of the Uniformed Rules, is
AFFIRMED.[4]

Respondent moved for a reconsideration of the CSC judgment but the motion was denied in the CSC
Resolution No. 071493 dated 1 August 2007.

Respondent elevated the case to the Court of Appeals on a petition for review under Rule 43. On 22
September 2008, the Court of Appeals rendered judgment in favor of respondent, the dispositive portion
of which reads:

WHEREFORE, premises considered, the assailed Decision dated 25 May 2005, Resolution No. 062255
dated 20 December 2006, and Resolution No. 071493 dated 01 August 2007 in Admin. Case No. 00-12-
027 are SET ASIDE and respondent Civil Service Commission is enjoined from implementing the same.
Respondent Civil Service Commission is hereby ORDERED to immediately refer said administrative case
for Dishonesty against petitioner Herminigildo L. Andal to the Office of the Court Administrator, Supreme
Court, for appropriate action.[5]

The CSC filed a motion for reconsideration which the Court of Appeals denied in its Resolution dated 2
December 2008.

Hence, the present petition.

The Issue

The issue in this case is whether or not the Civil Service Commission has disciplinary jurisdiction to try
and decide administrative cases against court personnel.

Ruling of the Court of Appeals

The Court of Appeals ruled that the CSC encroached upon the Supreme Court's power of administrative
supervision over court personnel. In reversing the CSC resolutions, the Court of Appeals cited Section 6,
Article VIII[6] of the 1987 Constitution which provides that the Supreme Court shall have administrative
supervision over all courts and the personnel thereof. The Court of Appeals further stated that what the
CSC should have done was to refer the administrative case for dishonesty against respondent to the
Office of the Court Administrator for appropriate action instead of resolving the case.

The Court's Ruling

In taking cognizance of the administrative case for dishonesty against respondent, the CSC invoked
Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations which provides that the CSC
"shall have original disciplinary jurisdiction over all its officials and employees and over all cases involving
civil service examination anomalies or irregularities." The CSC further contends that administrative cases
of dishonesty in connection with duties and responsibilities under Section 47, Chapter 7, Subtitle A, Title
I, Book V of the Revised Administrative Code are different from cases of dishonesty in connection with
cheating incidents in Civil Service examinations administered by the CSC. In the latter case, the CSC
assumes jurisdiction as an integral part of its duty, authority and power to administer the civil service
system and protect its integrity, citing the case of Civil Service Commission v. Albao.[7]

The CSC argues that one of the powers of the CSC is the administration of the civil service examinations.
The CSC made a careful study and comparison of the facial features of the person appearing on the
photographs attached to the Application Form and the Personal Data Sheet (PDS), and the photograph
attached to the Picture Seat Plan. Resemblance of the pictures purporting to be respondent's was clearly
wanting. The signatures appearing on the face of the documents also revealed discrepancies in the
structure, strokes, form and general appearance.
We agree with the Court of Appeals and accordingly, deny the present petition.

The Court recognizes the CSC's administrative jurisdiction over the civil service. Section 3, Article IX-B of
the Constitution declares the CSC as the central personnel agency of the Government, thus:

Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall
establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system,
integrate all human resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the President and the
Congress an annual report on its personnel programs.

Section 12, Title 1 (A), Book V of Executive Order No. 292 (EO 292) likewise enumerates the powers and
functions of the CSC, one of which is its quasi-judicial function under paragraph 11, which states:

Section 12. Powers and Functions — The Commission shall have the following powers and functions:

xxx

(11) Hear and decide administrative cases instituted by or brought before it directly or on appeal,
including contested appointments, and review decisions and actions of its offices and of the agencies
attached to it x x x.

And, Section 47, Title 1 (A), Book V of EO 292 provides for the CSC's disciplinary jurisdiction, as follows:

SEC. 47. Disciplinary Jurisdiction. — (1) The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in
an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from
office. A complaint may be filed directly with the Commission by a private citizen against a government
official or employee in which case it may hear and decide the case or it may deputize any department or
agency or official or group of officials to conduct the investigation. The results of the investigation shall
be submitted to the Commission with recommendation as to the penalty to be imposed or other action
to be taken. x x x (Emphasis supplied)

The CSC's authority and power to hear and decide administrative disciplinary cases are not in dispute.
The question is whether the CSC's disciplinary jurisdiction extends to court personnel in view of Section
6, Article VIII of the 1987 Constitution.

The Albao case cited by the CSC is not in point as Albao was not a court employee but a contractual
employee of the Office of the Vice President. The Albao case merely affirmed the authority of the CSC to
take cognizance of any irregularity or anomaly connected with the civil service examinations.

One case in point is Bartolata v. Julaton[8] wherein a letter-complaint was sent to the CSC Regional Office
in Davao City denouncing the acts of Felicia Julaton (Julaton), Clerk of Court, and Juanita Tapic (Tapic),
Court Interpreter II, both of the Municipal Trial Court in Cities, Davao City, Branch 3. The CSC Regional
Office in Davao City discovered that a certain Julaton submitted her application to take the Civil Service
Professional Examination in 1989 but the picture on the application form and on the Picture Seat Plan
did not resemble the picture appearing on the appointment of Julaton. The signature of Julaton affixed
to the examination documents did not match the signature on her PDS. The case was referred to the
Office of the Court Administrator which recommended that Julaton and Tapic be held liable as charged.
This Court dismissed Julaton from the service, with forfeiture of all retirement benefits while Tapic, who
had resigned, was fined P25,000 and his retirement benefits were ordered forfeited.

Likewise, in Civil Service Commission v. Sta. Ana,[9] the CSC formally charged Zenaida Sta. Ana (Sta. Ana),
Court Stenographer I of the Municipal Circuit Trial Court of Quezon-Licab, Nueva Ecija with dishonesty,
grave misconduct, and conduct prejudicial to the best interest of the service for misrepresenting that she
took and passed the CSPE-CAT when in truth and in fact, someone else took the examinations for her.
The CSC found that the picture and signature in Sta. Ana's PDS were different from those appearing in
her application form and in the Picture Seat Plan. Upon the recommendation of the Office of the Court
Administrator, this Court found Sta. Ana guilty of dishonesty and dismissed her from the service with
forfeiture of retirement benefits.

In the Julaton and Sta. Ana cases, the CSC recognized the disciplinary jurisdiction of the Supreme Court
over court personnel. This is consonant with Section 6, Article VIII of the 1987 Constitution vesting in the
Supreme Court administrative supervision over all courts and the personnel thereof, thus:
Sec. 6. The Supreme Court shall have administrative supervision over all courts and the personnel
thereof.

By virtue of this power, it is only the Supreme Court that can oversee the judges' and court personnel's
administrative compliance with all laws, rules and regulations. No other branch of government may
intrude into this power, without running afoul of the doctrine of separation of powers. This we have
ruled in Maceda v. Vasquez[10] and have reiterated in the case of Ampong v. Civil Service Commission.
[11] In Ampong, we also emphasized that in case of violation of the Civil Service Law by a court
personnel, the standard procedure is for the CSC to bring its complaint against a judicial employee
before the Office of the Court Administrator of the Supreme Court.

The CSC contends that respondent is now estopped from assailing the jurisdiction of the CSC when he
voluntarily submitted himself to the CSC-NCR and was accorded due process, citing the Ampong case.

We disagree.

In Ampong, petitioner in that case admitted her guilt. She voluntarily went to the CSC regional office,
admitted to the charges leveled against her and waived her right to the assistance of counsel. She was
given ample opportunity to present her side and adduce evidence in her defense before the CSC. She
filed her answer to the charges against her and even moved for a reconsideration of the adverse ruling of
the CSC. In short, Ampong did not question the authority of the CSC and, in fact, actively participated in
the proceedings before it.

In the present case, while respondent may have filed his Answer to the formal charge of dishonesty after
having been directed to do so, he denied having taken the civil service examination and did not even
appear at the formal investigation conducted by the CSC-NCR.[12] He appealed to the CSC after the
adverse decision of the CSC-NCR was rendered but raised the issue of lack of jurisdiction over his person.
He argued that as an employee in the Judiciary, "the jurisdiction to hear disciplinary action against him
vests with the Sandiganbayan or the Supreme Court."[13] It cannot therefore be said that he was
estopped from assailing the jurisdiction of the CSC.
This notwithstanding, we reiterate that we will not and cannot tolerate dishonesty for the judiciary
expects the highest standard of integrity from all its employees. The conduct and behavior of everyone
connected with an office charged with the dispensation of justice is circumscribed with a heavy burden
or responsibility. The Court will not hesitate to rid its ranks of undesirables.

WHEREFORE, we AFFIRM the Decision dated 22 September 2008 and the Resolution dated 2 December
2008 of the Court of Appeals in CA-G.R. SP No. 100452. Accordingly, we DENY the instant petition.
Nonetheless, we ORDER the Civil Service Commission to refer the case of respondent Herminigildo L.
Andal to the Office of the Court Administrator, for the filing of the appropriate administrative case
against him.

SO ORDERED.

Puno, C.J., Corona, Carpio Morales, Velasco, Jr., Nachura, Brion, Peralta, Bersamin, Del Castillo, Abad, and
Villarama, JJ., concur.
601 Phil. 124

THIRD DIVISION

[ G.R. No. 167409, March 20, 2009 ]

RODOLFO B. GARCIA, RETIRED MUNICIPAL CIRCUIT TRIAL COURT JUDGE, CALATRAVA-

TOBOSO, NEGROS OCCIDENTAL, PETITIONER, VS. PRIMO C. MIRO, OMBUDSMAN-VISAYAS,
CEBU CITY; DANIEL VILLAFLOR, PROVINCIAL PROSECUTOR, BACOLOD CITY; HON. FRANKLIN M.
COBBOL, ACTING PRESIDING JUDGE, MCTC, CALATRAVA-TOBOSO, NEGROS OCCIDENTAL; AND
JULIETA F. ORTEGA, RESPONDENTS.

DECISION

PERALTA, J.:

This is a petition for prohibition with prayer for issuance of writ of preliminary injunction. The petition
seeks to impugn the Orders dated November 23, 2004[1] and January 26, 2005[2] issued by the
Municipal Circuit Trial Court (MCTC) of Calatrava-Toboso, Negros Occidental.

The antecedents are as follows:

On January 31, 2003, Julieta F. Ortega (Julieta) filed a letter complaint[3] before the Ombudsman-
Vizayas, Primo C. Miro (Miro), charging Judge Rodolfo B. Garcia, then Presiding Judge of the MCTC,
Calatrava-Toboso, Negros Occidental, and Ricardo Liyage (Liyage), ambulance driver, Municipality of
Calatrava, Negros Occidental, with the crime of murder and the administrative offenses of grave
misconduct and abuse of authority.

The complaint arose from the death of Julieta's husband, Francisco C. Ortega, Jr., on November 12, 2002,
as a result of a vehicular mishap between a Toyota Land Cruiser driven by the petitioner and the
motorcycle driven by the deceased.[4]

The letter complaint was treated as two (2) separate criminal and administrative complaints docketed as
OMB-V-C-03-0076-B and OMB-V-A-03-0051-B, respectively.

On February 21, 2003, Deputy Ombudsman Miro approved a Joint Evaluation Report[5] dated February
12, 2003. In said evaluation report, Graft Investigation Officer (GIO) Antonio B. Yap found the letter
complaint to be sufficient in form and substance. He concluded that the offense charged is not related
to the functions of petitioner as a judge and can be the subject of preliminary investigation.[6] With
regard to the administrative aspect of the case, GIO Yap recommended that the case be indorsed to the
Office of the Court Administrator (OCA) for appropriate action.[7]

GIO Yap also received information that it would be difficult on the part of the prosecutors to conduct the
investigation because they regularly appear before the sala of petitioner for their cases. The Provincial
Prosecutor of Negros Occidental also manifested that they would inhibit if the case would be returned to
them. Consequently, he deemed that it would be more appropriate if the Office of the Ombudsman
would conduct the necessary investigation.[8]

Corollarilly, on March 8, 2003, petitioner compulsory retired from the service.[9]

After the preliminary investigation, GIO Yap found the existence of probable cause for the crime of
Reckless Imprudence Resulting to Homicide in OMB-V-C-03-0076-B. In a Resolution[10] dated August 12,
2003, he recommended the filing of the corresponding charges against the petitioner but dismissed the
charges against Liyage.[11]
On January 27, 2004, an Information[12] for Reckless Imprudence Resulting to Homicide was filed
against the petitioner before the MCTC Calatrava-Toboso, Negros Occidental, which was later docketed
as Criminal Case No. 5982-C.

On March 1, 2004, petitioner filed a Motion to Quash the Information[13] on the following grounds: (1)
that it does not conform substantially to the prescribed form; (2) that the court trying the case has no
jurisdiction over the offense charged and over his person; and, (3) that the officer who filed the
information had no authority to do so.[14] Ultimately, petitioner prayed that the information be
quashed and be referred to this Court for appropriate action.

On August 25, 2004, the MCTC issued an Order[15] granting the motion and, consequently, quashing the
information.

Respondents filed a motion for reconsideration, which the court granted in an Order[16] dated
November 23, 2004. The court opined, among other things, that the case had nothing to do with the
performance of petitioner's official functions and that an administrative complaint against him had
already been filed, as such, the purpose of referring cases against judges and court personnel to the
Supreme Court has already been served.[17] Accordingly, the MCTC set aside its earlier order and denied
petitioner's motion to quash, the decretal portion of which reads as follows:

WHEREFORE, in view of the foregoing considerations, the subject motion for reconsideration filed by the
prosecution is granted. Accordingly, the order of this court dated August 25, 2004, granting the
accused's motion to quash the information is hereby reconsidered and set aside and, therefore, the
accused's motion to quash the information is denied.

SO ORDERED.[18]

Petitioner then filed his Motion for Reconsideration,[19] which was denied in the Order[20] dated
January 26, 2005.

Hence, the petition.

At the outset, it is apparent that the present petition was directly filed before this Court, in utter
disregard of the rule on the hierarchy of courts which, thus warrants its outright dismissal. In Vergara, Sr.
v. Suelto,[21] this Court stressed that "[w]here the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the
specific action for the writ's procurement must be presented," thus:

The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not
be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue
the so-called extraordinary writs should be exercised only where absolutely necessary or where serious
and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to
actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or
agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where
the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional
Trial Court, it is in either of these courts that the specific action for the writ's procurement must be
presented. This is, and should continue, to be the policy in this regard, a policy that courts and lawyers
must strictly observe.[22]

Later, we reaffirmed such policy in People v. Cuaresma[23] after noting that there is "a growing tendency
on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and
sometimes even their appeals, passed upon and adjudicated directly and immediately by the highest
tribunal of the land." We stressed that -

[t]his Court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. x x x It is also shared by this Court, and by the
Regional Trial Court, with the Court of Appeals x x x. This concurrence of jurisdiction is not, however, to
be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of
the court to which application therefor will be directed. There is after all a hierarchy of courts. That
hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level
x x x courts should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefor, clearly and specifically set out in
the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands
upon the Court's time and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Court's docket. x x x.

Notwithstanding the dismissibility of the instant petition for failure to observe the doctrine on the
hierarchy of courts, this Court will proceed to entertain the case grounded as it is on a pure question of
law.

Petitioner argues that respondents violated this Court's pronouncements in Caoibes, Jr. v. Ombudsman,
[24] directing the Ombudsman to refer all cases against judges and court personnel filed before his office
to the Supreme Court;[25] and, in Fuentes v. Office of the Ombudsman-Mindanao,[26] restricting not
only the Ombudsman and the prosecution arm of the government, but also other official and
functionary thereof in initiating or investigating judges and court personnel.[27]

Petitioner's contentions are misplaced.

As correctly pointed out by the Solicitor General, the two cases cited by the petitioner involve the
performance of administrative and professional duties of the judges that were involved. Caoibes
concerns the judge's dealings with his fellow member of the Bench, while Fuentes touches on the acts of
a judge in the exercise of his official functions, particularly the issuance of a writ of execution.

In Caoibes, two members of the judiciary got entangled in a fight within court premises over a piece of
office furniture. One of the judges filed a criminal complaint before the Office of the Ombudsman and
an administrative complaint before this Court over the same incident. When the Ombudsman denied
the motion of Judge Caoibes to refer the case to the Supreme Court, he filed a petition for certiorari
before this Court seeking the reversal of the order. In granting the petition, the Court held that:

Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with exclusive
administrative supervision over all courts and its personnel. Prescinding from this premise, the
Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or
court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases
against judges and court personnel filed before it, referred to the Supreme Court for determination as to
whether an administrative aspect is involved therein.

xxxx

Maceda[28] is emphatic that by virtue of its constitutional power of administrative supervision over all
courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest
municipal trial court clerk, it is only the Supreme Court that can oversee the judges' and court
personnel's compliance with all laws, and take the proper administrative action against them if they
commit any violation thereof. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers.[29]

In Fuentes, the issue was whether the Ombudsman may conduct an investigation over the acts of a
judge in the exercise of his official functions alleged to be in violation of the Anti-Graft and Corrupt
Practices Act, in the absence of an administrative charge for the same acts before the Supreme Court.
[30] According to this Court:
Thus, the Ombudsman may not initiate or investigate a criminal or administrative complaint before his
office against petitioner judge, pursuant to his power to investigate public officers. The Ombudsman
must indorse the case to the Supreme Court, for appropriate action.

Article VIII, Section 6 of the Constitution exclusively vests in the Supreme Court administrative
supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals to the
lowest municipal trial court clerk.

Hence, it is the Supreme Court that is tasked to oversee the judges and court personnel and take the
proper administrative action against them if they commit any violation of the laws of the land. No other
branch of government may intrude into this power, without running afoul of the independence of the
judiciary and the doctrine of separation of powers.

Petitioner's questioned order directing the attachment of government property and issuing a writ of
execution were done in relation to his office, well within his official functions. The order may be
erroneous or void for lack or excess of jurisdiction. However, whether or not such order of execution was
valid under the given circumstances, must be inquired into in the course of the judicial action only by the
Supreme Court that is tasked to supervise the courts. "No other entity or official of the Government, not
the prosecution or investigation service of any other branch, not any functionary thereof, has
competence to review a judicial order or decision--whether final and executory or not--and pronounce it
erroneous so as to lay the basis for a criminal or administrative complaint for rendering an unjust
judgment or order. That prerogative belongs to the courts alone."[31]

Indeed, supervision over all inferior courts and court personnel, from the Presiding Justice of the Court
of Appeals to the lowest ranked court employee, is vested by the Constitution in the Supreme Court.
However, that prerogative only extends to administrative supervision. As such, the Ombudsman cannot
encroach upon this Court's task to oversee judges and court personnel and take the proper
administrative action against them if they commit any violation of the laws of the land.

In the case at bar, the criminal case filed against petitioner was in no way related to the performance of
his duties as a judge. The Information reveals:

The undersigned Graft Investigation Officer of the Office of the Ombudsman-Visayas, accuses JUDGE
RODOLFO B. GARCIA, of the crime of RECKLESS IMPRUDENCE RESULTING TO HOMICIDE, defined and
penalized under ARTICLE 365 OF THE REVISED PENAL CODE, committed as follows:
That on or about the 12th day of November, 2002, at about 5:15 o'clock in the afternoon, at Sitio Tunga,
Barangay Bantayanon, Municipality of Calatrava, Province of Negros Occidental, Philippines, and within
the jurisdiction of this Honorable Court, above-named accused JUDGE RODOLFO B. GARCIA, a public
officer, being then the Municipal Judge of the Municipal Circuit Trial Court of Calatrava-Toboso, Negros
Occidental, with Salary Grade 26, then driving a Land Cruiser Toyota bearing Plate No. FDB-193, along
the road at Sitio Tunga, Barangay Bantayanon, Calatrava, Negros Occidental, a public highway, did then
and there drive or operate said vehicle in a reckless, negligent and imprudent manner without taking the
necessary precaution considering the grade, visibility and other conditions of the highway, nor due
regard to the traffic rules and ordinances in order to prevent accident to persons or damage to property,
thereby causing by such recklessness, negligence and imprudence the said vehicle to hit and bump the
motorcycle driven by Francisco C. Ortega, Jr., bearing Plate No. FH-2324, with Josemarie Paghubasan as
his backrider, thereby causing upon Francisco C. Ortega, Jr. the following physical injuries, to with [sic]:

xxxx

which injuries resulted to the death of Francisco C. Ortega, Jr.

CONTRARY TO LAW.[32]

From the foregoing, the filing of the criminal charges against the petitioner before the MCTC was
warranted by the above circumstances. Under Article 365 of the Revised Penal Code, the penalty for the
crime of reckless imprudence resulting in homicide is prision correccional in its medium and maximum
periods ranging from two (2) years, four (4) months and one (1) day to six (6) years. Section 32 of Batas
Pambansa Blg. 129, as amended by Section 2 of Republic Act No. 7691,[33] provides as follows:

SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in Criminal Cases. - Except in cases falling within the exclusive original jurisdiction of Regional Trial
Courts and of the Sandiganbayan, Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts shall exercise:

(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within
their respective territorial jurisdiction; and

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6)
years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature,
value or amount thereof: Provided, however, That in offenses involving damage to property through
criminal negligence, they shall have exclusive original jurisdiction thereof.

As such, the jurisdiction of the MCTC over the case is beyond contestation.

Moreover, contrary to petitioner's allegation, the administrative aspect of the case against him was
endorsed by the Ombudsman-Visayas to the OCA for appropriate action.[34] In addition, an
administrative complaint against petitioner involving the same facts was filed by Julieta Ortega with the
OCA. The case was docketed as Administrative Matter OCA IPI No. 03-1403-MTJ, and is still pending to
date. Petitioner cannot feign ignorance of this fact considering that he filed a Comment and Answer to
the Complaint-Affidavit of Mrs. Julieta Ortega,[35] dated March 21, 2003. Thus, the Court's mandate, as
laid down in Caoibes, was more than satisfactorily complied with.

To reiterate, the case filed against petitioner before the MCTC is a criminal case under its own
jurisdiction as prescribed by law and not an administrative case. To be sure, trial courts retain jurisdiction
over the criminal aspect of offenses committed by judges of the lower courts.[36]

IN LIGHT OF THE FOREGOING, the petition is DENIED. The Municipal Circuit Trial Court of Calatrava-
Toboso, Negros Occidental, is ordered to proceed with the trial of Criminal Case No. 5982-C with
dispatch.

SO ORDERED.

Ynares-Santiago, Austria-Martinez, Tinga and Leonardo-De Castro, JJ., concur.

511 Phil. 56

SECOND DIVISION

[ A.C. No. 5708, November 11, 2005 ]

BERNARDO A. TADLIP, COMPLAINANT, VS. ATTY. FIDEL H. BORRES, JR., RESPONDENT.

RESOLUTION

TINGA, J.:

Lawyers in government service should be more sensitive in their adherence to their professional
obligations under the Code of Professional Responsibility, for their disreputable conduct is more likely to
be magnified in the public eye.[1] The actuations of respondent brought to light in this case bring
disrepute not only to his good name, but to the government and to the State. Restoration of public trust
cannot ensue without an equivocal statement from this Court that such behavior will not stand
unpunished.

We consider the administrative liability of Atty. Fidel H. Borres, Jr. (respondent), a Provincial Agrarian
Reform Adjudicator (PARAD) of the Department of Agrarian Reform Regional Arbitration Board (DARAB)
for rendering a blatantly irregular decision.

The facts of the case are as follows:

On 3 October 1987, by virtue of Presidential Decree No. 27 (PD 27), the Ministry of Agrarian Reform
issued Original Certificate of Title No. P-106 (OCT No. P-106), Emancipation Patent No. A-028380 to
Eusebio E. Arce conveying to him Three Thousand Nine Hundred Eight (3,908) square meters of
agricultural land situated in Mambajao, Camiguin. The land was formerly owned by Angel Madarieta.[2]

Subsequently, on 14 December 1987, a Deed of Transfer under PD 27 was executed by Angel Madarieta,
as represented by his wife, Pelagia Madarieta (Madarieta) and Eusebio E. Arce.[3] The parties agreed
that the land would be given to Arce in consideration of Seven Hundred Fifty (750) kerosene cans of
palay.[4]

Arce died on 23 December 1993. As he was succeeded by two minor daughters ages 5 and 6 years old,
herein complainant Tadlip, who is his nephew, assumed the responsibility of tilling the land. Tadlip
caused the reallocation of the disputed land through the aid of the Bureau of Legal Assistance,
Department of Agrarian Reform, Yuming, Mambajao, Camiguin (BLA-DAR) in a petition dated 9 October
1997 and docketed as DARAB Case No. X-861.[5]

Respondent, as PARAD of the DARAB, issued an Order[6] dated 3 April 1998 granting the petition of
complainant reallocating the land to him and the heirs of Arce.

However, the title to the parcels of land was never transferred to complainant and the heirs of Arce
because unknown to them, respondent rendered another Order[7] dated 26 January 1999 canceling the
registration of the same OCT No. P-106 and ordering the issuance of a transfer certificate of title ex parte
in favor of Madarieta in DARAB Case No. X-99-02.

As borne out by the records of the case, Madarieta filed two pleadings on 22 January 1999. The first was
a Petition[8] entitled "In the Matter of Cancellation of Original Certificate of Title No. EP-
106/Emancipation Patent No. A-028380 and Retention Right" docketed as DARAB Case No. X-99-02.
Madarieta based her Petition on the ground that she was not able to exercise her right of retention, the
land is idle, abandoned, unattended and unproductive and that the late Eusebio Arce did not comply
with the agreed monthly amortization as payment for the lot. By the nature of the pleadings filed,
Madarieta obviously executed an ex parte proceeding. Hence, no attempt was made to implead Tadlip or
the Arce heirs, despite the existence of their legal interest over the property and reality that a clear
deprivation of such right would ensue should the petition be granted.

The second was a Complaint[9] entitled Pelagia Madarieta v. Heirs of Eusebio Arce/Bernardo A. Tadlip,
docketed as DARAB Case No. X-99-04 for Cancellation of Original Certificate of Title No. EP 106 and
Retention. In the said complaint, Madarieta substantially alleged the same facts and prayed for the same
remedies except that she included one more allegation, that which pertains to the reallocation of the
land to complainant.

Complainant alleged that the Complaint was filed by Madarieta upon the instruction of respondent, to
correct the procedural flaw attending to her initial Petition.[10] Interestingly, complainant also asserts
that the filing of the petition and complaint of Madarieta was not simultaneously done albeit it would
seem as if they were. According to him, respondent PARAD, after rendering the Order dated 26 January
1999, advised Madarieta to file a complaint impleading complainant and the heirs of Arce so as to make
it appear that the cancellation of the title of the emancipated land was regular and legal.[11] In effect,
complainant maintains that the filing of the petition and the complaint by Madarieta on 22 January 1999
was not simultaneous but successive,[12] where after respondent rendered the Order for the petition,
Madarieta thereafter filed the complaint at a later date but made it appear that the same was also filed
on 22 January 1999.

In any event, the Petition, despite its obvious flaws, was decided by respondent in favor of Madrieta just
four (4) days after it had been filed. Thus, OCT No. P-106 was ordered cancelled even before Tadlip or the
heirs of Arce had any possible opportunity to be heard.

Complainant discovered this fact only when the DARAB-Camiguin furnished the BLA-DAR a copy of the
Order in DARAB Case No. X-99-02 on 25 February 1999. Complainant filed an Urgent Motion for
Reconsideration[13] but this was denied by respondent in an Order[14] dated 19 March 1999. As if
complainant's travails in the hands of respondent were not enough, respondent also rendered on 17
May 1999 a Decision[15] on the Complaint in DARAB Case No. X-99-04 also adverse to complainant.

Matters were aggravated when Madarieta filed a motion for execution pending appeal on 25 May 1999.
[16] The same was granted by respondent on 11 June 1999[17] despite the vehement opposition[18] of
complainant who cited procedural irregularities according to the DARAB Rules of Procedure, particularly
the rule that any motion for execution of the decision of the Adjudicator pending appeal shall be filed
with the DARAB, and not the adjudicator.[19]

Hence, on 20 March 2002, complainant filed this instant administrative complaint. On 7 August 2002,
this Court required respondent to comment on the complaint.

Respondent, in his comment dated 9 December 2002, denied all the accusations hurled against him. He
related that complainant filed an "appeal and certiorari" case relative to the land dispute but instead of
waiting for the result, the latter filed another case before the Ombudsman and subsequently this
administrative case.

In a resolution dated 19 February 2003, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.

The IBP found that respondent violated Canon I of the Code of Professional Responsibility by
disregarding and failing to apply the specific provisions of the 1994 New Rules of Procedure[20] (DARAB
Rules) in disposing of DARAB Case Nos. X-99-02 and X-99-04 and recommended that respondent be
suspended from the practice of law for a period of two (2) months with a warning that a repetition of the
same or similar act will be dealt with more severely.[21]

We agree with the findings of the IBP but hold that the recommended penalty is quite slight for the
infractions done by respondent.

This Court cannot delve into the factual or legal questions raised by complainant. We can only rule on its
administrative aspect. However, for us to fully dispose of the case, the multiple violations of respondent
must be subjected to scrutiny and scorn.

Respondent is not only a lawyer practicing his profession, but also a provincial adjudicator, a public
officer tasked with the duty of deciding conflicting claims of the parties. He is part of the quasi-judicial
system of our government. Thus, by analogy, the present dispute may be likened to administrative cases
of judges whose manner of deciding cases was similarly subject of respective administrative cases.

To hold the judge liable, this Court has time and again ruled that the error must be "so gross and patent
as to produce an inference of ignorance or bad faith or that the judge knowingly rendered an unjust
decision."[22] It must be "so grave and on so fundamental a point as to warrant condemnation of the
judge as patently ignorant or negligent."[23] Otherwise, to hold a judge administratively accountable for
every erroneous ruling or decision he renders, assuming that the judge erred, would be nothing short of
harassment and that would be intolerable.[24]

However, it has also been held that when the law violated is elementary, the failure to know or observe
it constitutes gross ignorance of the law. The disregard of established rule of law which amounts to gross
ignorance of law makes a judge subject to disciplinary action.[25]

In Pesayco v. Layague,[26] the Court had the opportunity to declare that:

A judge must be acquainted with legal norms and precepts as well as with procedural rules. When a
judge displays an utter lack of familiarity with the rules, he erodes the public's confidence in the
competence of our courts. Such is gross ignorance of the law. One who accepts the exalted position of a
judge owes the public and the court the duty to be proficient in the law. . . . Basic rules of procedure
must be at the palm of a judge's hands.[27]
Needless to say, respondent was sorely remiss in his duties as the PARAD of Camiguin in the disposition
of cases filed by Madarieta.

He violated Rule VI of the DARAB Rules, to wit:

SECTION 1. Issuance of Summons, Time to Answer and Submission of Evidence. Upon the filing of the
complaint or petition, the hour/time, day, month, and year when it was filed shall be stamped thereon.
The corresponding summons and notice of hearing to the adverse party, attaching therewith a copy of
such complaint or petition, affidavit and documentary evidence if any, shall be served by personal
delivery or registered mail to the defendant or respondent within two (2) days therefrom. The summons
and notice of hearing shall direct the defendant or respondent to file an answer to the complaint or
petition and submit counter affidavit and other documentary evidence, if any, within a non-extendible
period of ten (10) days from receipt thereof furnishing a copy to the petitioner or the complainant. The
summons shall also specify the date, time and place of the hearing and order the parties and their
witnesses to appear at the scheduled date of hearing. The aforementioned affidavits and counter-
affidavits of the witnesses shall take the place of their direct testimony. Failure of any party to submit his
affidavits or counter affidavits as herein directed will be interpreted by the Adjudicator or Board as a
waiver to present evidence or that he has more evidence to submit and the case could be considered
submitted for decision.

Clearly, complainant was a party in interest in the two DARAB cases filed by Madarieta as he stood to be
adversely affected by the decision of respondent. Yet, he was never summoned in DARAB Case No. X-99-
02, which was decided against him just four (4) days after it was filed. Evidently complainant had no
reasonable opportunity to be heard before he was divested of the land over which respondent, just a
few months earlier, had affirmed complainant's rights thereto.

It would be absurd to accept the reasoning of respondent that since complainant was not impleaded as a
party to DARAB Case No. X-99-02, the latter was not entitled to be notified of the hearing and the
eventual disposition of the case. The DARAB Rules requires the joinder of all parties-in-interest whether
as defendants or respondents. Parties-in-interest are defined as "(a)ll persons who claim an interest in
the dispute or subject matter thereof adverse to complainant or petitioner, or who are necessary to a
complete determination or settlement of the issue involved therein."[28] Complainant, as the holder of
title and possession of the property sought to be reconveyed, is ineluctably a party-in-interest.

Respondent should have dismissed Madarieta's petition for failure to implead complainant, the heirs of
Arce, and all others who derive title from them.[29]
Complainant intimates that the Complaint was instituted precisely to cure the defect attending the
Petition. The Court cannot conclude definitively that this remedial measure was instigated on the
suggestion of the respondent. But assuming this were true, respondent's undue haste in granting the
Petition just four days after it was filed practically obviated whatever curative effect the Complaint may
have served, since the relief sought in the latter was the same already granted in the former. Whatever
proceedings may have transpired in the hearing of the Complaint, these were a redundancy, considering
that the relief prayed for had already been granted.

Furthermore, as correctly observed by the IBP Commissioner, complainant's urgent motion for
reconsideration may very well be considered by respondent as a motion for intervention and yet
respondent denied the same.

Remarkably, respondent, nine months prior to his Order dated 26 January 1999, has rendered an Order
dated 3 April 1998 reallocating the land in question from Arce to complainant. Respondent himself had
vested complainant with an interest in the lot with all the rights therewith accompanying the order of
reallocation. He, therefore, cannot afterwards deny such right or interest from complainant to defend
the latter's claim and subsequently cancel OCT No. P-106 unilaterally. In doing so, complainant's
possession, if not ownership of the land has been adversely affected.

Complainant has also alleged that he was able to obtain positive action on his petition for reallocation
only after paying the respondent One Thousand (P1,000.00) pesos.[30] He also categorically states that
"there was a rumored pay-off between respondent and the Madarieta Family."[31] Admittedly through,
no other evidence was given to corroborate the alleged "pay-off" and his payment of P1,000.00. Thus,
we cannot deem these serious allegations as proven. Still, the dubious nature of the decisions is
inescapable, and on that basis administrative liability can ensue.

Compounding respondent's liability is the fact that in granting execution pending appeal, he also
disregarded Rule XII of the DARAB Rules, which states:

SECTION 2. Execution pending appeal. Any motion for execution of the decision of the Adjudicator
pending appeal shall be filed before the Board, and the same may be granted upon showing good
reasons under conditions which the Board may require. (Emphasis ours.)

It is unmistakably stated in unequivocal terms that execution pending appeal must be filed before the
Adjudication Board. Respondent violated this rule in rendering an order of execution pending appeal
when such authority has been given to the Board alone. Even the respondent cited the said provision of
the DARAB Rules in his position paper[32] and yet it seems that he merely dispensed of the rules and
replaced it with his own system of procedure contrary to the DARAB Rules.

In addition, on 14 May 1993, the DAR Region X, Macanhan, Carmen, Cagayan de Oro received an
advisory through an official radiophone message addressed to all Regional Agrarian Reform Adjudicators
(RARADs) and PARADs of the DAR from the then Undersecretary Lorenzo Reyes not to execute any
ejection proceedings promptly appealed to the DARAB.[33] On 15 September 1993, the same
undersecretary issued another official radiophone message addressed to RARAD Jimmy Tapangan of DAR
Region X, Cagayan de Oro which is faithfully reproduced as follows:

"HELLO, PLEASE ADVISE OUR ADJUDICATORS NOT TO EXECUTE DECISIONS WHERE NOTICE OF APPEAL
WAS FILED WITHIN THE REGLEMENTARY PERIOD INSTEAD THE RECORDS OF THE CASE SHOULD BE
IMMEDIATELY FORWARDED TO THE BOARD PD SOME MEMBERS OF THE BOARD ARE CONTEMPLATING
OF THROWING THE BOOKS TO THOSE WHO INSIST ON EXECUTING DECISIONS THAT ARE PROMPTLY
INSPITE OF OUR PREVIOUS ADVISES NOT TO DO SO PD THE BOARD HAS CONSISTENTLY RULED IN SO
MANY DECISIONS ALREADY THAT DECISIONS THAT ARE PROMPTLY APPEALED CAN NO LONGER BE
EXECUTED BY THE ADJUDICATOR CONCERENED PD THESE RADIOMESSAGE IS THE OFFICIAL ADVISE
VERBAL OF THE BOARD PD KEEP UP THE GOOD WORK WARMEST REGARDS END. . . ."[34]

Hence, as early as 1993, the RARADs and PARADs have been aware that executions pending appeal was
to be acted upon by the DARAB and not by them.

Respondent's non-observance of the DARAB Rules on notice and hearing and his grant to Madarieta of
her motion for execution pending appeal in effect deprived complainant of the land he tills and the
source of his income. Complainant woke up one day not knowing that the emancipated land which he
thought was already reallocated to him was lost by order of respondent. He was not given the chance to
defend his claim over the property. This is tantamount to deprivation of property without due process of
law, a constitutional guarantee available to every individual.

The actual review of the subject issuance of the respondent should be undertaken in the proper judicial
proceedings, and not by this Court at this time via an administrative action. Nevertheless, respondent's
culpability under the Code of Professional Responsibility is indubitable. As a lawyer, the IBP determined,
and we subscribe to such determination, that respondent violated Canon 1 of the Code of Professional
Responsibility which states:

Canon 1—A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law
and for legal processes.
While the duty to uphold the Constitution and obey the laws is an obligation imposed upon every citizen,
a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of
the law, a lawyer should moreover make himself an exemplar of others to emulate.[35]

A member of the bar who assumes public office does not shed his professional obligations. Hence the
Code of Professional Responsibility, promulgated on 21 June 1988, was not meant to govern the conduct
of private practitioners alone, but of all lawyers including those in government service. This is clear from
Canon 6 of the said Code. Lawyers in government service are public servants who owe the utmost
fidelity to the public service. Thus they should be more sensitive in the performance of their professional
obligations, as their conduct is subject to the ever-constant scrutiny of the public.[36]

Respondent, as a Provincial Adjudicator of the DARAB, was reposed with a higher gravamen of
responsibility than a lawyer in private practice. The recommended penalty of two months suspension is
too light under the circumstances, and a penalty of six (6) months' suspension more appropriate.

As held in recent cases,[37] the penalty for a judge found to be guilty of gross ignorance of the law is six
(6) months. In the case at bar, after due consideration of the facts involved, the Court believes and so
holds that the same penalty should be imposed upon respondent as he disregarded pertinent rules of
procedure of the DARAB that led to the unjust deprivation of complainant of his property.

WHEREFORE, premises considered, respondent is hereby SUSPENDED from the practice of law for a
period of six (6) months. Let a copy of this Resolution be furnished the Bar Confidant for appropriate
annotation in the record of respondent.

SO ORDERED.

Puno, Acting C.J., (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur.

Chico-Nazario, J., on leave.

[1] R. AGPALO, COMMENTS ON THE CODE OF PROFESSIONAL RESPONSIBILITY AND THE CODE OF
JUDICIAL CONDUCT 47 (2001).

[2] Rollo, p. 70.

[3] Id. at 52-54.

[4] Id. at 52.

[5] Id. at 122-124.

[6] The dispositive portion of the Order provides:

WHEREFORE, Original Certificate of Title No. EP-106, Emancipation Patent No. A-028380 issued in favor
of Eusebio E. Arce is hereby ordered cancelled and/or revoked, and a new Emancipation Patents are
hereby ordered issued in favor of petitioner Bernardo A. Tadlip covering an area of TWO THOUSAND
NINE HUNDRED (2,900) SQUARE METERS and HEIRS OF EUSEBIO E. ARCE covering an area of ONE
THOUSAND (1,000) SQUARE METERS.

The Register of Deeds of Camiguin is hereby ordered to cancel and/or revoked the registration of Original
Certificate of Title No. EP-106, Emancipation Patent No. A-028380 issued in the name of Eusebio E. Arce.

SO ORDERED.

Id. at 34.

[7] Id. at 37-38.

[8 ] Id. at 72-74.

[9] Id. at 43-45.

[10] Complainant alleges that while the Complaint was dated 22 February 1999, it was actually only filed
on 25 February 1999.

[11] Id. at 7.

[12] In his Position Paper, complainant pegs the actual date of filing of the Complaint was as 25 February
1999, although there is no definitive proof of such date of filing.

[13] Rollo, pp. 40-42.

[14] Id. at 3-44.

[15] The dispositive portion of the assailed decision reads:

WHEREFORE, premises above considered, Original Certificate of Title No. P-106, Emancipation Patent No.
A-028380 issued in the name of Eusebio E. Arce is hereby ordered cancelled and/or revoked for being
null and void ab initio. The Register of Deeds of Camiguin is hereby ordered to cancel the registration of
the aforesaid title, and issue Transfer Certificate of Title in favor of petitioner pursuant to DAR
Administrative Order No. 08, Series of 1995, P.D. No. 27, Executive Order No. 228 and R.A. No. 6657.

Respondent is hereby ordered to turn over immediately to petitioner that portion of land illegally
awarded with an area of One Thousand Five Hundred Sixty Three (1,563.2) square meters, more or less,
and the area of Two Thousand Three Hundred Forty Four (2,344.8) [s]quare meters, more or less,
covered by retention of petitioner shall be under leasehold system.
Both parties are hereby ordered to proceed to the MARO of Mambajao, Camiguin to execute a
Leasehold Contract pursuant to Section 12, of R.A. No. 6657.

SO ORDERED.

G.R. No. L-28344 August 27, 1976

DOLORES T. OCAMPO, Petitioner, vs. HON. ABELARDO SUBIDO, Commissioner of Civil Service,
HON. JOSE YULO, Secretary of Justice and LEONARDO T. JOSON, Respondents.

MARTIN, J.:

This is a case of promotional appointment assailed as having assailed having been extended by a former
Secretary of Justice and approved by the then Commissioner of Civil Service in violation of Section 23 of
the Civil Service Act of 1959, as amended, more particularly the principle of seniority and the next-in-
rank rule.chanroblesvirtualawlibrarychanrobles virtual law library

Sometime in 1962, the position of Deputy Clerk of Court in the cadastral section of the Court of First
Instance of Nueva Ecija was left vacant by the promotion of the incumbent Deputy Clerk of Court.
Respondent-appellee Leonardo T. Joson, a Docket Clerk, high school graduate and Second grade eligible,
applied for the position. Petitioner-appellant opposed the appointment in a letter dated July 27, 1964.
According to her, she is more senior, next in rank, and better qualified than the proposed appointee, She
is a first grade eligible and a holder of a Bachelor's degree in Commerce, with units earned for Bachelor
of Science in Education. On September 1, 1964, then Secretary of Justice Salvador L. Mariño appointed
Leonardo T. Joson as "Deputy Clerk of Court of the Court of First Instance of Nueva Ecija." Because of the
Prior Protest of petitioner-appellant, the Commissioner of Civil Service returned the appointment to the
Secretary of Justice on September 8, 1964.chanroblesvirtualawlibrarychanrobles virtual law library
Thereupon, the Secretary of Justice referred the protest of petitioner-appellant to Executive Judge
Salvador C. Reyes of the Court of First Instance of Nueva Ecija for comment. On September 14, 1964,
Judge Reyes obliged and recommended the promotion of respondent Joson to the vacant position. He
commented that "(w)hile it is true that Stenographer Ocampo is a first grade eligible, there are also
other compelling reasons why Mr. Joson deserves this promotion. Among these are his long government
service, experience, high efficiency, industry, honesty, dedication as a public servant and other personal
qualities. Because of these, the undersigned has full trust and confidence in Mr. Joson. 1 The Secretary of
Justice concurred fully in the recommendation of Judge Reyes, "considering that the rule on seniority has
been observed," and endorsed Joson's appointment to the Commissioner of Civil Service on September
16, 1964.chanroblesvirtualawlibrarychanrobles virtual law library

On October 8, 1964, Civil Service Commissioner Abelardo Subido returned the appointment "without
action," with the request that the position be filled by promotion of an employee who meets the
required qualifications, while dismissing petitioner-appellant's protest. Thus,

Records show that Mrs. Ocampo now holds the position of Stenographer in the CFI Nueva Ecija at P3720
per annum effective September 1, 1963, whereas, Mr. Joson is a Docket Clerk, same Court at P2280 per
annum effective July 1, 1961. Considering their present positions, Mr. Joson and Mrs. Ocampo may not
be considered next in rank employees to the position of Deputy Clerk of Court; hence, neither of them
may claim preference for appointment thereto under Sec. 23, par. 3 of Rep. Act 2260. There is therefore
no merit to the protest of Mrs. Ocampo.

However, the proposed qualifications standard for the position of Deputy Clerk of Court calls for a holder
of Bachelor of Laws degree with either Bar (RA 1080), Legal Assistant or Legal Researcher eligibility. As
these papers show that Mr. Joson is only a high school graduate, he does not meet the minimum
qualifications requirement for appointment as Deputy Clerk of Court. Moreover, his Second Grade
eligibility (R.A. 186) is not appropriate for appointment to this
position.chanroblesvirtualawlibrarychanrobles virtual law library

Nonetheless, the Secretary of Justice requested reconsideration of the Commissioner's disapproval of

respondent Joson's appointment for the reason that, first, the Department of Justice had not fixed the
Qualification Standard for Deputy Clerk of Court, the Civil Service Commission having granted its request
for extension to file its merit and promotion plan together with the Qualification Standard of positions;
second, the proposed Qualification Standard should apply only to original appointments, otherwise it
would be unfair to deserving employees in the court who have given the best years of their lives serving
it and would be depriving them of the much awaited opportunity for promotion, after having acquired
the experience and training in performing the duties in said office; and third, for every year lacking in
college education, one year of service in the agency would suffice, Correspondingly, the Civil Service
Commissioner considered the experience gained by respondent Joson in the court as sufficient to offset
what he lacked in legal education and approved his appointment on December 24,
1964.chanroblesvirtualawlibrarychanrobles virtual law library

Of this approval, petitioner-appellant moved for a reconsideration, but the Civil Service Commissioner
denied her motion on March 9, 1966, ruling that "while Mrs. Ocampo may edge Mr. Joson in point of
educational qualification, civil service eligibility and competence, because she is not the employee in
rank, the appointing authority has discretion to choose another employee for promotion pursuant to
Section 23, par. 3 of Republic Act 2260." As a consequence, petitioner-appellant commenced a suit for
mandamus and certiorari in the Court of First Instance of Manila to annul the appointment issued to
Leonardo T. Joson and declare her entitled to the position as the law
requires.chanroblesvirtualawlibrarychanrobles virtual law library

On June 7, 1967, upon a motion to dismiss filed by respondent Joson, the Court of First Instance of
Manila dismissed petitioner-appellant's complaint for absence of cause of action. The trial court
resolved:

Under Republic Act 4814, petitioner does not possess the qualification for appointment to the position
of Deputy Clerk of a branch of Courts of First Instance. According to her own complaint, she is only a
stenographer, not a member of the Bar authorized to practice law in the Philippines. Not having the legal
qualification for the position of deputy clerk of Courts of First Instance, her complaint states no cause of
action. On the other hand, Republic Act 4814 exempts respondent Leonardo T. Joson from its operation,
he having been appointed prior to its effectively.

From this order of dismissal, petitioner Ocampo interposed the present

appeal.chanroblesvirtualawlibrarychanrobles virtual law library

Does the complaint of petitioner Ocampo state a cause of action? Is she anyway entitled to the position
in question?chanrobles virtual law library
1. We do not share the view of the court below in dismissing petitioner-appellant's complaint for
lack of cause of action on the strength of Republic Act 4814. The law which amended Section 46 of the
Judiciary Act on June 18, 1966, relevantly provides:

The clerks of court, assistant clerks of court and branch clerks of court or Courts of First Instance shall be
appointed by the President of the Philippines with the consent of the Commission on Appointments. No
person shall be appointed to any of these positions unless he is duly authorized to practice law in the
Philippines: Provided, however. That this requirement shall not affect persons who, at the date of the
approval of this Act, are holding any of the positions of clerk of court, assistant clerk of court, branch
clerk of court or deputy clerk of court actually performing the work of the of a clerk of court assigned as
such to a branch of the Court of First Instance, and who shall continue in office and be considered as
clerks of court, of a clerk of court assigned as such to a branch of the court of First Instance, and who
shall continue in office and be considered as clerks of court, assistant clerks of court, and branch clerks of
court, respectively, in their corresponding courts or branches thereof without the need of new
appointments ...

Proceeding from the assumption that the contested position is " branch clerk of court", as to which the
requirement of membership in the Bar is imposed, the trial court held petitioner-appellant without
cause of action 2to question the appointment, she not being duly authorized to practice law. Petitioner-
appellant is a mere holder of a Bachelor's degree in Commerce, not a lawyer by profession. The
assumption is, of course, flawed with falsity. Notwithstanding the amendatory act, the position remained
unchanged. It was not automatically converted into "branch clerk of court". After the effectivity of the
amendment on June 18, 1966, respondent Joson stayed as Deputy Clerk of Court;" he did not become a
"branch clerk of court." In fact, from his appointment on September 1, 1964, respondent Joson
continued to occupy the Same contested position until the court below ordered the dismissal of
petitioner-appellant's complaint on June 7, 1967, or even up to the present. 3 Possibly, respondent Joson
did not meet the condition set forth in the amendatory act, i.e., "deputy clerk of court actually
performing the work of a clerk of court assigned as such to a branch of the Court of First Instance." That
merely because petitioner-appellant is not a member of the Bar is, therefore, no valid reason to bar her
from questioning Joson's appointment. Membership in the Bar is required only for the position of clerk
of court, assistant clerk of court, or branch clerk of court. Since the position disputed by petitioner
appellant is that of a "deputy clerk of court," the amendatory law does not
apply.chanroblesvirtualawlibrarychanrobles virtual law library

2. But, the controversy does not end there. Petitioner appellant claims that she is rightfully entitled
to the position of deputy clerk of court. According to her, she is more senior, next in line, and better
qualified than the appointee, Leonardo T. Joson, vis-a-vis the latter's qualifications. She holds a
Bachelor's degree in Commerce and has earned units in Education, whereas respondent Joson is a mere
high school graduate. She is a first grade eligible, whereas respondent Joson is only a second
grade.chanroblesvirtualawlibrarychanrobles virtual law library

Previously, vacancies in the competitive service in the government are filled in accordance with Section
23 of the Civil Service Act of 1959, as amended. That section provides, "whenever a vacancy occurs in
any position in the Competitive service in the government ..., the officer or employee next in rank
preferably in the same office, who is competent and qualified to hold the position and who possesses an
appropriate civil service eligibility shall be appointed thereto. If the vacancy is not filled by promotion as
provided herein, then same shall be filled by transfer of present employees in the government service,
by reinstatement, by re-employment of persons separated through reduction in force, or by
appointment of persons with the Civil Service eligibility appropriate to the position ... 4 In other words, a
vacant position (be it new or created by the cessation of an incumbent in office shall be filled by
promotion of the ranking officer or employee, who is competent and qualified to hold the same. 5
Otherwise. the vacancy may be filled by transfer, reinstatement, re-employment or certification, not
necessarily in that order. 6 chanrobles virtual law library

We do not think that the principle of seniority and the next in rank rule had been transgressed by the
Secretary of Justice in appointing respondent Joson, undoubtedly in the nature of a promotion as Deputy
Clerk of Court. The Secretary of Justice expressly represented that the rule on seniority had been
observed by his department when the promotional appointment of respondent Joson was prepared. In
like manner, the Commissioner of Civil Service dismissed petitioner-appellant's Protest and denied her
motion for reconsideration because her position of stenographer is not next in rank to the position of
Deputy Clerk of Court. Not being next in rank, she could not claim preference under Section 23 to the
vacant office, even. on the assumption that she possesses, as she claims, better qualifications and
education than respondent Joson. 7chanrobles virtual law library

3. Respondent Joson's qualifications are attacked by petitioner Ocampo as insufficient for the
position of Deputy Clerk of Court. We failed to see, however, any existing law or regulation specifically
enumerating the qualifications for said position with which Joson's qualifications could be compared. On
the contrary, the Secretary of Justice had expressed that the Justice Department had not yet fixed the
Qualification Standard for Deputy Clerk of Court, 8 the Civil Service Commission has granted it further
extension to file its merit and promotion plan together with the Qualification Standard of positions. In
the absence of this Qualification Standard, the Secretary of Justice, as the department head of the
Justice Department, enjoys the clear prerogative to resolve who can best discharge the functions of the
vacant office after ascertaining the nature of the work to be done. This is because a department head is
settled in that knowledgeable position of discerning the primarily needs of the office and the answers
thereto, more especially as regards the proper personnel force. In the words of Justice Fernando,
speaking for the Court in Reyes v. Abeleda, 9 "If there be adherence to the concept that public office is a
public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies
public interest. For it is axiomatic that public needs could best be attended to by officials, about whose
competency and ability there is no question. To that overmastering requirement, personal ambition
must of necessity yield. Discretion if not plenary, at least sufficient, should thus be granted to those
entrusted with the responsibility of administering the officers concerned, primarily the department
heads. They are in the most favorable position to determine who can best fulfill the functions of the
office thus vacated." The exception lies where a law, ordinance, or regulation specifies the qualifications
for a particularly position, compliance with which is mandatory.chanroblesvirtualawlibrarychanrobles
virtual law library

4. By and large, the appointing power of the Secretary of Justice does not appear to have been
indiscriminately exercised. Respondent Joson's experience and training in the Court of First Instance of
Nueva Ecija since his appointment on August 6, 1946, especially his present duties as Docket Clerk, which
is allied to the position of Deputy Clerk of Court, according to the Secretary. had been viewed by the
latter as enough to qualify him "very satisfactorily" for the said position. His lack of college education is
offset by his years of service in the court. So did the Commissioner of Civil Service similarly hold in
reconsidering the disapproval of Joson's appointment. It has decided "to consider the experience gained
by Mr. Joson in the Count of First instance as sufficient to offset what he lacks in legal education,"
Moreover, the Secretary of Justice has opined that the proposed Qualification Standard, if at all, should
apply only to original appointments (promotional appointment) excluded in order not to prejudice these
deserving employees 'in the court who have given the best years of their lives serving
it.chanroblesvirtualawlibrarychanrobles virtual law library

We accord respect to the foregoing views of the Secretary of Justice In essence, the power to appoint is a
matter of discretion. 10 The appointing power has a 'Aide latitude of choice as to who is best qualified
for the position. 11 No "rigid or mechanistic formula" is imposed by law upon it, "compliance with which
is inexorable and a devation therefrom fatal." 12 Such discretion is generally unhampered by judicial
intervention. Possibility of abuse of power to appoint is not discounted though. But, this is no argument
against the concession of power as there is no power not susceptible of abuse. 13 chanrobles virtual law
library

5. Perforce, certiorari does not lie to render the promotional appointment extended to respondent
Leonardo T. Joson null and void. Nor in the writ of mandamus available to compel the respondent
officials to declare petitioner Dolores T. Ocampo entitled to the position in question. mandamus never
issues in doubtful cases. 14 It only issues when there is a clear legal duty imposed upon the officer
sought to be compelled to perform the act, or the duty of appointing petitioner-appellant in the present
case, and when the party in whose favor the appointment is to be extended has failed clear legal right to
such appointment. 15Petitioner-appellant has failed to show that she has a legal right to the position of
Deputy Clerk of Court respondent officials could be compelled to
do.chanroblesvirtualawlibrarychanrobles virtual law library

ACCORDINGLY, the appealed order of the lower court, dated June 7, 1967, dismissing petitioner-
appellant's complaint for certiorari and mandamus is hereby sustained. The appointment of respondent
Leonardo T. Joson to the position of Deputy Court of Court is declared to be in accordance with law. No
costs.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz Palma and Concepcion, Jr., JJ.,

concur.chanroblesvirtualawlibrarychanrobles virtual law library

Concepcion, Jr., J., was designated to sit in the First Division.