1
Requirements for Public Office
No. L-79974. December 17, 1987.*
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA,
petitioners, vs. SALVADOR MISON, in his capacity as
COMMISSIONER OF THE BUREAU OF CUSTOMS, AND
GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION ON
APPOINTMENTS, intervenor.
Statutory Construction; Constitution; Intent of the framers of the
constitution and of the people adopting it must be given effect.—The
fundamental principle of constitutional construction is to give ef fect to
the intent of the framers of the organic law and of the people adopting
it. The intention to which force is to be given is that which is embodied
and expressed in the constitutional provisions themselves. The Court
will thus construe the applicable constitutional provisions, not in
accordance with how the executive or the legislative department may
want them construed, but in accordance with what they say and
provide.
Same; Same; Same; 1935 Constitution requires confirmation by
the Commission on Appointments of all presidential appointments,
under the 1973 constitution the president has absolute power of
appointment while under the 1987 Constitution, only the first group of
appointments requires confirmation of the Commission on
Appointments.—In the 1935 Constitution, almost all presidential
appointments required the consent (confirmation) of the Commission
on Appointments, It is now a sad part of our political history that the
power of confirmation by the Commission on Appointments, under the
1935 Constitution, transformed that commission, many times, into a
venue of "horse-trading" and similar malpractices. On the other hand,
the 1973 Constitution, consistent with the authoritarian pattern in
which it was molded and re-molded by successive amendments,
placed the absolute power of appointment in the President with hardly
any check on the part of the legislature. Given the above two (2)
extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of
the 1987 Constitution and the people adopting it, struck a "middle
ground" by requiring the consent (confirmation) of the Commission on
Appointments for the first group of appointments and
ADMELEC Cases
_______________
* EN BANC.
550
550 SUPREME COURT REPORTS
ANNOTATED
Sarmiento III vs. Mison
leaving to the President, without such confirmation, the
appointment of other officers, i.e., those in the second and third groups
as well as those in the fourth group, i.e., officers of lower rank.
Same; Same; Same; Same; Under the 1987 Constitution, the
clear and expressed intent of its framers is to exclude presidential
appointments from confirmation on the Commission on Appointments
except appointments to offices mentioned in the first sentence of Sec.
16 Article VII.—In the 1987 Constitution, however, as already pointed
out, the clear and expressed intent of its framers was
to exclude presidential appointments from confirmation by the
Commission on Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16, Article VII.
Consequently, there was no reason to use in the third sentence of
Sec. 16, Article VII the word "alone" after the word "President" in
providing that Congress may by law vest the appointment of lower-
ranked officers in the President alone, or in the courts, or in the heads
of departments, because the power to appoint officers whom he (the
President) may be authorized by law to appoint is already vested in
the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article
VII.
Same; Same; Same; Same; Same; The word "alone" in the third
sentence of Sec. 16 Art. VII of the 1987 Constitution is a redundancy
in the light of the second sentence of Sec. 16 Article VII.—Therefore,
the third sentence of Sec. 16, Article VII could have stated merely that,
in the case of lower-ranked officers, the Congress may by law vest
their appointment in the President, in the courts, or in the heads of
various departments of the government. In short, the word "alone" in
the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a
literal import from the last part of par. 3, section 10, Article VII of the
1935 Constitution, appears to be redundant in the light of the second

sentence of Sec. 16, Article VII. And, this redundancy cannot prevail
over the clear and positive intent of the framers of the 1987
Constitution that presidential appointments, except those mentioned
in the first sentence of Sec. 16, Article VII, are not subject to
confirmation by the Commission on Appointments.
Commission on Appointments; Confirmation of the appointment
of Commissioners of the Bureau of Customs by the Commission on
Appointments not required.—Coming now to the immediate question
before the Court, it is evident that the position of Commissioner of the
Bureau of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on
551
VOL. 156, DECEMBER 17, 1987 551
Sarmiento III vs. Mison
Appointments is required. As a matter of fact, as already pointed
out, while the 1935 Constitution includes "heads of bureaus" among
those officers whose appointments need the consent of the
Commission on Appointments, the 1987 Constitution, on the other
hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission
on Appointments.
Same; Same; Appointment of respondent Savlador Mison as
Commissioner of the Bureau of Customs without submitting his
nomination to the Commission on Appointments is within the
constitutional authority of the President of the Philippines.—
Consequently, we rule that the President of the Philippines acted
within her constitutional authority and power in appointing respondent
Salvador Mison, Commissioner of the Bureau of Customs, without
submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and
functions of the of fice and to receive all the salaries and emoluments
pertaining thereto.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional
boundaries. In this petition for prohibition, the petitioners, who are
taxpayers, lawyers, members of the Integrated Bar of the Philippines
and professors of Constitutional Law, seek to enjoin the respondent
ADMELEC Cases
2
Salvador Mison from performing the functions of the Office of
Commissioner of the Bureau of Customs and the respondent
Guillermo Carague, as Secretary of the Department of Budget, from
effecting disbursements in payment of Mison's salaries and
emoluments, on the ground that Mison's appointment as
Commissioner of the Bureau of Customs is unconstitutional by reason
of its not having been confirmed by the Commission on Appointments.
The respondents, on the other hand, maintain the constitutionality of
respondent Mison's appointment without the conf irmation of the
Commission on Appointments.
Because of the demands of public interest, including the need for
stability in the public service, the Court resolved to give due course to
the petition and decide, setting aside the finer procedural questions of
whether prohibition is the proper
552
552 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
remedy to test respondent Mison's right to the Office of Commissioner
of the Bureau of Customs and of whether the petitioners have a
standing to bring this suit.
By the same token, and for the same purpose, the Court allowed
the Commission on Appointments to intervene and file a petition in
intervention. Comment was required of respondents on said petition.
The comment was filed, followed by intervenor's reply thereto. The
parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it
involves a conflict between two (2) great departments of government,
the Executive and Legislative Departments. It also occurs early in the
life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of
relatively clear provisions in the Constitution. In cases like this, we
follow what the Court, speaking through Mr. Justice (later, Chief
Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs.
Rodriguez,1 that:
'The fundamental principle of constitutional construction is to give
effect to the intent of the framers of the organic law and of the people
adopting it. The intention to which force is to be given is that which is
embodied and expressed in the constitutional provisions themselves."

The Court will thus construe the applicable constitutional provisions,
not in accordance with how the executive or the legislative department
may want them construed, but in accordance with what they say and
provide.
Section 16, Article VII of the 1987 Constitution says:
"The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those
_______________
1 66 Phil. 259, at 264.
553
VOL. 156, DECEMBER 17, 1987 553
Sarmiento III vs. Mison
whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments,
agencies, commissions or boards.
"The President shall have the power to make appointments during
the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress."
It is readily apparent that under the provisions of the 1987 Constitution,
just quoted, there are four (4) groups of officers whom the President
shall appoint. These four (4) groups, to which we will hereafter refer
from time to time, are:
First, the heads of the executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution;2
Second, all other officers of the Government whose appointments
are not otherwise provided for by law;3
ADMELEC Cases
3
Third, those whom the President may be authorized by law to
appoint;
_______________
2 The "other officers" whose appointments are vested in the
President in the 1987 Constitution are:
1. 1.Regular members of the Judicial and Bar Council (ART. VIII,
Sec. 8(2);
2. 2.Chairman and Commissioners of the Civil Service
Commission (ART. IX-B, Sec. 1(2);
3. 3.Chairman and Commissioners of the Commission on
Elections (ART. IX-C, Sec. 1(2);
4. 4.Chairman and Commissioners of the Commission on Audit
(ART. IX-D, Sec. 1(2): and,
5. 5.Members of the regional consultative commission (ART. X,
Sec. 18)
3 When Congress creates inferior offices and omits to provide for
appointments to them, or provides in an unconstitutional way for such
appointment, the officers are within the meaning of the clause "officers
of the Government whose appointments are not otherwise provided
for by law" and the power to appoint such officers devolves on the
President. (USC, Const., Par. II, p. 529, citing Op., Atty. Gen. 213.)
554
554 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
Fourth, officers lower in rank4 whose appointments the Congress may
by law vest in the President alone.
The first group of officers is clearly appointed with the consent of the
Commission on Appointments. Appointments of such officers are
initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present
bone of contention. Should they be appointed by the President with or
without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and

statutory construction that an express enumeration of subjects
excludes others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require
the consent (confirmation) of the Commission on Appointments. But
we need not rely solely on this basic rule of constitutional construction.
We can refer to historical background as well as to the records of the
1986 Constitutional Commission to determine, with more accuracy, if
not precision, the intention of the framers of the 1987 Constitution and
the people adopting it, on whether the appointments by the President,
under the second, third and fourth groups, require the consent
(confirmation) of the Commission on Appointments. Again, in this task,
the following advice of Mr. Chief Justice J. Abad Santos in Gold
Creek is apropos:
"In deciding this point, it should be borne in mind that a constitutional
provision must be presumed to have been framed and adopted in the
light and understanding of prior and existing laws and with reference
to them. "Courts are bound to presume that the people adopting a
constitution are familiar with the previous and existing
_______________
4 The 1935 Constitution says "inferior officers" while the 1987
Constitution states "officers lower in rank."
5 Example: Sen. Raul S. Manglapus was first nominated by the
President for the position of Secretary of the Department of Foreign
Affairs (an executive department). After his nomination was confirmed
by the Commission on Appointments, the President appointed him
Secretary of Foreign Affairs.
555
VOL. 156, DECEMBER 17, 1987 555
Sarmiento III vs. Mison
laws upon the subjects to which its provisions relate, and upon which
they express their judgment and opinion in its adoption." (Barry vs.
Truax, 13 N.D., 131; 99 N.W., 769:65 L. R. A., 762.)6"
It will be recalled that, under Sec. 10, Article VII of the 1935
Constitution, it is provided that—
x x x x x 6
ADMELEC Cases
4
1. "(3)The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the army
from the rank of colonel, of the Navy and Air Forces from the
rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law
to appoint; but the Congress may by law vest the
appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments.
2. "(4)The President shall have the power to make appointments
during the recess of the Congress, but such appointments
shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the
Congress.
x x x x x
1. "(7)x x x, and with the consent of the Commission on
Appointments, shall appoint ambassadors, other public
ministers and consuls x x x."
Upon the other hand, the 1973 Constitution provides that—
"Section 10. The President shall appoint the heads of bureaus and
offices, the officers of the Armed Forces of the Philippines from the
rank of Brigadier General or Commodore, and all other officers of the
government whose appointments are not herein otherwise provided
for, and those whom he may be authorized by law to appoint.
However, the Batasang Pambansa may by law vest in the Prime
Minister, members of the Cabinet, the Executive Committee, Courts,
Heads of Agencies, Commissions, and Boards the power to appoint
inferior officers in their respective offices."
Thus, in the 1935 Constitution, almost all presidential appointments
required the consent (confirmation) of the Commis-
_______________
66 Phil. 259, at 265.
556

556 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
sion on Appointments. It is now a sad part of our political history that
the power of confirmation by the Commission on Appointments, under
the 1935 Constitution, transformed that commission, many times, into
a venue of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the
authoritarian pattern in which it was molded and remolded by
successive amendments, placed the absolute power of appointment
in the President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution
and the other, in the 1973 Constitution, it is not difficult for the Court
to state that the framers of the 1987 Constitution and the people
adopting it, struck a "middle ground" by requiring the consent
(confirmation) of the Commission on Appointments for the first group
of appointments and leaving to the President, without such
confirmation, the appointment of other officers, i.e., those in the
second and third groups as well as those in the fourth group, i.e.,
officers of lower rank.
The proceedings in the 1986 Constitutional Commission support
this conclusion. The original text of Section 16, Article VII, as proposed
by the Committee on the Executive of the 1986 Constitutional
Commission, read as follows:
"Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain and all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. The Congress may by law
vest the appointment of inferior officers in the President alone, in the
courts, or in the heads of departments"7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision
in the 1935 Constitution. When the frames discussed on the floor of
the Commission the proposed text of Section 16,
_______________
7
Pp. 384-385, Vol. II, RECORD OF THE CONSTITUTIONAL
COMMISSION OF 1986.
ADMELEC Cases
5
557
VOL. 156, DECEMBER 17, 1987 557
Sarmiento III vs. Mison
Article VII, a feeling was manifestly expressed to make the power of
the Commission on Appointments over presidential appointments
more limited than that held by the Commission in the 1935
Constitution, Thus—
"Mr. Rama: x x x May I ask that Commissioner Monsod be recogized.
The President: We will call Commissioner Davide later. Mr.
Monsod: With the Chair's indulgence, I just want to take a few minutes
of our time to lay the basis for some of the amendments that I would
like to propose to the Committee this morning.
xxx xxx xxx
On Section 16, / would like to suggest that the power of the
Commission on Appointments be limited to the department heads,
ambassadors, generals and so on but not to the levels of bureau
heads and colonels.
xxx xx x x x"8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two
(2) major changes proposed and approved by the Commission. These
were (1) the exclusion of the appointments of heads of bureaus from
the requirement of confirmation by the Commission on Appointments;
and (2) the exclusion of appointments made under the second
sentence9 of the section from the same requirement. The records of
the deliberations of the Contitutional Commission show the following:
"MR. ROMULO: I ask that Commissioner Foz be recognized.
THE PRESIDENT: Commissioner Foz is recognized.
MR. FOZ: Madam President, my proposed amendment is on page
7, Section 16, line 26 which is to delete the words 'and bureaus,' and
on line 28 of the same page, to change the phrase 'colonel or naval
captain' to MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de Castro is
_______________
8 Pp. 433-435, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL
COMMISSION.
 6

9The second sentence of Sec. 16, ART. VII of the 1987
Constitution refers to what this Decision calls the second and third
groups of officers appointed by the President.
558
558 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
to put a period (.) after the word ADMIRAL, and on line 29 of the same
page, start a new sentence with: HE SHALL ALSO APPOINT, et
cetera.
MR. REGALADO. May we have the amendments one by one. The
first proposed amendment is to delete the words 'and bureaus' on line
26,
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners,
what would be the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in
the executive department, and to require further confirmation of
presidential appointment of heads of bureaus would subject them to
political influence.
MR. REGALADO: The Commissioner's proposed amendment by
deletion also includes regional directors as distinguished from merely
staff directors, because the regional directors have quite a plenitude
of powers within the regions as distinguished from staff directors who
only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervision
of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz?
The Commissioner proposed an amendment to delete 'and bureaus'
on Section 16. Who will then appoint the bureau directors if it is not
the President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer
of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the
Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this
matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
559
VOL. 156, DECEMBER 17, 1987 559
Sarmiento III vs. Mison
MR. REGALADO: We will take the amendments one by one. We will
first vote on the deletion of the phrase 'and bureaus' on line 26, such
that appointments of bureau directors no longer need confirmation by
the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate,
and with the consent of a Commission on Appointments, shall appoint
the heads of the executive departments, ambassadors. . , .'
THE PRESIDENT: Is there any objection to delete the phrase 'and
bureaus' on page 7, line 26? (Silence) The Chair hears none; the
amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized.
MR. FOZ: Madam President, this is the third proposed amendment
on page 7, line 28.1 propose to put a period (.) after 'captain' and on
line 29, delete 'and all' and substitute it with HE SHALL ALSO
APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to
his amendment, so that after 'captain' we insert the following words:
AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED
IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.

ADMELEC Cases

MR. DAVIDE: In other words, there are positions provided for in
the Constitution whose appointments are vested in the President, as
a matter of fact like those of the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section
16 is not an exclusive list of those appointments which constitutionally
require confirmation of the Commission on Appointments.
MR. DAVIDE: That is the reason I seek the incorporation of
560
560 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
the words I proposed.
FR, BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION.
FR. BERNAS: How about: 'AND OTHER OFFICERS WHOSE
APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION'?
MR. DAVIDE: Yes, Madam President, that is modified by the
Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes
those officers which the Constitution does not require confirmation by
the Commission on Appointments, like the members of the judiciary
and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the
modification made by Commissioner Bernas. THE PRESIDENT: So
we have now this proposed amendment of Commissioners Foz and
Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by the
Committee? (Silence) The Chair hears none; the amendment, as
amended, is approved"10 (Emphasis supplied).
ADMELEC Cases
7
It is, therefore, clear that appointments to the second and third groups
of officers can be made by the President without the consent
(confirmation) of the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that
the second sentence of Sec. 16, Article VII reading—
". . . He (the President) shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by
law and those whom he may be authorized by law to appoint . . .
_______________
10
Pp. 514-521, Vol. II, RECORD OF THE 1986
CONSTITUTIONAL COMMISSION.
561
VOL. 156, DECEMBER 17, 1987 561
Sarmiento III vs. Mison
x x x" (Emphasis supplied)
with particular reference to the word "also," implies that the President
shall "in like manner" appoint the officers mentioned in said second
sentence. In other words, the President shall appoint the officers
mentioned in said second sentence in the same manner as he
appoints officers mentioned in the first sentence, that is, by nomination
and with the consent (confirmation) of the Commission on
Appointments.
Amicus curiae's reliance on the word "also" in said second
sentence is not necessarily supportive of the conclusion he arrives at.
For, as the Solicitor General argues, the word "also" could mean "in
addition; as well; besides, too" (Webster's International Dictionary, p.
62, 1981 edition) which meanings could, on the contrary, stress that
the word "also" in said second sentence means that the President, in
addition to nominating and, with the consent of the Commission on
Appointments, appointing the officers enumerated in the first
sentence, can appoint (without such consent (confirmation) the off
icers mentioned in the second sentence.
Rather than limit the area of consideration to the possible
meanings of the word "also" as used in the context of said second
sentence, the Court has chosen to derive significance from the fact
that the first sentence speaks of nomination by the President and

appointment by the President with the consent of the Commission on
Appointments, whereas, the second sentence speaks only of
appointment by the President. And, this use of different language in
two (2) sentences proximate to each other underscores a difference
in message conveyed and perceptions established, in line with Judge
Learned Hand's observation that "words are not pebbles in alien
juxtaposition" but, more so, because the recorded proceedings of the
1986 Constitutional Commission clearly and expressly justify such
differences.
As a result of the innovations introduced in Sec. 16, Article VII of
the 1987 Constitution, there are officers whose appointments require
no confirmation of the Commission on Appointments, even if such
officers may be higher in rank, compared to some officers whose
appointments have to be confirmed by the
562
562 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
Commission on Appointments under the first sentence of the same
Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central
Bank Governor requires no confirmation by the Commission on
Appointments, even if he is higher in rank than a colonel in the Armed
Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore
the purposive intention and deliberate judgment of the framers of the
1987 Constitution that, except as to those officers whose
appointments require the consent of the Commission on
Appointments by express mandate of the first sentence in Sec., 16,
Art. VII, appointments of other officers are left to the President without
need of confirmation by the Commission on Appointments. This
conclusion is inevitable, if we are to presume, as we must, that the
framers of the 1987 Constitution were knowledgeable of what they
were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or
presidential in character. Limitations on or qualifications of such power
should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it
is only in the first sentence of Sec. 16, Art. VII where it is clearly stated
that appointments by the President to the positions therein
enumerated require the consent of the Commission on Appointments.
ADMELEC Cases
8
As to the fourth group of officers whom the President can appoint,
the intervenor Commission on Appointments underscores the third
sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
"The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards." [Emphasis
supplied].
and argues that, since a law is needed to vest the appointment of
lower-ranked officers in the President alone, this implies that, in the
absence of such a law, lower-ranked officers have to be appointed by
the President subject to confirmation by the Commission on
Appointments; and, if this is so, as to lower-
563
VOL. 156, DECEMBER 17, 1987 563
Sarmiento III vs. Mison
ranked officers, it follows that higher-ranked officers should be
appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third sentence
of Sec. 16, Article VII, abovequoted, merely declares that, as to lower-
ranked officers, the Congress may by law vest their appointment in the
President, in the courts, or in the heads of the various departments,
agencies, commissions, or boards in the government. No reason
however is submitted for the use of the word' 'alone'' in said third
sentence.
The Court is not impressed by both arguments. It is of the
considered opinion, after a careful study of the deliberations of the
1986 Constitutional Commission, that the use of the word "alone" after
the word "President" in said third sentence of Sec. 16, Article VII is,
more than anything else, a slip or lapsus in draftmanship. It will be
recalled that, in the 1935 Constitution, the following provision appears
at the end of par. 3, section 10, Article VII thereof—
"x x x ; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of
departments." [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately
after the provision which makes practically all presidential

appointments subject to confirmation by the Commission on
Appointments, thus—
1. "3.The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army
from the rank of colonel, of the Navy and Air Forces from the
rank of captain or commander, and all other officers of the
Government whose appointments are not herein provided
for, and those whom he may be authorized by law to appoint;
x x x"
In other words, since the 1935 Constitution subjects, as a general rule,
presidential appointments to confirmation by the Commission on
Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law
vest the appointment of in-
564
564 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
ferior officers (equivalent to "officers lower in rank" referred to in the
1987 Constitution) in the President alone, in the courts, or in the heads
of departments,
In the 1987 Constitution, however, as already pointed out, the clear
and expressed intent of its framers was to exclude presidential
appointments from confirmation by the Commission on Appointments,
except appointments to offices expressly mentioned in the first
sentence of Sec. 16, Article VII. Consequently, there was no reason
to use in the third sentence of Sec. 16, Article VII the word "alone"
after the word "President" in providing that Congress may by law vest
the appointment of lower-ranked officers in the President alone, or in
the courts, or in the heads of departments, because the power to
appoint officers whom he (the President) may be authorized by law to
appoint is already vested in the President, without need of
confirmation by the Commission on Appointments, in the second
sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have
stated merely that, in the case of lower-ranked officers, the Congress
may by law vest their appointment in the President, in the courts, or in
ADMELEC Cases
9
the heads of various departments of the government. In short, the
word "alone" in the third sentence of Sec. 16, Article VII of the 1987
Constitution, as a literal import from the last part of par. 3, section 10,
Article VII of the 1935 Constitution, appears to be redundant in the
light of the second sentence of Sec. 16, Article VII. And, this
redundancy cannot prevail over the clear and positive intent of the
framers of the 1987 Constitution that presidential appointments,
except those mentioned in the first sentence of Sec. 16, Article VII, are
not subject to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is
evident that the position of Commissioner of the Bureau of Customs
(a bureau head) is not one of those within the first group of
appointments where the consent of the Commission on Appointments
is required. As a matter of fact, as already pointed out, while the 1935
Constitution includes "heads of bureaus" among those officers whose
appointments need the consent of the Commission on Appointments,
the 1987 Con-
565
VOL. 156, DECEMBER 17, 1987 565
Sarmiento III vs, Mison
stitution, on the other hand, deliberately excluded the position of
"heads of bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint
the Commissioner of the Bureau of Customs. The original text of Sec.
601 of Republic Act No. 1937, otherwise known as the Tariff and
Customs Code of the Philippines, which was enacted by the Congress
of the Philippines on 22 June 1957, reads as follows:
"601. Chief Officials of the Bureau.—The Bureau of Customs shall
have one chief and one assistant chief, to be known respectively as
the Commissioner (hereinafter known as the 'Commissioner') and
Assistant Commissioner of Customs, who shall each receive an
annual compensation in accordance with the rates prescribed by
existing laws. The Assistant Commissioner of Customs shall be
appointed by the proper department head.''
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972
by Presidential Decree No. 34, amending the Tariff and Customs Code
of the Philippines. Sec. 601, as thus amended, now reads as follows:

"Sec. 601. Chief Officials of the Bureau of Customs.—The Bureau of
Customs shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as
Commissioner) and Deputy Commissioner of Customs, who shall
each receive an annual compensation in accordance with the rates
prescribed by existing law. The Commissioner and the Deputy
Commissioner of Customs shall be appointed by the President of the
Philippines " (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were
approved during the effectivity of the 1935 Constitution, under which
the President may nominate and, with the consent of the Commission
on Appointments, appoint the heads of bureaus, like the
Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No.
1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII,
with the result that, while the appointment of the Commissioner of the
Bureau of Customs is one that devolves on the President, as an
appointment he is authorized
566
566 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
by law to make, such appointment, however, no longer needs the
confirmation of the Commission on Appointments. Consequently, we
rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison,
Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. He
is thus entitled to exercise the full authority and functions of the office
and to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be,
as they are, hereby DISMISSED. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin an
d Cortés, JJ., concur.
Teehankee (C.J.), see brief statement.
Melencio-Herrera, J., concurring in a separate opinion.
Gutierrez, Jr., J., please see separate opinion.
Cruz, J., see dissent.
Sarmiento, J., concurring in a separate opinion.
ADMELEC Cases
10
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with
its constitutional duty, to adjudicate promptly the issue at bar and to
rule that the direct appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of submitting
a prior nomination to the Commission on Appointments and securing
its confirmation) is valid and in accordance with the President's
constitutional authority to so appoint officers of the Government as
defined in Article VII, section 16 of the 1987 Constitution. The
paramount public interest and the exigencies of the public service
demand that any doubts over the validity of such appointments be
resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention
nor deal with the Manifestation of December 1, 1987
567
VOL. 156, DECEMBER 17, 1987 567
Sarmiento III vs. Mison
filed by the intervenor that Senate Bill No. 137 entitled "An Act
Providing For the Confirmation By the Commission on Appointments
of All Nominations and Appointments Made by the President of the
Philippines" was passed on 23 October 1987 and was "set for perusal
by the House of Representatives." This omission has been deliberate.
The Court has resolved the case at bar on the basis of the issues
joined by the parties. The contingency of approval of the bill mentioned
by intervenor clearly has no bearing on and cannot affect retroactively
the validity of the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G. Almario
vs. Hon. Miriam Defensor-Santiago." The Court does not deal with
constitutional questions in the abstract and without the same being
properly raised before it in a justiciable case and after thorough
discussion of the various points of view that would enable it.to render
judgment after mature deliberation. As stressed at the hearing of
December 8, 1987, any discussion of the reported bill and its validity
or invalidity is premature and irrelevant and outside the scope of the
issues resolved in the case at bar,
MELENCIO-HERRERA, J., concurring:.

I concur with the majority opinion and with the concurring opinion of
Justice Sarmiento, and simply wish to add my own reading of the
Constitutional provision involved,
Section 16, Article VII, of the 1987 Constitution provides:
'The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution.
He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
the departments, agencies, commissions or boards.
568
568 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
"The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress" (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence
it is clear that the President "nominates,' and with the consent of the
Commission on Appointments "appoints" the officials enumerated.
The second sentence, however, significantly uses only the
term "appoint" all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. Deliberately eliminated was
any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the
appointees mentioned in the second sentence from confirmation by
the Commission on Appointments is, to my mind, quite clear. So also
is the fact that the term "appoint" used in said sentence was not meant
to include the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were the intent,
ADMELEC Cases
11
the same terminologies in the first sentence could have been easily
employed.
There should be no question either that the participation of the
Commission on Appointments in the appointment process has been
deliberately decreased in the 1987 Constitution compared to that in
the 1935 Constitution, which required that all presidential
appointments be with the consent of the Commission on
Appointments.
The interpretation given by the majority may, indeed, lead to some
incongruous situations as stressed in the dissenting opinion of Justice
Cruz. The remedy therefor addresses itself to the future. The task of
constitutional construction is to ascertain the intent of the framers of
the Constitution and thereafter to assure its realization (J.M. Tuason
& Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February
18, 1970, 31 SCRA 413). And the primary source from which to
ascertain constitutional intent is the language of the Constitution itself,
569
VOL. 156, DECEMBER 17, 1987 569
Sarmiento III vs. Mison
SARMIENTO, J., Concurring:
I concur. It is clear from the Constitution itself that not all Presidential
appointments are subject to prior Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
The President shall have the power to make appointments during
recess of the Congress, whether voluntary or compulsory, but such
appointment shall be effective only until disapproval by the

Commission on Appointments or until the next adjournment of the
Congress.1
By its plain language, the Constitution has intended that only those
grouped under the first sentence are required to undergo a consenting
process. This is a significant departure from the procedure set forth in
the 1935 Charter:
1. (3)The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army
from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law
to appoint; but the Congress may by law vest the
appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments.2
under which, as noted by the majority, "almost all presidential
_______________
1 6 Supra, art. IX (B), sec. 1 (2).
CONST., art. VII, sec. 16.
2 7 Supra, art. IX (C), sec. 1 (2).
CONST. (1935), art. VII, sec. 10(3).
570
570 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
appointments required the consent (confirmation) of the Commission
on Appointments."3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers
intended otherwise, that is to say, to require all Presidential
appointments clearance from the Commission on Appointments, they
could have simply reenacted the Constitution's 1935 counterpart.4
I agree that the present Constitution classifies four types of
appointments that the President may make: (1) appointments of heads
of executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain, and those of other officers whose appointments are
vested in him under the Constitution, including the regular members
ADMELEC Cases
12
of the Judicial and Bar Council,5 the Chairman and Commissioners of
the Civil Service Commission,6 the Chairman and Commissioners of
the Commission on Elections,7 and the Chairman and Commissioners
of the Commission on Audit;8 (2) those officers whose appointments
are not otherwise provided for by law; (3) those whom he may be
authorized by law to appoint; and (4) officers lower in rank whose
appointments the Congress may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of
the fundamental law have written a "rather confused
Constitution"9 with respect, to a large extent, to its other parts, and
with respect, to a certain extent, to the appointing clause itself, in the
sense that it leaves us for instance, with the incongruous situation
where a consul's appointment needs confirmation whereas that of
Undersecretary of Foreign
_______________
3 Sarmiento v. Mison, G.R. No. 79974, 6.
4 As Justice Padilla further notes, Section 16, of Article VII, was
originally a verbatim copy of the 1935 provisions. Upon further
deliberations of the Constitutional Commission, however, the
consensus was reached to amend the same to its present form.
5 CONST., art. VIII, sec. 8(2).
8 Supra, art. IX (D), sec. 1 (2).
9 Sarmiento v. Mison, supra, Cruz., J., Dissenting, 5.
571
VOL. 156, DECEMBER 17, 1987 571
Sarmiento III vs. Mison
Affairs, his superior, does not. But the idiosyncracies, as it were, of the
Charter is not for us to judge, That is a question addressed to the
electorate, and who, despite those "eccentricities," have stamped their
approval on that Charter. "The Court," avers the majority, "will thus
construe the applicable constitutional provisions, not in accordance
with how the executive or the legislative department may want them
construed, but in accordance with what they say and provide.'' 10
It must be noted that the appointment of public officials is
essentially an exercise of executive power.11 The fact that the
Constitution has provided for a Commission on Appointments does

not minimize the extent of such a power, much less, make it a shared
executive-legislative prerogative. In Concepcion v. Paredes, we
stated in no uncertain terms that "[a]ppointment to office is intrinsically
an executive act involving the exercise of discretion." 12 Springer v.
Philippine Islands13 on the other hand, underscored the fact that while
the legislature may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it may
prescribe the qualifications therefor, it cannot circumscribe such
qualifications, which would unduly narrow the President's choice. In
that event, it is as if it is the legislature itself conferring the
appointment.
Thus, notwithstanding the existence of a Commission on
_______________
10 Supra, 3.
11 Concepcion v. Paredes, 42 Phil. 599 (1921); Government v.
Springer, 50 Phil. 259 (1927); Springer v. P.I., 277 U.S. 189 (1929).
The Supreme Court has been vested with the power to "[a]ppoint all
officials of the Judiciary in accordance with the Civil Service Law"
[CONST., art. VIII, sec. 5(6)] but that is by fiat of the Constitution itself.
(See also supra, art. VII, sec. 16.). In Government v.
Springer, supra, we recognized the authority of the legislature to
appoint its officers but only as "an incident to the discharge of its
functions." (At 278). When the Constitution authorizes Congress to
vest in the President the appointment of other officers, it is not
Congress being empowered to make the appointments; the President
retains his appointing power, through, however, a procedure
established by Congress.
12 Supra, at 603.
13 Supra.
572
572 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
Appointments, the Chief Executive retains his supremacy as the
appointing authority. In case of doubt, the same should be resolved in
f avor of the appointing power,
It is the essence of a republican form of government, like ours, that
"[e]ach department of the government has exclusive cognizance of
matters within its jurisdiction."14 But like all genuine republican
ADMELEC Cases
13
systems, no power is absolutely separate from the other. For
republicanism operates on a process of checks and balances as well,
not only to guard against excesses by one branch, but more
importantly, "to secure coordination in the workings of the various
departments of the government."15 Viewed in that light, the
Commission on Appointments acts as a restraint against abuse of the
appointing authority, but not as a means with which to hold the Chief
Executive hostage by a possibly hostile Congress, an unhappy lesson
as the majority notes, in our history under the regime of the 1935
Constitution.
The system of checks and balances is not peculiar to the provision
on appointments. The prohibition, for instance, against the enactment
of a bill of attainder operates as a bar against legislative encroachment
upon both judicial and executive domains, since the determination of
guilt and punishment of the guilty address judicial and executive
functions, respectively,16
And then, the cycle of checks and balances pervading the
Constitution is a sword that cuts both ways. In a very real sense, the
power of appointment constitutes a check against legislative authority.
In Springer v. Philippine Islands,17 we are told that "Congress may not
control the law enforcement process by retaining a power to appoint
the individual who will execute the laws."18 This is so, according to one
authority, because "the appointments clause, rather than 'merely
dealing with etiquette or protocol,' seeks to preserve an executive
check upon legislative authority in the interest of avoiding an
_______________
14 Angara v. Electoral Commission, 63 Phil. 139,156 (1936).
15 Angara v. Electoral Commission, supra.
16 TRIBE, AMERICAN CONSTITUTIONAL LAW, 184-185 (1978),
citing Buckley v. Valeo. 424 US 1 (1976)
17 Supra.
18 TRIBE, id, 184.
573
VOL. 156, DECEMBER 17, 1987 573
Sarmiento III vs. Mison
undue concentration of power in Congress. "19
The President has sworn to "execute [the] laws. 20 For that matter,
no other department of the Government may discharge that function,

least of all, Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and
whose members have been determined therein, has been held to be
repugnant to the Charter."21 Execution of the laws, it was held, is the
concern of the President, and in going about this business, he acts by
himself or through his men and women, and no other.
The President, on the other hand, cannot remove his own
appointees "except for cause provided by law." 22 Parenthetically, this
represents a deviation from the rule prevailing in American jurisdiction
that "the power of removal. . . [is] incident to the power of
appointment,"23 although this has since been tempered in a
subsequent case,24 where it was held that the President may remove
only "purely executive officers,"25 that is, officers holding office at his
pleasure. In Ingles v. Mutuc,26 this Court held that the President may
remove incumbents of offices confidential in nature, but we likewise
made clear that in such a case, the incumbent is not "removed" within
the meaning of civil service laws, but that his term merely expires.
It is to be observed, indeed, that the Commission on
Appointments, as constituted under the 1987 Constitution, is itself
subject to some check. Under the Charter, "[t]he Commission shall act
on all appointments submitted to it within thirty session days of the
Congress from their submission."27 Accordingly, the failure of the
Commission to either consent or
_______________
19 Id., 184-185, citing Buckley v. Valeo, supra,
20 CONST., art. VII, sec. 5.
21 Buckley v. Valeo, supra,
22 CONST., art. IX (B), sec. 2 (3).
23 Myers v. United States, 272 US 52 (1926).
24 TRIBE, id., at 188, citing Humphrey's Executor v. United
States, 295 US 602 (1935).
25 Id.
26 No. L-20390, November 29,1968, 26 SCRA 171 (1968).
27 CONST., art. VI, sec. 18.
574
574 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
ADMELEC Cases
14
not consent to the appointments preferred before it within the
prescribed period results in a de facto confirmation thereof.
Certainly, our founding fathers have fashioned a Constitution
where the boundaries of power are blurred by the predominance of
checks and counterchecks, yet amid such a rubble of competing
powers emerges a structure whose parts are at times jealous of each
other, but which are ultimately necessary in assuring a dynamic, but
stable, society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of them are
found to terminate in a penumbra shading gradually from one extreme
to the other. x x x When we come to the fundamental distinctions it is
still more obvious that they must be received with a certain latitude or
our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were
it ever so desirable to do so, which I am far from believing that it is, or
that the Constitution requires.28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
x x x [I]t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have recognized as
suggestive of the mechanism of the heavens," [W. Wilson,
Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of life." (Id.
at 192: "The Constitution cannot be regarded as a mere legal
document, to be read as a will or a contract would be. It must, of the
necessity of the case, be a vehicle of life.") The great difficulty of any
theory less rich, Woodrow Wilson once warned, "is that government is
not a
_______________
28 Holmes, J., Dissenting, Springer v. Philippine
Islands, supra, 210-212.

575
VOL. 156, DECEMBER 17, 1987 575
Sarmiento III vs. Mison
machine, but a living thing. It falls, not under the theory of the universe,
but under the theory of organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer pressure of life.
No living thing can have its organs offset against each other as
checks, and live." (Id. at 56.) Yet because no complex society can
have its centers of power not "offset against each other as checks,"
and resist tyranny, the Model of Separated and Divided Powers offers
continuing testimony to the undying dilemmas of progress and
justice.29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973
Constitution deliberately denied the legislature (the National Assembly
under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing
power.30 As a delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding officer of
most of its plenary session, I am aware that the Convention did not
provide for a commission on appointments on the theory that' the
Prime Minister, the head of the Government and the sole appointing
power, was himself a member of parliament. For this reason, there
was no necessity for a separate body to scrutinize his appointees. But
should such appointees forfeit the confidence of the assembly, they
are, by tradition, required to resign, unless they should otherwise have
been removed by the Prime Minister.31 In effect, it is parliament itself
that "approves" such appointments. Unfortunately, supervening
events forestalled our parliamentary experiment, and beginning with
the 1976 amendments and some 140 or so amendments thereafter,
we had reverted to the presidential form,32 without provisions for a
commission on appointments.
In fine, while Presidential appointments, under the first sentence
of Section 16, of Article VII of the present Constitution, must pass prior
Congressional scrutiny, it is a test
_______________
29 TRIBE, id., 18-19; emphasis in original.
30 Sarmiento v. Mison, supra, 6.
ADMELEC Cases
15
31CONST. (1973), art. IX, sec. 4; art. XII (B), sec. 3.
32See Free Telephone Workers Union v. Minister of Labor and
Employment, No. L-58184, October 30, 1981, 108 SCRA 757 (1981).
576
576 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
that operates as a mere safeguard against abuse with respect to those
appointments. It does not accord Congress any more than the power
to check, but not to deny, the Chief Executive's appointing power or to
supplant his appointees with its own. It is but an exception to the rule.
In limiting the Commission's scope of authority, compared to that
under the 1935 Constitution, I believe that the 1987 Constitution has
simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting opinion
I join Justice Isagani A. Cruz in his dissent. I agree that the
Constitution, as the supreme law of the land, should never have any
of its provisions interpreted in a manner that results in absurd or
irrational consequences.
The Commission on Appointments is an important constitutional
body which helps give fuller expression to the principles inherent in
our presidential system of government. Its functions cannot be made
innocuous or unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the President shares
in the enactment of laws which govern the nation, the legislature,
through its Commission on Appointments, gives assurance that only
those who can pass the scrutiny of both the President and Congress
will help run the country as officers holding high appointive positions.
The third sentence of the first paragraph—"x x x The Congress may,
by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards."—specifies only "officers lower in
rank" as those who may, by law, be appointed by the
President alone, If as expounded in the majority opinion, only the
limited number of officers in the first sentence of Section 16 require
confirmation, the clear intent of the third sentence is lost. In fact both
the second and third sentences become meaningless or superfluous.

Superfluity is not to be read into such an important part of the
Constitution.
I agree with the intervenor that all provisions of the Constitution on
appointments must be read together. In providing
577
VOL. 156, DECEMBER 17, 1987 577
Sarmiento III vs. Mison
for the appointment of members of the Supreme Court and judges of
lower courts (Section 9, Article VIII), the Ombudsman and his deputies
(Section 9, Article XI), the Vice President as a member of cabinet
(Section 3, Article VII) and, of course, those who by law the President
alone may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other appointments need
confirmation. Where there is no need for confirmation or where there
is an alternative process to confirmation, the Constitution expressly so
declares. Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a
Commission on Appointments because the government it set up was
supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our
presidential system, the interpretation which Justice Cruz and myself
espouse, is more democratic and more in keeping with the system of
government organized under the Constitution.
I, theref ore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is
briefly as follows: Confirmation is required only for the officers
mentioned in the first sentence of Section 16, to wit: (1) the heads of
the executive departments; (2) ambassadors, other public ministers
and consuls; (3) officers of the armed forces from the rank of colonel
or naval captain; and (4) other officers whose appointments are vested
in the President in the Constitution. No confirmation is required under
the second sentence for (1) all other officers whose appointments are
not otherwise provided for by law, and (2) those whom the President
may be authorized by law to appoint. Neither is confirmation required
by the third sentence for those other officers lower in rank whose
appointment is vested by law in the President alone.
ADMELEC Cases
16
Following this interpretation, the Undersecretary of Foreign Affairs,
who is not the head of his department, does not
578
578 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
have to be confirmed by the Commission on Appointments, but the
ordinary consul, who is under his jurisdiction, must be confirmed. The
colonel is by any standard lower in rank than the Chairman of the
Commission on Human Rights, which was created by the Constitution;
yet the former is subject to confirmation but the latter is not because
he does not come under the first sentence. The Special Prosecutor,
whose appointment is not vested by the Constitution in the President,
is not subject to confirmation under the first sentence, and neither are
the Governor of the Central Bank and the members of the Monetary
Board because they fall under the second sentence as interpreted by
the majority opinion. Yet in the case of the multi-sectoral members of
the regional consultative commission, whose appointment is vested
by the Constitution in the President under Article X, Section 18, their
confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as
they.would lead to the absurd consequences we should avoid in
interpreting the Constitution.
There is no question that bureau directors are not required to be
confirmed under the first sentence of Section 16, but that is not the
provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us.
Significantly, although there was a long discussion of the first
sentence in the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment or in the
majority opinion. We can therefore only speculate on the correct
interpretation of this provision in the light of the first and third
sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the
exception to the first sentence and holds that the two sets of officers
specified therein may be appointed by the President wihout the
concurrence of the Commission on Appointments. This interpretation
is pregnant with mischievous if not also ridiculous results that
presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second
sentence at all, considering the majority opinion that the

579
VOL. 156, DECEMBER .17, 1987 579
Sarmiento III vs. Mison
enumeration in the first sentence of the officers subject to confirmation
is exclusive on the basis of expressio unius est exclusio alterius. If that
be so, the first sentence would have been sufficient by itself to convey
the idea that all other appointees of the President would not need
confirmation.
One may also ask why, if the officers mentioned in the second
sentence do not need confirmation, it was still felt necessary to provide
in the third sentence that the appointment of the other officers lower in
rank will also not need confirmation as long as their appointment is
vested by law in the President esident alone. The third sentence would
appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to
vest in the President alone the appointment of those other officers
lower in rank mentioned in the third sentence? Conformably to the
language thereof, these lower officers will need the confirmation of the
Commission on Appointments while, by contrast, the higher officers
mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor
arbiters, as officers lower in rank than the bureau director, will have to
be confirmed if the Congress does not vest their appointment in the
President alone under the third sentence. On the other hand, their
superior, the bureau director himself, will not need to be confirmed
because, according to the majority opinion, he falls not under the first
sentence but the second. This is carefulness in reverse, like checking
the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the
Constitutional Commission was to restrict the powers of the
Presidency and so prevent the recurrence of another dictatorship.
Among the many measures taken was the restoration of the
Commission on Appointments to check the appointing power which
had been much abused by President Marcos. We are now told that
even as this body was revived to limit appointments, the scope of its
original authority has itself been limited in the new Constitution. I have
to disagree.
My own reading is that the second sentence is but
a continuation of the idea expressed in the first sentence and simply
580
ADMELEC Cases
17
580 SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
mentions the other officers appointed by the President who are also
subject to confirmation. The second sentence is the later expression
of the will of the framers and so must be interpreted as complementing
the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I
repeat that there were no debates on this matter as far as I know,
which simply means that my humble conjecture on the meaning of
Section 16 is as arguable, at least, as the suppositions of the majority.
We read and rely on the same records. At any rate, this view is more
consistent with the general purpose of Article VII, which, to repeat,
was to reduce the powers of the Presidency,
The respondent cites the following exchange reported in page 520,
Volume II, of the Record of the Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on
page 7, line 28, I propose to put a period (.) after 'captain' and on line
29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT
ANY.
Mr. Regalado: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
However, the records do not show what particular part of Section 16
the committee chairman was referring to, and a reading in its entirety
of this particular debate will suggest that the body was considering
the first sentence of the said section, which I reiterate is not the
controversial provision. In any case, although the excerpt shows that
the proposed amendment of Commissioner Foz was accepted by the
committee, it is not reflected, curiously enough, in the final version of
Section 16 as a perusal thereof will readily reveal Whether it was
deleted later in the session or reworded by the style committee or
otherwise replaced for whatever reason will need another surmise on
this rather confused Constitution.
I need only add that the records of the Constitutional Commission
are merely extrinsic aids and are at best persuasive only and not
necessarily conclusive. Interestingly, some quarters have observed
that the Congress is not prevented from adding
581

VOL. 156, DECEMBER 17, 1987 581
Sarmiento III vs. Mison
to the list of officers subject to confirmation by the Commission on
Appointments and cite the debates on this matter in support of this
supposition. It is true enough that there was such a consensus, but it
is equally true that this thinking is not at all expressed, or even only
implied, in the language of Section 16 of Article VII. Which should
prevail then—the provision as worded or the debates?
It is not disputed that the power of appointment is executive in
nature, but there is no question either that it is not absolute or
unlimited. The rule re-established by the new Constitution is that the
power requires confirmation by the Commission on Appointments as
a restraint on presidential excesses, in line with the system of checks
and balances. I submit it is the exception to this rule, and not the rule,
that should be strictly construed.
In my view, the only officers appointed by the President who are
not subject to confirmation by the Commission on Appointments are
(1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the
Vice-President when he is appointed to the Cabinet; and (3) "other
officers lower in rank," but only when their appointment is vested by
law in the President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while not
covered by the first sentence of Section 16, comes under the second
sentence thereof as I would interpret it and so is also subject to
confirmation.
I vote to grant the petition.
Petition dismissed.
No. L-69137. August 5, 1986.*
FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE
COMMISSION and FELICULA TUOZO, respondents-appellees.
ADMELEC Cases
18
Administrative Law; Civil Service; Appointments; A permanent
appointment is protected by the Constitution.—While the principle is
correct, and we have applied it many times, it is not correctly applied
in this case. The argument begs the question. The appointment of the
petitioner was not temporary but permanent and was therefore
protected by Constitution. The appointing authority indicated that it
was permanent, as he had the right to do so, and it was not for the
respondent Civil Service Commission to reverse him and call it
temporary.
Same; Same; Same; Words stamped '”Approved as Temporary”
by the Civil Service Commission in the appointment for Administrative
Officer II, Administrative Division, Cebu City, do not change the
character of the appointment as permanent.—The stamping of the
words “APPROVED as TEMPORARY” did not change the character
of the appointment, which was clearly described as “Permanent” in the
space provided for in Civil Service Form No. 33, dated February 18,
1983. What was temporary was the approval of the appointment, not
the appointment itself. And what made the approval temporary was
the fact that it was made to depend on the condition specified therein
and on the verification of the qualifications of the appointee to the
position.
Same; Same; Same; Civil Service Commission, not empowered
to determine the kind or nature of the appointment.—The Civil Service
Commission is not empowered to determine the kind or nature of the
appointment extended by the appointing officer, its authority being
limited to approving or reviewing the appointment in the light of the
_________________
*EN BANC.
328
328 SUPREME COURT REPORTS
ANNOTATED
Luego vs. Civil Service Commission
requirements of the Civil Service Law. When the appointee is
qualified and all the other legal requirements are satisfied, the
Commission has no choice but to attest to the appointment in
accordance with the Civil Service Laws.

Same; Same; Same; Same; Attestation; Approval of
appointment by the Civil Service Commission called an “attestation;”
Requirement of attestation, nature of.—Indeed, the approval is more
appropriately called an attestation, that is, of the fact that the
appointee is qualified for the position to which he has been named. As
we have repeatedly held, such attestation is required of the
Commissioner of Civil Service merely as a check to assure
compliance with Civil Service laws.
Same; Same; Same; Same; Appointment, nature of the power
of issuance of.—Appointment is an essentially discretionary power
and must be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing
authority can decide.
Same; Same; Same; Same; Power of the Commission to
“approve” or “disapprove” appointments, limited only to determining
whether or not the appointee possesses the appropriate civil service
eligibility or the required qualifications.—However, a full reading of the
provision, especially of the underscored parts, will make it clear that
all the Commission is actually allowed to do is check whether or not
the appointee possesses the appropriate civil service eligibility or the
required qualifications. If he does, his appointment is approved; if not,
it is disapproved. No other criterion is permitted by law to be employed
by the Commission when it acts on—or as the Decree says,
“approves” or “disapproves”—an appointment made by the proper
authorities.
Same; Same; Same; Same; Civil Service Commission, without
authority to revoke an appointment because of its belief that another
person was better qualified, which is an encroachment on the
discretion vested solely in the city mayor.—Significantly, the
Commission on Civil Service acknowledged that both the petitioner
and the private respondent was qualified for the position in
controversy. That recognition alone rendered it functus officio in the
case and
329
VOL. 143, AUGUST 5, 1986 329
Luego vs. Civil Service Commission
ADMELEC Cases
19
prevented it from acting further thereon except to affirm the
validity of the petitioner’s appointment. To be sure, it had no authority
to revoke the said appointment simply because it believed that the
private respondent was better qualified for that would have constituted
an encroachment on the discretion vested solely in the city mayor.
Same; Same; Same; Next-in-rank rule; Application of the next-
in-rank rule, not absolute.—In preferring the private respondent to the
petitioner, the Commission was probably applying its own Rule V,
Section 9, of Civil Service Rules on Personnel Actions and Policies,
which provides that “whenever there are two or more employees who
are next-in-rank, preference shall be given to the employee who is
most competent and qualified and who has the appropriate civil
service eligibility.” This rule is inapplicable, however, because neither
of the claimants is next in rank. Moreover, the next-in-rank rule is not
absolute as the Civil Service Decree allows vacancies to be filled by
transfer of present employees, reinstatement, reemployment, or
appointment of outsiders who have the appropriate eligibility.
PETITION to review the resolution of the Commission on Elections.
The facts are stated in the opinion of the Court.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.
CRUZ, J .:
Stripped of irrelevant details and impertinent incidents that have
cluttered the voluminous record, the facts of this case may be briefly
narrated as follows:
The petitioner was appointed Administrative Officer II, Office of the
City Mayor, Cebu City, by Mayor Florentino Solon on February 18,
1983.1 The appointment was described as “permanent” but the Civil
Service Commission approved it as “temporary,” subject to the final
action taken in the protest filed by the private respondent and another
employee, and provided “there (was) no pending administrative case
against the
_____________
1 Rollo, p. 52.

330
330 SUPREME COURT REPORTS ANNOTATED
Luego vs. Civil Service Commission
appointee, no pending protest against the appointment nor any
decision by competent authority that will adversely affect the approval
of the appointment.”2 On March 22, 1984, after protracted hearings
the legality of which does not have to be decided here, the Civil
Service Commission found the private respondent better qualified
than the petitioner for the contested position and, accordingly, directed
“that Felicula Tuozo be appointed to the position of Administrative
Officer II in the Administrative Division, Cebu City, in place of Felimon
Luego whose appointment as Administrative Officer II is hereby
revoked.”3 The private respondent was so appointed on June 28,
1984, by the new mayor, Mayor Ronald Duterte.4 The petitioner,
invoking his earlier permanent appointment, is now before us to
question that order and the private respondent’s title.
The issue is starkly simple: Is the Civil Service Commission
authorized to disapprove a permanent appointment on the ground that
another person is better qualified than the appointee and, on the basis
of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says
the petitioner could be validly replaced in the instant case because his
appointment was temporary and therefore could be withdrawn at will,
with or without cause. Having accepted such an appointment, it is
argued, the petitioner waived his security of tenure and consequently
ran the risk of an abrupt separation from his office without violation of
the Constitution.5
While the principle is correct, and we have applied it many
times,6 it is not correctly applied in this case. The argument
_________________
2 Rollo, p. 52.
3 Ibid., p. 31.
4 Ibid., pp. 17, 178, 245, 336.
5 Rollo, pp. 350-351.
6 Montero vs. Castellanes, 108 Phil. 744; University of the
Philippines, et al. vs. CIR, 107 Phil 848; Azuelo vs. Arnaldo, 108 Phil.
293; Atay, et al. vs. Ty Deling, 107 Phil. 1146; Serrano vs. NSDB, 10
ADMELEC Cases
20
SCRA 626; Hojilla vs. Mariño, 13 SCRA 293; Aguila vs. Castro, 15
SCRA 656.
331
VOL. 143, AUGUST 5, 1986 331
Luego vs. Civil Service Commission
begs the question. The appointment of the petitioner was not
temporary but permanent and was therefore protected by Constitution.
The appointing authority indicated that it was permanent, as he had
the right to do so, and it was not for the respondent Civil Service
Commission to reverse him and call it temporary.
The stamping of the words “APPROVED as TEMPORARY” did not
change the character of the appointment, which was clearly described
as “Permanent” in the space provided for in Civil Service Form No. 33,
dated February 18, 1983.7 What was temporary was the approval of
the appointment, not the appointment itself. And what made the
approval temporary was the fact that it was made to depend on the
condition specified therein and on the verification of the qualifications
of the appointee to the position.
The Civil Service Commission is not empowered to determine the
kind or nature of the appointment extended by the appointing officer,
its authority being limited to approving or reviewing the appointment in
the light of the requirements of the Civil Service Law. When the
appointee is qualified and all the other legal requirements are
satisfied, the Commission has no choice but to attest to the
appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
“It is well settled that the determination of the kind of appointment to
be extended lies in the official vested by law with the appointing power
and not the Civil Service Commission. The Commissioner of Civil
Service is not empowered to determine the kind or nature of the
appointment extended by the appointing officer. When the appointee
is qualified, as in this case, the Commissioner of Civil Service has no
choice but to attest to the appointment. Under the Civil Service Law,
Presidential Decree No. 807, the Commissioner is not authorized to
curtail the discretion of the appointing official on the nature or kind of
the appointment to be extended.”8
Indeed, the approval is more appropriately called an attesta-
__________________

7Rollo, p. 1.
8In Re: Elvira C. Arcega, 89 SCRA 318, 322.
332
332 SUPREME COURT REPORTS ANNOTATED
Luego vs. Civil Service Commission
tion, that is, of the fact that the appointee is qualified for the position
to which he has been named. As we have repeatedly held, such
attestation is required of the Commissioner of Civil Service merely as
a check to assure compliance with Civil Service Laws.9
Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his best
lights, the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot
be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can
decide.
It is different where the Constitution or the law subjects the
appointment to the approval of another officer or body, like the
Commission on Appointments under 1935
Constitution.10 Appointments made by the President of the Philippines
had to be confirmed by that body and could not be issued or were
invalidated without such confirmation. In fact, confirmation by the
Commission on Appointments was then considered part of the
appointing process, which was held complete only after such
confirmation.11
Moreover, the Commission on Appointments could review the
wisdom of the appointment and had the power to refuse to concur with
it even if the President’s choice possessed all the qualifications
prescribed by law. No similar arrangement is provided for in the Civil
Service Decree. On the contrary, the Civil Service Commission is
limited only to the non-discretionary authority of determining whether
or not the person appointed meets all the required conditions laid
down by the law.
It is understandable if one is likely to be misled by the language of
Section 9(h) of Article V of the Civil Service Decree
________________
ADMELEC Cases
21
9 Ibid.; Villanueva vs. Bellalo, 9 SCRA 407-411; Said Benzar Ali
vs. Teehankee, 46 SCRA 728, 730-731; Santos vs. Chico, 25 SCRA
343; City of Manila vs. Subido, 17 SCRA 231.
10 Article VII, Section 10(3) and (7), 1935 Constitution.
11 Lacson vs. Romero, 84 SCRA 740, 745.
333
VOL. 143, AUGUST 5, 1986 333
Luego vs. Civil Service Commission
because it says the Commission has the power to “approve” and
“disapprove” appointments. Thus, it is provided therein that the
Commission shall have inter alia the power to:
“9(h) Approve all appointments, whether original or promotionaly to
positions in the civil service, except those presidential appointees,
members of the Armed Forces of the Philippines, police forces,
firemen, and jailguards, and disapprove those where the appointees
do not possess appropriate eligibility or required qualifications.” (italics
supplied)
However, a full reading of the provision, especially of the underscored
parts, will make it clear that all the Commission is actually allowed to
do is check whether or not the appointee possesses the appropriate
civil service eligibility or the required qualifications. If he does, his
appointment is approved; if not, it is disapproved. No other criterion is
permitted by law to be employed by the Commission when it acts on—
or as the Decree says, “approves” or “disapproves”—an appointment
made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that
both the petitioner and the private respondent were qualified for the
position in controversy.12 That recognition alone rendered it functus
officio in the case and prevented it from acting further thereon except
to affirm the validity of the petitioner’s appointment. To be sure, it had
no authority to revoke the said appointment simply because it believed
that the private respondent was better qualified for that would have
constituted an encroachment on the discretion vested solely in the city
mayor.
In preferring the private respondent to the petitioner, the
Commission was probably applying its own Rule V, Section 9, of Civil
Service Rules on Personnel Actions and Policies, which provides that
“whenever there are two or more employees who are next-in-rank,
preference shall be given to the employee who is most competent and
qualified and who has the appropriate civil service eligibility.” This rule

is inapplicable, however, because neither of the claimants is next in
rank. Moreover, the
_________________
12Rollo, pp. 30-31.
334
334 SUPREME COURT REPORTS ANNOTATED
Luego vs. Civil Service Commission
next-in-rank rule is not absolute as the Civil Service Decree allows
vacancies to be filled by transfer of present employees, reinstatement,
reemployment, or appointment of outsiders who have the appropriate
eligibility.13
There are apparently no political overtones in this case, which
looks to be an honest contention between two public functionaries who
each sincerely claims to be entitled to th e position in dispute. This is
gratifying for politics should never be permitted to interfere in the
apolitical organization of the Civil Service, which is supposed to serve
all the people regardless of partisan considerations. This political
detachment will be impaired if the security of tenure clause in the
Constitution is emasculated and appointments in the Civil Service are
revoked and changed at will to suit the motivations and even the
fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on
Civil Service dated March 22, 1984, is set aside, and the petitioner is
hereby declared to be entitled to the office in dispute by virtue of his
permanent appointment thereto dated February 18, 1983. No costs.
SO ORDERED.
[No. L-3081. October 14, 1949]
ANTONIO LACSON, petitioner, vs. HONORIO ROMESRO ET AL.,
respondents.
1. 1.PUBLIC OFFICERS; PROVINCIAL
FISCAL; APPOINTMENT OF; INVOLVES SEVERAL
STEPS.—The appointment of provincial fiscal to be
complete involves several steps. First, comes the
ADMELEC Cases
22
nomination by the President. Then to make that nomination
valid and permanent, the Commission on Appointments of
the Legislature has to confirm said nomination. The last step
is the acceptance thereof by the appointee by his
assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts
of the Executive and Legislative departments of the
Government. But the last necfessary step to make the
appointment complete and effective, rests solely with the
appointee himself. He may or he. niay not accept the
appointment or nomination as there is no power in this
country which can compel a man to accept an offlce.
1. 2.ID. ; ID. ; APPOINTMENT AND TRANSFER TO ANOTHER
PROVINCE IS EQUlVALENT TO REMOVAL OR
SEPARATION; ILLEGALITY.—The appointment and
transfer of a provincial fiscal from one province to another
would mean his removal or separation from the first ptovince.
The reason is that a fiscal is appointed for each province,
Said removal is illegal and unlawful unless
741
VOL. 84, OCTOBER 14, 1949 741
Lacson vs. Romero
1. for cause as provided by law and the Constitution, and the
confirmation of the nomination by the Commission on
Appointments doea not and cannot validate the removal,
since the Constitution is equally binding on the Legislature.
1. 3.ID. ; ID. ; NATURE OF OFFICE.—A provincial fiscal who is
nominated and appointed by the President with the consent
of the Commission on Appointments, is under secticm 671
(&) of the Eevised Administrative Code included in the
unclassified service of the Civil Service.
1. 4.ID. ; ID. ; CONSTITUTIONAL
PROHIBITION ; PRESIDENT WITH CONCURRENCE OP

COMMISSION ON APPOINTMENTS MAY NOT REMOVE
PISCAL WITHOUT CAUSE.—A provincial fiscal as a civil
service official may not be removed from office even by the
President who appointed him, and even with the consent of
the Commission on Appointments, except for cause. Article
XII, section 4 of the Constitution provides that no officer or
employee in the Civil Service shall be removed or
suspended except for cause as provided by law. This
constitutional prohibition is a limitation to the inherent power
of the Executive to remove those civil service offlcials whom
he appoints.
1. 5.ID.; ID.; TENURE OF OFFICE.—A provincial fiscal duly
appointed, until he reaches the age of 65 has the right to
continue in offlce unless sooner removed for cause. In other
words, he enjoys tenure of office, which is duly protected by
statute and by the Constitution.
1. 6.ID. ; REMOVAL OR SUSPENSION OF A CIVIL SERVICE
OFFICIAL OR EMPLOYEE, REQUISITES OF.—By the
mandate of sections 64 and 694 of the Revised
Administrative Code, before a civil service official or
employee can be removed, there must first be an
investigation at which he must be given a fair hearing and an
opportunity to defend himself.
1. 7.ID.; REMOVAL WITHOUT LAWFUL CAUSE IN THE
GUISE OF TRANSPER FROM ONE OFFICE TO
ANOTHER WITHOUT TRANSFEREE'S CONSENT,
EFFECT OF.—To permit circumvention of the constitutional
prohibition (Art. XII, sec. 4) by allowing removal from office
without lawful cause, in the form or guise of transfers from
one office to another, or from one province to another,
without the consent of the transferee, would blast the hopes
of those young civil service officials and career men and
women, destroy their security and tenure of office and made
for a subservient, discontented and inefficient civil service
force that sways with every political wind that blows and
plays up to whatever political party is in the saddle. That
ADMELEC Cases
23
would be far from what the framers of our Constitution
contemplated and desired. Neither
742
742 PHILIPPINE REPORTS
ANNOTATED
Lacson vs. Romero
1. would that be our concept of a free and efficient Government
force, possessed of self-respect and reasonable ambition.
OBIGINAL ACTION in the Supreme Court. Quo Warranto.
The facts are stated in the opinion of the court.
Cruz, Puno & Lacson for petitioner.
The respondent Provincial Fiscal in his own behalf.
Solicitor General Felix Bautista, Angelo and Assistant Solicitor
Inocencio Rosal for respondent Judge.
Avena, Villaftores & Lopez for other respondents.
MONTEMAYOR, J.:
Involved in these quo warranto proceedings filed directly with this
Court is the Office of Provincial Fiscal of Negros Oriental, and the right
to said position as between the petitioner Antonio Lacson and the
respondent Honorio Romero.
The facts necessary for the decision in this case may be Stated as
follows: Petitioner Lacson was on July 25, 1946, appointed by the
President of the Philippines, provincial fiscal of Negros Oriental. The
appointment was confirmed by the Commission on Appointments on
August 6, 1946. He took his oath of office on August 10, 1946, and
thereafter performed the duties of that office.
Upon recommendation of the Secretary of Justice, on May 17,
1949, the President nominated petitioner Lacson to the post of
provincial fiscal of Tarlac. On the same date, the President nominated
for the position of provincial fiscal of Negros Oriental respondent
Romero. Both nominations were simultaneously confirmed by the
Commission on Appointments on May 19, 1949.
Lacson neither accepted the appointment nor assumed the office
of fiscal of Tarlac. But respondent Romero took his oath of office (the

post of fiscal of Negros Oriental) in Manila on June 16, 1949, notified
the Solicitor General of the f act, and thereafter proceeded to his
station. Upon arrival at Dumaguete City, capital of Negros Oriental, he
743
VOL. 84, OCTOBER 14, 1949 743
Lacson vs. Romero
notified Lacson of his intention to take over the office the following day,
but Lacson objected. On June 24, 1949, Romero appeared in criminal
case No. 4433 before Judge Gregorio S. Narvasa. In said
appearance, petitioner Lacson filed his objection aiid asked that
Romero's appearance be stricken from the record. After Romero had
exhibited his credentials as required by the court, Judge Narvasa on
the same day denied the petition of Lacson and recognized
respondent Romero as the provincial fiscal of Negros Oriental. On
June 27, 1949, Romero appeared in Special Proceedings No. 630
before Judge Felicisimo Ocampo. Lacson again objected to said
appearance but the court overruled his objection. This will explain why
Judges Narvasa and Ocampo were made respondents in these quo
warranto proceedings.
When petitioner Lacson requested payment of his salary for the
period from June 16 to June 23, 1949 as provincial fiscal of Negros
Oriental, Angel Paguia, Provincial Auditor and L. J. Alfabeto,
Provincial Treasurer turned down his claim and instead paid
respondent Romero the salary for the position of provincial fiscal from
June 16, 1949, and continued paying it to him periodically up to the
present time. Their action was based on a reply given to their query,
by the Secretary of Justice to the effect that Romero was the provincial
fiscal of Negros Oriental. This is the reason why the Auditor and the
Treasurer of Negros Oriental were likewise made respondents in
these proceedings.
The purpose of tihe present action is to establish the right of the
petitioner to the post of provincial fiscal of Negros Oriental and to oust
the respondent Romero therefrom. The petition and the memorandum
in support thereof among other things contain the following prayer:
"(1) Recognizing the right of petitioner Antonio Lacson to hold and
occupy the position of provincial fiscal of Negros Oriental;
"(2) Declaring the respondent Honorio Romero guilty of usurpation,
unlawful holding and exercise of the functions and duties of provincial
fiscal of Negros Oriental; ordering the exclusion of said
744
ADMELEC Cases
24
744 PHILIPPINE REPORTS ANNOTATED
Lacson vs. Romero
respondent from said office; and ordering him to surrender to herein
petitioner all records and papers appertaining to said office that may
have come into his possession;
"(3) Ordering respondents provincial treasurer L. J. Alfabeto and
provincial auditor Angel Paguia, or their successors in office, to pay
herein petitioner his salary commencing June 16, 1949, up to the
present time and until herein petitioner shall have legally ceased to be
the incumbent of said office; and
"(4) Ordering respondent Honorio Komero to pay the costs."
Incidentally, and to serve as background in the consideration of this
case, it may be stated that when the nominations of Lacson and
Romero to the posts of Provincial Fiscal of Tarlac and Negros Oriental,
respectively, were made in May, 1949, Negros Oriental was a second
class province with a salary of 1*5,100 per annum for the post of
provincial fiscal, while Tarlac was first class simple with a higher
salary of 1*5,700 per annum for its provincial fiscal. There is therefore
reason to believe that the nomination of Lacson to Tarlac or rather his
attempted trarisf er f rom Negros Oriental to Tarlac was intended and
considered as a promotion. At least, there is nothing in the record to
show that he was being deliberately eased out of or removed from his
post in Negros Oriental. However, after the appointments and
confirmations, the President raised the province of Negros Oriental to
the category of First Class A province with retroactive effect as of
January 1, 1949. It is alleged by respondent Romero that after the
filing of the present petition, Tarlac was likewise raised to the category
of First Classi B province on July 15, 1949 so that thereafter the salary
for provincial fiscal in both province is the same, namely, P6,000 each.
This might be one of the reasons why petitioner Lacson declined to
accept his nomination to the Province of Tarlac, prefering to remain at
his old post of provincial fiscal of Negros Oriental.
The determination as to who is entitled to the position of provincial
fiscal of Negros Oriental, depends upon the correct answers to several
queries such as: (1) Did the
745
VOL. 84, OCTOBER 14, 1949 745
Lacson vs. Romero

Commission on Appointments alone, without his acceptance
nomination of Lacson to Tarlac and its confirmation by the thereof
create a vacancy in the post of provincial fiscal of Negros Oriental so
that Romero could be lawf ully appointed to said vacancy? (2) Does
the nomination of Lacson to Tarlac and its confirmation by the
Commission on Appointments serve as and is equivalent to a removal
of Lacson as fiscal of Negros Oriental? If in the affirmative, was that
removal valid and lawful? (3) Could the President who appointed
Lacson as provincial fiscal of Negros Oriental remove him at will and
without cause, or did the post of provincial fiscal in general have
attached to it a tenure of office during which the incumbent may not
be removed except for cause?
The appointment to a government post like that of provincial fiseal
to be complete involves several steps. First, comes the nomination by
the President. Then to make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to confirm said
nomination. The last step is the acceptance thereof by the appointee
by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the
Executive and Legislative departments of the Government. But the
last necessary step to make the appointment complete and effective
rests solely with the appointee himself. He may or he may not accept
the appointment or nomination. As held in the case of
Borromeo vs. Mariano, 41 Phil., 327, "there is no power in this country
which can compel a man to accept an office." Consequently, since
Lacson has declined to accept his appointment as provincial fiscal of
Tarlac and no one can compel him to do so, then he continues as
provincial fiscal of Negros Oriental and no vacancy in said office was
created, unless Lacson had been lawfully removed as such fiscal of
Negros Oriental.
As to the second question, it is obvious that the intended transf er
of Lacson to Tarlac on the basis of his nomination thereto, if carried
out, would be equivalent to a removal
746
746 PHILIPPINE REPORTS ANNOTATED
Lacson vs. Romero
from his office in Negros Oriental. To appoint and transfer him from
one province to another would mean his removal or separation from
the first province. The reason is that a fiscal is appointed for each
province (sec. 1673, Rev. Adm. Code), and Lacson could not well and
ADMELEC Cases
25
legally hold and occupy the two posts of fiscal of Tarlac and Negros
Oriental simultaneously. To be fiscal for Tarlac must mean his removal
from Negros Oriental.
In the case of Nicolas vs. Alberto, 51 Phil., 370, this Court held that
"a transfer of a Justice of the Peace outside of the municipality of
which he is appointed is in legal effect a combined removal and
appointment." (Decision in this case was reversed by the U. S.
Supreme Court [279 U. S., 141], but on other grounds, leaving the
doctrine on transfer and removal undisturbed.) When the transfer is
consented to and accepted by the transferees, then there would be
n.o question; but where as in the present case, the transfer is
involuntary and objected to, then it is necessary to decide whether the
removal is lawful.
What is the nature of the office of provincial fiscal? Is it included in
the Civil Service? The answer is, undoubtedly, in the affirmative.
Article XII, section 1 of our Constitution provides that "a Civil Service
embracing all branches and subdivisions of the Government shall be
provided by law." Section 668 of the Administrative Code as amended
by Com. Act No. 177, sec. 6, provides that "the Philippine Civil Service
shall embrace all branches and subdivisions of the Government;" and
section 670 of the same Code provides that "persons in the Philippine
Civil Service pertain either to the classified or unclassified service."
Section 671 of the same code as amended by Commonwealth Act No.
177, section 8 in part provides as follows:
"Sec. 671. Persons embraced in unclassified service.—The following
officers and employees constitute the unclassified service:
"(a) A secretary, a sergeant-at-arms, and such other officers as
may be required and chosen by the National Assembly in accordance
with the Constitution.
747
VOL. 84, OCTOBER 14, 1949 747
Lacson vs. Romero
"(b) Officers, other than the provincial treasurers and Assistant
Directors of Bureaus or Offices, appointed by ihe. President of the
Philippines, with the consent of the Commission on Appointments of
the National Assembly, and all other officers of the Government
whose appointments are by law vested in the President of the
Philippines alone.
"(c) Elective offlcers."

* * * * * *
* new concept of the public office as a career open to all and not the
From the foregoing, we find that the post of provincial fiscal in the
Philippines is included in subsection (b) above-quoted particularly the
underlined portion thereof. The law regarding appointment to the post
of provincial fiscal is contained in section 66 of the Administrative
Code which provides that "the Governor-General (now the President)
shall appoint among other officials, Secretaries to Departments,
Provincial Treasurers, Provincial Fiscais> Register of Deeds, ete."
And, Article VII, section 10(3) of the Constitution provides that the
President shall nominate and with the consent of the Commission on
Appointments shall appoint among other officials, "all other officers of
the Government whose appointments are not herein otherwise
provided for" which clearly includes the office of provincial fiscal. It is
therefore clear that a provincial fiscal who is nominated and appointed
by the President with the consent of the Commission on
Appointments, as was petitioner Lacson, is, under section 671 (b)
above-quoted, included in the unclassified service of the Civil Servicfe.
The next question arises as to whether the President even with the
concurrence or consent of the Commission on Appointments may
remove a provincial fiscal without cause. The Constitution itself denies
said right. Article XII, section 4 of said instrument provides that "no
officer or employee in the civil service shall be removed or suspended
except for cause as provided by law." This constitutional provision is
reproduced word for word in the first paragraph of sec. 694 of the Rev.
Adm. Code, as amended by Commonwealth Act No. 177, section 22.
748
748 PHILIPPINE REPORTS ANNOTATED
Lacson vs. Romero
In order to better appreciate the meaning of this constitutional
provision as well as the purpose behind it, it is necessary to delve,
though ever so lightly into the framing of this basic instrument. The
Committee on Civil Service of the Constitutional Convention which
drafted the Constitution in its report and in advocating the merit system
in connection with a civil service system among other things stated the
following:
"The adoption of the 'merit system' in government service has secured
efficiency and social justice. It eliminates the political factor in the
selection of civil employees which is the first essential to an efficient
personnel system. It insures equality of opportunity to all deserving
ADMELEC Cases
26
applicants desirous of a career in the public service. It advocates a
exclusive patrimony of any party or faction to be doled out as a reward
for party service." (Aruego's Fraining of the Constitution, Vol. II, p.
886.)
"The 'merit system' was adopted only after the nations of the world
took cognizance of its merits. Political patronage in the government
service was sanctioned in 1789 by the constitutional right of the
President of the United States to act alone in the matter of renxovals.
From the time of Andrew Jackson, the principle of the 'To the victor
belong the spoils' dominated the Federal Government. The system
undermined moral values and destroyed administrative efficiency."
.... (Ibid. p. 886.)
"Since the establishment of the American Regime in the
Philippines we have enjoyed the benefits of the 'merit system.' The
Schurman Commission advocated in its report th'at 'the greatest care
sliould be taken in the selection of officials for administration. They
should be men of the highest character and fitness, and partisan
politics should be entirely separated from the government.' The fifth
act passed by the Philippine Cormnission created a Board of Civit
Service. It instituted a system here that was far more radical and
thorough than that in the United States. The Governors-General after
William Taft adopted the policy of appointing Filipinos in the
government regardless of their party affiliation. As the result of these
'the personnel of the Civil Service had gradually come to be one of
which the people of the United States could feel justly proud.'
"Necessity for Constitutional Provisions.—The inclusion in the
constitution of provisions regarding the 'merit system' is a necessity of
modern times. As its establishment secures good government, the
749
VOL, 84, OCTOBER 14, 1949 749
Lacson vs. Romero
citizens have a right to expect its guarantee as a permanent
institution (Ibid. p. 887.)
"Separations, Suspensions, Demotions,and- Transf&rs.—
Th& 'merit system' will be ineffective if no safeguards are placed
around the separation and removal of public employees. The
Committee's report requires that removals shall be made only for
'causes and in the manner provided by law.' This means that there
should be bona fide reasons and action may be taken only after the

employee shall have been given a fair hearing. This affords to public
employees reasonable security of tenure." (Ibid. p. 890.)
It is contended on behalf of the respondent that the power of removal
is inherent in the power to appoint and that consequently, the
President had the right to reiriove the petitioner as provincial fiscal of
Negros Oriental and transfer him to Tarlac. Ordinarily, where there is
no constitutional limitation the contention of the responderit would be
tenable; but where as in the Philippines and as already stated the
Constitution forbids the removal of a civil service official or employee
like the petitioner except for cause as provided by law, said right of the
Ghief Executive is qualified and limited. That constitutional prohibition
is a limitation to the inherent power of the Exeeutive to remove those
civil service officials whom he appoints. This is the reason why we find
the American cases cited in support of respondent's theory to be
inapplicable. The prohibition against removal except for cause
eontained in our Constitution has no counterpart iri the Federal
Constitutibn of the United States.
Again, it is contended that the provincial fiscal is not appointed for
a fixed term and that there is no tenure of office attached to the post.
This contention is without merit. As we have already stated, a
provinqial fiscal as a civil service official may not be removed from
offiee even by the President who appointed him, and even with the
consent of the Commission on Appointments, except for cause.
Considering this security ancl protection accorded a provincial fiscal
from. arbitrary and illegal removal from office, and considering the
provisions of s.ection 1673 of the Administrative Code which among
other things provides,
750
750 PHILIPPINE REPORTS ANNOTATED
Lacson vs. Romero
that "after December 31, 1932 any city fiseal or assistant city fiscal of
Manila, promncial fiscal or deputy provincial fiscal over 65 years of
age shall vacate his offiee, the logieal inference is that a provincial
fiscal duly appointed, until he reaches the age of 65 has the right to
continue in office unless sooner removed for cause. In other words,
he enjoys tenure of office, which is duly protected by statute and by
the Constitution.
The last part of the report of the Committee on Civil Service of the
Constitutional Convention which we have reproduced mentions this
tenure of office in its last sentence,—"This affords public employees
ADMELEC Cases
27
reasonable security or tenure." Speaking of tenure of offiee of
members of the civil service in the Philippines, Prof essor Sinco in his
book on Philippine Political Law has the following to say:
"Seeurity of Tenure.
"Nothing can be more demoralizing to a group of civil servants than
the fear that they might be removed from their posts any time at the
pleasure of their superiors. It goes without saying that a demoralized
force is an inefficient force. Security of tenure is necessary in order to
obtain efficiency in the civil service. For this purpose the Constitution
provides that 'no officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law.'
(Philippine Political Law by Sinco, p. 350.)
"In our discussion of the functions of the President, it was there
shown that the President's power of removal, which is implied from his
power of appointment, is very comprehensive and almost unlimited
when it affects officers holding purely executive positions. This class
of officers, under the rule laid down in the Meyers case, may be
removed by the President at practically any time and for any cause.
No statutory check, such as a requirement that his order of removal
should be subject to the previous consent of the senate or the
Gommission on Appeintments before it could be effeetive, may be
validly placed upon his right to exercise this power. But the provision
of the Constitution of the Philippines, which has no counterpart in the
Constitution of the United States, makes the tenwre of officers and
employees in the Civil Service secure even against the President's
power of removal and even if the officers should hold purely executive
offices. The resxilt is that the scope of the rule established in the
Meyers case is eonsiderably modifled and reduced when applied in
this jurisdiction. It may only apply in case of executive officers
appointed
751
VOL. 84, OCTOBER 14, 1949 751
Lacson vs. Romero
by the President and not belonging to the Civil Service as establised
by the Constitution." (Ibid. pp. 350-351.)
It is also coritended by the respondent that neither the Constitution nor
the laws passed by the Legislature mention or enumerate the cause
or causes for which a civil service official may be removed from office.
We find this claim untenable. Section 686 of the Revised
Administrative Code, as amended by Commonwealth Act No. 177,

section 18 provides that falsification by a civil service official of his
daily time record shall render him liable to summary removal and
subject him to prosecution as provided by law. A like provision for
removal and prosecution is found in section 687 of the same Code, as
amended by Commonwealth Act 177, section 19 which deals with
political activity and contribution to political fund by civil service
employees. Then we have Rule XIII, section 6 of the Civil Service
Rules providing thus:
"6. Discourtesy to private individuals or to Government offlcers or
employees, drunkenness, gambling, dishonesty, repeated or flagrant
violation or neglect of duty, notoriously disgraceful or immoral conduct,
physical incapacity due to immoral or vicious habits, incompetency,
inefficiency, borrowing money by superior officers from subordinates
or lending money by subordinate to superior officers, lending money
at exhorbitant rates of interest, willful failure to pay just debts,
contracting loans of money or other property from merchants or other
persons with whom the bureau of the borrower is in business relations,
pecuniary embarrassment arising from reprehensible conduct, the
pursuits of private business, vocation, or profession without
permission in writing from the chief of the bureau or offlce in which
employed and of the Governor-General (now the President) or proper
head of Department, disreputable or dishonest conduct committed
prior to entering the service, insubordination, pernicicras political
activity, offensive political partisanship or conduct prejudicial to the
best interest of the service, or the willful violation by any person in the
Philippine civil service of any of the provisions of the Revised Civil
Service Act or rules, may be considered reasons demanding
proceedings to remove for cause, to reduce in class or grade, or to
inflict other punishment as provided by law in the discretion of the
Governor-General (now the President) or proper head of Department.
No chief of a bureau or office shall knowingly continue in the public
service any subordinate officer or employee who
752
752 PHILIPPINE REPORTS ANNOTATED
Lacson vs. Romero
is inefficient or who is guilty of any of the above-named derelictions,
without submitting the facts through the Director to the
GovernorGeneral (now the President) or proper head of Department."
ADMELEC Cases
28
The law and civil service rules above referred to clearly provide the
causes or some of the causes for removal of civil service officials; and
they answer the contention of the respondent on this point.
Section 64 of the Revised Administrative Code, providing for the
particular powers and duties of the Governor-General, now the
President of the Republic, in part reads as f ollows:
* * * * * * *
"(6) To remove officials from office conformably to law and to
declare vacant the offices held by such removed officials.
For disloyalty to the United States (now the Philippines), the
GovernorGeneral (now the President) may at any time remove a
person from any position of trust or authority under the Government of
the Philippine Islands.
"(c) To order, when in his opinion the good of the public service so
requires, an investigation or any action or the conduct of any person
in the Government service, and in connection therewith to designate
the official, committee, or person by whom such investigation shall be
conducted."
* * * * * *
*
Section 694 of the Administrative Code as amended by
Commonwealth Act No. 177, section 22, reads as follows:
"Sec. 694. Removal or suspension*—No officer or employee in the
civil service shall be removed or suspended except for cause as
provided by law.
"The President of the Philippines may suspend any chief or
assistant chief of a bureau or office, and in the absence of special
provision, any other officer appointed by him, pending an investigation
of charges against such officer or pending an investigation of his
bureau or office. With the approval of the proper head of department,
the chief of a bureau or office may likewise suspend any subordinate
or employee in his bureau or under his authority pending an
investigation, if the charge against such svibordinate or employee
involves dishonesty, oppression, or grave misconduct or neglect in the
performance of duty."
753
VOL. 84,- OCTOBER 14, 1949 753
Lacson vs. Romero
From the sections above-quoted, the inference is inevitable that
before a civil service official or employee can be removed, there must

first be an investigation at which he must be given a fair hearing and
an opportunity to defend himself. In the case of petitioner Lacson, the
record fails to show, neither is there any claim that he has been
charged with any violation of law or civil service regulation, much less
investigated and thereafter found guilty so as to authorize or warrant
removal from. office. In view of the foregoing, we are constrained to
find and to hold that the transfer of Lacson to Tarlac by his. nomination
to the post of provincial fiscal of that province was equivalent to and
meant his removal as provincial fiscal of Negros Oriental; that said
removal was illegal and unlawful for lack of valid cause as provided by
law and the Constitution; that the confirmation of the nomination by
the Commission on Appointments did not and could not validate the
removal, since the Constitution is equally binding on the Legislature;
that a provincial fiscal is a civil service official or employee whose
tenure of office is protected by the Constitution; and that Antonio
Lacson could not be compelled to accept his appointment as
provincial fiscal of Tarlac; that having declined said appointment, he
continued as provincial fiscal of Negros Oriental; that inasmuch as he
neither left, abandoned nor resigned from his post as provincial fiscal
of Negros Oriental, there was no vacancy in said post to which the
respondent could be legally appointed; and that consequently, the
appointment of the respondent was invalid.
In this connection we may point out that the Constitution having
clearly limited and qualified the Presidential power of removal in order
to protect civil service officials and emplpyees, secure to them a
reasonable tenure of office and thus give the country the benefit of an
efficient civil service based on the merit system, this Court could do
no less than give effect to the plain intent and spirit of the basic law,
specially when it is supplemented and given due course by statutes,
rules and regulations. To hold that civil service-
754
754 PHILIPPINE REPORTS ANNOTATED
Lacson vs. Romero
officials hold their office at the will of the appointing power subject to
removal or forced transfer at any time, would demoralize and
undermine and eventually destroy the whole Civil Service System and
structure. The country would then go back to the days of the old
Jacksonian Spoils System under which a victorious Chief Executive,
after the elections could if so minded, sweep out of office, civil service
employees differing in political color or affiliation f rom him, and sweep
ADMELEC Cases
29
in his political f ollowers and adherents, especially those who have
given him help, political or otherwise. A Chief Executive running for re-
election may even do this before election time not only to embarrass
and eliminate his political enemies from office but also to put his
followers in power so that with their official influence they could the
better help him and his party in the elections. As may be gathered f
rom the report of the Committee of the Constitutional Convention
which we have reproduced at the beginning of this opinion, the f
ramers of our Constitution, at least the Civil Service Committee
thereof, condemned said spoils system and purposely and
deliberately inserted the constitutional prohibition against removal
except for cause, which now forms the basis of this decision.
There are hundreds, yea, thousands of young, ambitious people
who enter the Civil Service not temporarily or as a makeshift, but to
make a career out of it. They give the best years of their lives to the
service in tihe hope and expectation that with faithful service, loyalty
and soine talent, they may eventually attain the upper reaches and
levels of official hierarchy.
To permit circumvention of the constitutional prohibition in question
by allowing removal from office without lawful cause, in the form or
guise of transfers from one office to another, or from one province to
another, without the consent of the transferee, would blast the hopes
of these young civil service officials and career men and women,
destroy their security and tenure of office and make for a
755
VOL. 84, OCTOBER 14, 1949 755
Lacson vs. Romero
subservient, discontented and inefficient civil service force that sways
with every political wind that blows and plays up to whatever political
party is in the saddle. That would be far from what the framers of our
Constitution contemplated and desired. Neither would that be our
concept of a free and efficient Government force, possessed of
selfrespect and reasonable ambition.
Incidentally, it happens that the petitioner is one of those we had
in mind as making a career of the Government service. He claims and
it is not denied by the respondent, that twenty years ago he entered
the service of the Government as register of deeds of Negros Oriental,
then was promoted to the post of fiscal, first of the Province of
Palawan, then of Surigao, later of Antique and lastly of Negros Oriental
in 1946. He does not want to accept the transfer to the Province of

Tarlac. His only alfernative would be to resign, sacrifice his twenty
years of continuous, faithful service and his career, and perchance his
hope that some day, he might yet be promoted to the judiciary. Not a
very bright prospect or picture, not only to him but to other civil service
officials in like circumstances.
But in justice to the President and the Commission on
Appointments, let it be stated once again that it would seem that the
transfer of the petitioner to Tarlac was not meant and intended as a
punishment, a disciplinary measure or demotion. It was really a
promotion, at least at the time the appointment was made. Only, that
later, due to a change in the category of Oriental Negros as a province,
the transfer was no longer a promotion in salary. And yet the
respondent and the Solicitor General insisted in the transfer despite
the refusal of the petitioner to accept his new appointment.
In conclusion, we find and declare the petitioner to be the provincial
fiscal of Negros Oriental, and tlie respondent not being entitled to said
post, is hereby ordered to surrender to the petitioner all the records or
papers appertaining to sald office that may have come into his
possession.
756
756 PHILIPPINE REPORTS ANNOTATED
Villavert vs. Fornier
The respondent provincial auditor and provincial treasurer are hereby
ordered to pay to the herein petitioner his salary from June 16, 1949,
and as long as said petitioner continues to be the legal incumbent to
the office in question. Considering that the respondent appears to
have acted in good faith and relied upon his nomination by the
President and the confirmation thereof by the Commission on
Appointments, as well as the position taken by the Solicitor General,
who sustained his appointment, we make no pronouncement as to
costs.
No. L-32271. January 27, 1983.*
MARCIAL COSTIN, ESTANISLAO LAJER, LIONEL KANEN as Chief
of Police; FRANCISCO TISADO, OCTAVIO TRAYA as Municipal
Mayor; DOMINGO IPONG as Municipal Treasurer; and THE
MUNICIPAL COUNCIL OF ABUYOG, LEYTE,
ADMELEC Cases
30
petitioners, vs. HONORABLE LOPE C. QUIMBO, Judge of the Court
of First Instance of Leyte, and HIGINIO VERRA, respondents.
Civil Service; Public Officers; Validity of new appointment hinges
on legality of incumbent’s removal.—When respondent Verra was
appointed chief of police on January 14, 1960, Lajer had just been
dismissed from office with several other members of the police force.
The validity of Verra’s appointment, therefore, hinges on the
_______________
*FIRST DIVISION.
160
160 SUPREME COURT REPORTS
ANNOTATED
Costin vs. Quimbo
legality of Lajer’s removal. It is elementary in the law of public
officers that no person, no matter how qualified and eligible he is for a
certain position may be appointed to an office which is not vacant.
There can be no appointment to a non-vacant position. The incumbent
must first be legally removed or his appointment validly terminated.
Same; Same; A promotional appointment not yet attested by the
Civil Service Commissioner is not yet final and complete.—The private
respondent is correct in asserting that when the promotional
appointment of Lajer was made in 1959, it could not be considered
final or complete. Under Section 2(a) of Rule VI, the Civil Service
Rules implementing Section 16(g) of Republic Act 2260, an
appointment extended by an officer duly empowered to make it is not
final and complete until after the Commissioner of Civil Service has
certified that such an appointment may be made.
Same; Same; Police Act; The incoming mayor must first await
the action of the Provincial Treasurer and the Civil Service
Commissioner on the promotional appointment made by the former
mayor before appointing his own protegee.—However, these
requirements could not be complied with because Lajer, who had
been appointed on November 25, 1959 was replaced on January 14,
1960 by the new mayor of the municipality who appointed Verra in his
stead. As pointed out in Dichoso v. Valdepenas (5 SCRA 1069, 1075),
the incoming mayor should have awaited the action of the provincial
treasurer and later, the Commissioner of Civil Service, before

appointing his own protege to a position with an incumbent occupying
it. Respondent Verra cannot rely on the absence of an attestation from
the provincial treasurer and a certification from the Civil Service
Commissioner insofar as Lajer’s appointment is concerned because
by the fact of Verra’s appointment, these requirements could no longer
be fulfilled. Mayor Octavio Traya took the appointments away from the
office of the Provincial Treasurer before they could be acted upon. The
Commissioner could no longer act within 180 days.
Same; Same; Same; Position in question refers to that of Chief
of Police.—Respondent’s Verra now contends that Lajer was ordered
reinstated to the position of sergeant and not chief of police. Mr. Verra
cannot read into a Court of Appeals decision something which is not
there. Mr. Lajer did not go to court to contest the position of police
sergeant or to question his removal as police sergeant. He was never
removed from a position as sergeant of police. Lajer filed a peti-
161
VOL. 120, JANUARY 27, 1983 161
Costin vs. Quimbo
tion for mandamus to be reinstated as chief of police. The
January 30, 1961 decision of Judge S. C. Moscoso of the Court of
First Instance of Leyte discusses an appointment as chief of police.
When the decision ordering Lajer’s reinstatement was appealed to the
Court of Appeals, the appellate court specifically described petitioner
Lajer as chief of police and petitioner Mariano Tomines, as police
sergeant. When Lajer and Tomines were ordered reinstated, it was to
the said positions as chief of police and police sergeant respectively.
Same; Same; Person appointed to a position wherein incumbent
has not been legally removed is a de facto officer during the years the
latter’s case for reinstatement was pending resolution.—Never having
been validly appointed, there was no office from which he was illegally
dismissed. At most, he was a de facto officer during the years when
Lajer was litigating his action for reinstatement in the court of first
instance and in the court of appeals. And as earlier stated, the
certification by the Commissioner of Civil Service that Mr. Verra
possessed the qualifications and the eligibility, doubtful though the
latter may be, for the position of chief of police could not have made
the proceedings in court moot and academic much less rendered
inutile the 1966 decision of the Court of Appeals granting the petition
for a writ of mandamus in Lajer’s favor.
ADMELEC Cases
31
Same; Same; Judgment; Judgment that has become final can
no longer be put in issue.—It is too late in the day now to debate the
correctness of the Court of Appeals decision that non-attestation was
not sufficient cause for outright removal. The decision has long been
final and was implemented in 1966. There is similarly no point in
resolving the issue as to who has better qualifications and more nearly
appropriate eligibility for the position of chief of police—a police
sergeant with ten years experience and patrolman’s eligibility or a
school teacher with a senior teacher’s eligibility.
Same; Same; Police Act; Actions; Mandamus; A person not
party to a mandamus petition is bound to obey the order of the court
thereat.—Verra asks if he should be bound by the decision of the
Court of Appeals, not having been a party to the case. The issue
before the Court of First Instance and the Court of Appeals was
whether or not the Mayor, Municipal council, Municipal Treasurer, and
the Municipality of Abuyog, Leyte illegally terminated the chief of
police, sergeant of police, and six other members of the police force
from their respective offices and whether or not mandamus may issue
to compel their reinstatement. Mandamus having issued, any
162
162 SUPREME COURT REPORTS
ANNOTATED
Costin vs. Quimbo
person whether Mr. Higinio Verra or any other appointee to the
contested position must give up the office in favor of the officer
adjudged by the courts to be entitled to it.
PETITION to review the decision of the Court of First Instance of
Leyte. Quimbo, J.
The facts are stated in the opinion of the Court.
Zoila M. Redoña and Bonifacio M. Batol for petitioners.
Leonardo L. Leonida and Francisco Aurillo for private
respondent.
GUTIERREZ, JR., J.:
In this petition for review, the petitioners seek the annulment or
reversal of the decision of the Court of First Instance of Leyte in Civil

Case No. 3606, entitled Higinio Verra v. Martial Costin, et al. In that
case for a writ of quo warranto with mandamus, the respondent court
declared Verra entitled to reinstatement with payment of salaries for
the whole period from his illegal separation from the service to the date
of his reinstatement.
Petitioner Estanislao Lajer was a member of the municipal police
force of Abuyog, Leyte since January 1, 1949. He was extended a
promotional appointment as sergeant of police on October 15, 1958.
On November 25, 1959, the outgoing municipal mayor of Abuyog
accorded Lajer another promotional appointment as chief of police.
This last appointment was not attested and approved as required by
law.
On January 14, 1960, the new municipal mayor dismissed Lajer
and eight other members of the police department. On the same day,
the municipal mayor extended to respondent Higinio Verra a
permanent appointment as Chief of Police of Abuyog with a salary of
P2,280.00 per annum. Verra immediately took over the position. His
appointment was eventually approved as permanent under Section 24
(b) of Republic Act 2260 by the Commissioner of Civil Service.
On January 19, 1960, Lajer and the eight members of the police
force filed an action for mandamus (Civil Case No. 2713) against the
municipal mayor, municipal treasurer and the
163
VOL. 120, JANUARY 27, 1983 163
Costin vs. Quimbo
municipal council of Abuyog, contesting their separation from the
service.
While this petition for mandamus was pending, there was again a
change in the municipal administration of Abuyog, Leyte as a result of
the 1963 local elections. The newly elected municipal mayor
dismissed respondent Verra from office on January 16, 1964. Verra
was replaced by Victoriano Silleza, officer-in-charge, on January 17,
1964 until October, 1964 when petitioner Marcial Costin was
appointed chief of police.
On December 29, 1964, respondent Verra filed Civil Case No.
3606 for quo warranto with mandamus against Marcial Costin, the
municipal mayor, and the municipal treasurer, questioning the legality
of his separation alleging that he could not be dismissed as chief of
police because he was a civil service eligible and in possession of an
ADMELEC Cases
32
appointment to the position of chief of police of Abuyog, Leyte duly
attested “Permanent” by the Civil Service Commission.
On January 22, 1966, the mandamus suit (Civil Case No. 2713)
filed by Lajer and his companions, which had been appealed was
decided by the Court of Appeals (CA-G.R. No. 29313-R). The
appellate court found that Lajer, Tomines, and Jervoso “were illegally
removed from office and are, therefore, entitled to reinstatement to
their respective positions with payment of the salaries they failed to
receive.”
As a result of the appellate decision, petitioner (then mayor) Tisado
reinstated Lajer as chief of police on April 1, 1966.
On July 24, 1966, respondent Verra amended his petition in Civil
Case No. 3606, impleading Lajer as additional respondent therein.
On November 7, 1968, respondent Verra filed a second amended
petition including as respondents the following: Octavio Traya, who
succeeded Tisado as mayor; Lionel Kanen who succeeded Lajer as
chief of police (Lajer retired from the service on February 1, 1968);
Domingo Ipong who succeeded Cuyno (deceased) as municipal
treasurer; and the Municipal Council of Abuyog, which appropriates
funds for the office in question.
On December 2, 1969, respondent judge rendered his deci-
164
164 SUPREME COURT REPORTS ANNOTATED
Costin vs. Quimbo
sion in Civil Case No. 3606, declaring that Verra is entitled to
reinstatement with salary to be paid to him for the whole period of his
illegal separation to the date of his reinstatement. The court also
ordered the municipal mayor to reinstate Verra immediately and the
municipal treasurer to pay his salary. This decision is now before us
for review.
Hence, the present petition with the following assignments of
errors:
1. “I.THAT THE HONORABLE COURT A QUO ERRED IN
DECLARING THAT THE COURT OF APPEALS IN ITS
DECISION ON CIVIL CASE C.A. G.R. NO. 29313-R (Civil
Case No. 2713), CFI, LEYTE) ORDERED THE
REINSTATEMENT OF PETITIONER ESTANISLAO LAJER
TO THE POSITION OF SERGEANT OF POLICE OF

ABUYOG, LEYTE AND NOT TO THE POSITION OF CHIEF
OF POLICE;
2. “II.THAT THE HONORABLE COURT A QUO ERRED IN NOT
DECLARING THAT THERE WAS NO VACANCY IN THE
OFFICE OF CHIEF OF POLICE OF ABUYOG, LEYTE TO
WHICH RESPONDENT HIGINIO VERRA COULD HAVE
BEEN VALIDLY AND EFFECTIVELY APPOINTED;
3. “III.THAT THE HONORABLE COURT A QUO ERRED IN
HOLDING THAT THE ISSUE INVOLVED IN THIS CASE IS
THE LEGALITY OF RESPONDENT HIGINIO VERRA’S
REMOVAL FROM THE SERVICE AS CHIEF OF POLICE
AND NOT THE VALIDITY OF HIS APPOINTMENT
THERETO;
4. “IV.THAT THE HONORABLE COURT A QUO ERRED IN
HOLDING THAT THE SEPARATION OF RESPONDENT
HIGINIO VERRA FROM THE OFFICE OF THE CHIEF OF
POLICE WAS ILLEGAL;
5. “V.THAT THE HONORABLE COURT A QUO ERRED IN
HOLDING THAT RESPONDENT HIGINIO VERRA, NOT
BEING A PARTY IN CIVIL CASE NO. 2713 (CFI, LEYTE)
FOR MANDAMUS, IS NOT BOUND BY ITS DECISION
THEREON;
6. “VI.THAT, FINALLY, THE HONORABLE COURT A QUO
ERRED IN ORDERING THE REINSTATEMENT OF
OFTMENTIONED HIGINIO VERRA TO THE POSITION OF
CHIEF OF POLICE.”
The foregoing assignments of errors may be narrowed down to the
following issues:
165
VOL. 120, JANUARY 27, 1983 165
Costin vs. Quimbo
1. 1.Whether or not the appointment of respondent Higinio Verra
to the position of Chief of Police of Abuyog, Leyte, was valid
and consequently his removal therefrom illegal.
2. 2.Whether the Court of Appeals in its decision in C.A.-G.R.
No. 29313-R (Civil Case No. 2713-CFI, Leyte) ordered the
ADMELEC Cases
33
reinstatement of petitioner Lajer to the position of Sergeant
of Police or Chief of Police.
3. 3.Whether or not respondent Verra is bound by the decision
of the lower court in Case No. 2713-CFI, Leyte, for
mandamus, not being a party to it.
With respect to the first issue, the petitioners argue that the
appointment issued in favor of respondent Verra as chief of police on
January 14, 1960, was invalid and ineffective because the said
position was not vacant from the time Lajer was illegally separated on
January 14, 1960, up to the time he was actually reinstated. This is,
according to the petitioners, premised on the fact that the Court of
Appeals in deciding Civil Case No. 2713, CFI-Leyte, ordered Lajer’s
reinstatement which also legalized the dismissal of respondent Verra.
Respondent Verra, on the other hand, contends that the of fice in
question was legally vacant when he was appointed thereto because
Lajer’s appointment was never attested as required by law or
incomplete, and, therefore, never became effective. It is further
contended that Lajer’s appointment as chief of police was temporary
in character and terminable at the pleasure of the appointing authority
and when Lajer was separated from the office of chief of police, the
position became legally and physically vacant. Verra also claims that
since he is a civil service eligible and his appointment as chief of police
was attested as permanent under Section 20 of Republic Act 2260
and served as such for four (4) years and two (2) days when he was
dismissed without cause, his dismissal is illegal.
We find the petition meritorious.
When respondent Verra was appointed chief of police on January
14, 1960, Lajer had just been dismissed from office with several other
members of the police force. The validity of Verra’s appointment,
therefore, hinges on the legality of Lajer’s removal. It is elementary in
the law of public officers that
166
166 SUPREME COURT REPORTS ANNOTATED
Costin vs. Quimbo
no person, no matter how qualified and eligible he is for a certain
position may be appointed to an office which is not vacant. There can
be no appointment to a non-vacant position. The incumbent must first
be legally removed or his appointment validly terminated.

The lower court’s error lies in its looking at the issues primarily from
the viewpoint of Verra’s removal, his qualifications and eligibility for
the position, and whether or not his dismissal was valid. In the
process, the lower court overlooked the fact that Verra could not have
been permanently appointed to the contested position because no
less than the Court of Appeals had declared that his predecessor,
Estanislao Lajer was illegally terminated from office and must be
reinstated to his former position.
Respondent Verra argues that Lajer’s appointment as chief of
police was temporary and terminable at the pleasure of the appointing
power.
The private respondent is correct in asserting that when the
promotional appointment of Lajer was made in 1959, it could not be
considered final or complete. Under Section 2(a) of Rule VI, the Civil
Service Rules implementing Section 16(g) of Republic Act 2260, an
appointment extended by an officer duly empowered to make it is not
final and complete until after the Commissioner of Civil Service has
certified that such an appointment may be made. (Gorospe v.
Secretary of Public Works and Communications et al., 105 Phil. 129)
It is likewise true that under Section 20 of Republic Act 2260 which,
in part, provides:
“ ‘SEC. 20. Delegation in the Civil Service Commission and to the
Agencies.—x x x Appointments by x x x municipal mayors shall
become effective upon issuance of such appointments and upon
attestation by the provincial treasurer in the case of appointments
made by x x x municipal mayors x x x. All appointments made by the
x x x municipal mayors x x x shall, after being attested to by the
respective provincial treasurer x x x be forwarded within ten days to
the Commissioner of Civil Service for review pursuant to Civil Service
law and rules. If within one hundred eighty days after receipt of said
appointments, the Commissioner of Civil Service shall
167
VOL. 120, JANUARY 27, 1983 167
Costin vs. Quimbo
not have made any correction or revision, then such appointments
shall be deemed to have been properly made. x x x.’ ”
the attestation by the provincial treasurer of Leyte was necessary to
make the appointment of petitioner Lajer effective.** However, these
requirements could not be complied with because Lajer, who had
been appointed on November 25, 1959 was replaced on January 14,
ADMELEC Cases
34
1960 by the new mayor of the municipality who appointed Verra in his
stead. As pointed out in Dichoso v. Valdepenas (5 SCRA 1069, 1075),
the incoming mayor should have awaited the action of the provincial
treasurer and later, the Commissioner of Civil Service, before
appointing his own protege to a position with an incumbent occupying
it. Respondent Verra cannot rely on the absence of an attestation from
the provincial treasurer and a certification from the Civil Service
Commissioner insofar as Lajer’s appointment is concerned because
by the fact of Verra’s appointment, these requirements could no longer
be fulfilled. Mayor Octavio Traya took the appointments away from the
office of the Provincial Treasurer before they could be acted upon. The
Commissioner could no longer act within 180 days.
The insuperable factor, however, which stands in the way of
Verra’s reinstatement with backwages for eighteen (18) years from
1964 to the present is the Court of Appeals decision in La-jer et al. v.
Traya et al. (CA-G.R. No. 29313-R, January 22, 1966). The Court of
Appeals was presented squarely with the issue of whether or not
Estanislao Lajer and seven other petitioners were illegally separated
from the service by Mayor Octavio Traya. In a decision penned by
Justice Salvador V. Esguerra, concurred in by Presiding Justice
Conrado V. Sanchez and Justice Magno S. Gatmaitan, the First
Division of the Court of Appeals ruled that Estanislao Lajer, Mariano
______________
**Republic Act 6040, in creating regional offices of the Civil Service
Commission, removed the authority to attest or approve appointments
vested upon provincial or city treasurers. Under Presidential Decree
No. 807, Section 8 (h) “(a)n appointment shall take effect immediately
upon issue by the appointing authority if the appointee assumes his
duties immediately and shall remain effective until it is disapproved by
the Commission x x x.”
168
168 SUPREME COURT REPORTS ANNOTATED
Costin vs. Quimbo
Tomines, and Melecio Jervoso were illegally removed from office and
must be reinstated.
Respondent’s Verra now contends that Lajer was ordered
reinstated to the position of sergeant and not chief of police. Mr. Verra

cannot read into a Court of Appeals decision something which is not
there.
Mr. Lajer did not go to court to contest the position of police
sergeant or to question his removal as police sergeant. He was never
removed from a position as sergeant of police. Lajer filed a petition for
mandamus to be reinstated as chief of police. The January 30, 1961
decision of Judge S. C. Moscoso of the Court of First Instance of Leyte
discusses an appointment as chief of police. When the decision
ordering Lajer’s reinstatement was appealed to the Court of Appeals,
the appellate court specifically described petitioner Lajer as chief of
police and petitioner Mariano Tomines, as police sergeant. When
Lajer and Tomines were ordered reinstated, it was to the said positions
as chief of police and police sergeant respectively.
The argument of respondent Verra that Mayor Tisado should have
refrained from reinstating Lajer as chief of police notwithstanding the
decision of the Court of Appeals because he, Verra, had filed a case
with the Court of First Instance contesting the same position betrays
a lack of understanding of a final and executory decision of an
appellate tribunal. The decision of the Court of Appeals superseded
any decision that the Court of First Instance or the Civil Service
Commissioner could have rendered on the same issue and the same
facts. It was precisely the termination of Lajer’s promotional
appointment as chief of police which the appellate court struck down.
Since Lajer was not validly terminated from public office and, as a
matter of fact, was ordered reinstated through a writ of mandamus, it
follows that there was no vacancy in the office of chief of police on
January 14, 1960 and there was no office to which Higinio Verra could
have been appointed. The discussions in the decision of the
respondent judge on whether or not Higinio Verra was validly removed
from office are all beside the point. Never having been validly
appointed, there was no office from which he was illegally dismissed.
At most, he was a de facto officer during the years when Lajer was
litigating his
169
VOL. 120, JANUARY 27, 1983 169
Costin vs. Quimbo
action for reinstatement in the court of first instance and in the court of
appeals. And as earlier stated, the certification by the Commissioner
of Civil Service that Mr. Verra possessed the qualifications and the
eligibility, doubtful though the latter may be, for the position of chief of
ADMELEC Cases
35
police could not have made the proceedings, in court moot and
academic much less rendered inutile the 1966 decision of the Court of
Appeals granting the petition for a writ of mandamus in Lajer’s favor.
Moreover, the equities of the case do not lean towards respondent
Verra. Estanislao Lajer had been a member of the Abuyog police force
since January 1, 1949. He had passed the patrolman’s examination,
was promoted to corporal, later to sergeant, and finally to chief of
police in his tenth year of service. On the other hand, Higinio Verra
was a school teacher with apparently no police experience
whatsoever when he was appointed chief of police on January 14,
1960. It is too late in the day now to debate the correctness of the
Court of Appeals decision that non-attestation was not sufficient cause
for outright removal. The decision has long been final and was
implemented in 1966. There is similarly no point in resolving the issue
as to who has better qualifications and more nearly appropriate
eligibility for the position of chief of police—a police sergeant with ten
years experience and patrolman’s eligibility or a school teacher with a
senior teacher’s eligibility.
Verra asks if he should be bound by the decision of the Court of
Appeals, not having been a party to the case. The issue before the
Court of First Instance and the Court of Appeals was whether or not
the Mayor, Municipal council, Municipal Treasurer, and the
Municipality of Abuyog, Leyte illegally terminated the chief of police,
sergeant of police, and six other members of the police force from their
respective offices and whether or not mandamus may issue to compel
their reinstatement. Mandamus having issued, any person whether
Mr. Higinio Verra or any other appointee to the contested position must
give up the office in favor of the officer adjudged by the courts to be
entitled to it.
WHEREFORE, the instant petition is hereby granted. The decision
of the respondent court in Civil Case No. 3606 is
170
170 SUPREME COURT REPORTS ANNOTATED
Costin vs. Quimbo
reversed and set aside and the petition for quo warranto with
mandamus filed in the court a quo is ordered dismissed.
SO ORDERED.

G.R. No. 78239. February 9, 1989.*
SALVACION A. MONSANTO, petitioner, vs. FULGENCIO
S. FACTORAN, JR., respondent.
Criminal Law; Pardon, Effects of; Administrative Law; Public
Officers; Pardon does not ipso facto restore a convicted felon to public
office necessarily relinquished or forfeited by reason of such
conviction.—Pardon granted after conviction frees the individual from
all the penalties and legal disabilities and restores him to all his civil
rights. But unless expressly grounded on the person’s innocence
(which is rare), it cannot bring back lost reputation for honesty, integrity
and fair dealing. This must be constantly kept in mind lest we lose
track of the true character and purpose of the privilege. Thus,
notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly-held
opinion that pardon does not ipso facto restore a convicted felon to
public office necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.
Same; Same; Same; Same; Same; The pardon granted to
petitioner resulted in removing her disqualification from holding public
employment, but to regain her former post, she must reapply and
undergo the usual procedure required for a new appointment.—For
petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of the
punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred
to that when her guilt and punishment were expunged by her pardon,
this
_______________
*EN BANC.
191
VOL. 170, FEBRUARY 9, 1989 191
Monsanto vs. Factoran, Jr.
particular disability was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which was forfeited by
reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be
ADMELEC Cases
36
and should be evaluated and taken into account to determine
ultimately whether she can once again be entrusted with public funds.
Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as assistant city
treasurer, she must reapply and undergo the usual procedure required
for a new appointment.
Same; Same; Same; Civil Liability, Extinction Of; The pardon
granted to herein petitioner did not extinguish the civil liability arising
from the crime she has been convicted of.—Finally, petitioner has
sought exemption from the payment of the civil indemnity imposed
upon her by the sentence. The Court cannot oblige her. Civil liability
arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence
is not served by pardon, amnesty or commutation of sentence.
Petitioner’s civil liability may only be extinguished by the same causes
recognized in the Civil Code, namely: payment, loss of the thing due,
remission of the debt, merger of the rights of creditor and debtor,
compensation and novation.
Same; Same; Same; Acceptance of Pardon; Petitioner is
deemed to have abandoned her appeal when she accepted the
pardon granted to her.—The 1981 amendments had deleted the
earlier rule that clemency could be extended only upon final
conviction, implying that clemency could be given even before
conviction. Thus, petitioner’s unconditional pardon was granted even
as her appeal was pending in the High Court. It is worth mentioning
that under the 1987 Constitution, the former limitation of final
conviction was restored. But be that as it may, it is our view that in the
present case, it is not material when the pardon was bestowed,
whether before or after conviction, for the result would still be the
same. Having accepted the pardon, petitioner is deemed to have
abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
PADILLA, J., Separate opinion:
Criminal Law; Pardon, Effects of; Administrative Law; Public
Officers; A public officer, like herein petitioner, who has been
convicted of Estafa Through Falsification of Public Documents, though
192

192 SUPREME COURT REPORTS
ANNOTATED
Monsanto vs. Factoran, Jr.
subsequently pardoned, is deemed to have lost her right to
public office, unless such right is expressly restored by the pardon.—
An examination of the presidential pardon in question shows that,
while petitioner was granted “an absolute and unconditional pardon
and restored to full civil and political rights”, yet, nothing
therein expressly provides that the right to hold public office was
thereby restored to the petitioner. In view of the express exclusion by
Art. 36, R.P.C., of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an
effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law—hopefully to be honored more
in its compliance rather than in its breach—that a “public office is a
public trust.” The restoration of the right to hold public office to one
who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how
intensely arguable, but must be stated in express, explicit, positive and
specific language. To require this would not be asking too much.
FELICIANO, J., concurring:
Criminal Law; Pardon, Effects Of; Administrative Law; Public
Officers; The pardon granted to herein petitioner is ineffective to
restore her right to hold public office.—In other words, the mere grant
of a pardon to a public officer or employee who has been unfaithful to
the public trust and sentenced to disqualification from voting and from
holding such office, does not create the presumption that the recipient
of the pardon has thereby suddenly become morally eligible once
more to exercise the right to vote and to hold public office. In my view,
the pardon extended to petitioner was ineffective to restore to her the
right to hold public office and on this ground, I vote to DENY the
Petition for Review and to AFFIRM the assailed Resolution of the then
Executive Secretary Fulgencio S. Factoran, Jr.
ADMELEC Cases
37
PETITION to review the resolution of the Deputy Executive
Secretary.
The facts are stated in the opinion of the Court.
FERNAN, C.J.:
The principal question raised in this petition for review is
193
VOL. 170, FEBRUARY 9, 1989 193
Monsanto vs. Factoran, Jr.
whether or not a public officer, who has been granted an absolute
pardon by the Chief Executive, is entitled to reinstatement to her
former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan
convicted petitioner Salvacion A. Monsanto (then assistant treasurer
of Calbayog City) and three other accused, of the complex crime of
estafa thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day
of prision correccional as minimum, to ten (10) years and one (1) day
of prision mayor as maximum, and to pay a fine of P3,500. They were
further ordered to jointly and severally indemnify the government in
the sum of P4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which
subsequently affirmed the same. She then filed a motion for
reconsideration but while said motion was pending, she was extended
on December 17, 1984 by then President Marcos absolute pardon
which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City
treasurer requesting that she be restored to her former post as
assistant city treasurer since the same was still vacant.
Petitioner’s letter-request was referred to the Ministry of Finance
for resolution in view of the provision of the Local Government Code
transferring the power of appointment of treasurers from the city
governments to the said Ministry. In its 4th Indorsement dated March
1, 1985, the Finance Ministry ruled that petitioner may be reinstated
to her position without the necessity of a new appointment not earlier
than the date she was extended the absolute pardon. It also directed

the city treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied.1
Seeking reconsideration of the foregoing ruling, petitioner wrote
the Ministry on April 17, 1985 stressing that the full pardon bestowed
on her has wiped out the crime which implies
_______________
1Rollo at 14-15.
194
194 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
that her service in the government has never been interrupted and
therefore the date of her reinstatement should correspond to the date
of her preventive suspension which is August 1, 1982; that she is
entitled to backpay for the entire period of her suspension; and that
she should not be required to pay the proportionate share of the
amount of P4,892.50.2
The Ministry of Finance, however, referred petitioner’s letter to the
Office of the President for further review and action. On April 15, 1986,
said Office, through Deputy Executive Secretary Fulgenio
S. Factoran, Jr. held:
“We disagree with both the Ministry of Finance and the petitioner
because, as borne out by the records, petitioner was convicted of the
crime for which she was accused. In line with the government’s
crusade to restore absolute honesty in public service, this Office
adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the
Resolution of the Sandiganbayan, 2nd Division, in People v.
Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not
absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of his
salaries, benefits and emoluments due to him during the period of his
suspension pendente lite.
“In fact, in such a situation, the former public official must secure a
reappointment before he can reassume his former position. xxx.
“Anent the civil liability of Monsanto, the Revised Penal Code
expressly provides that ‘a pardon shall in no case exempt the culprit
ADMELEC Cases
38
from payment of the civil indemnity imposed upon him by the
sentence.’ (Sec. 36, par. 2).
“IN VIEW OF THE FOREGOING, this Office holds that Salvacion
A. Monsanto is not entitled to an automatic reinstatement on the
basis of the absolute pardon granted her but must secure an
appointment to her former position and that, notwithstanding said
absolute pardon, she is liable for the civil liability concomitant to her
previous conviction.”3
Her subsequent motion for reconsideration having been denied,
petitioner filed the present petition in her behalf. We gave due course
on October 13, 1987.
_______________
2Rollo at 18-19.
3Rollo at 21-22.
195
VOL. 170, FEBRUARY 9, 1989 195
Monsanto vs. Factoran, Jr.
Petitioner’s basic theory is that the general rules on pardon cannot
apply to her case by reason of the fact that she was extended
executive clemency while her conviction was still pending appeal in
this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to
have been terminated or forfeited. In other words, without that final
judgment of conviction, the accessory penalty of forfeiture of office did
not attach and the status of her employment remained “suspended.”
More importantly, when pardon was issued before the final verdict of
guilt, it was an acquittal because there was no offense to speak of. In
effect, the President has declared her not guilty of the crime charged
and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the
complex crime of estafa thru falsification of public documents and
sentenced to imprisonment of four years, two months and one day
of prision correccional as minimum, to ten years and one day
of prision mayor as maximum. The penalty of prision mayor carries
the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage,
enforceable during the term of the principal penalty.5 Temporary

absolute disqualification bars the convict from public office or
employment, such disqualification to last during the term of the
sentence.6 Even if the offender be pardoned, as to the principal
penalty, the accessory penalties remain unless the same have been
expressly remitted by the pardon.7 The penalty of prision
correccional carries, as one of its accessory penalties, suspension
from public office.8
The propositions earlier advanced by petitioner reveal her
inadequate understanding of the nature of pardon and its legal
consequences. This is not totally unexpected considering that the
authorities on the subject have not been wholly consistent particularly
in describing the effects of pardon.
_______________
4 Rollo at 73.
5 Article 42, Revised Penal Code.
6 Article 30, supra.
7 Article 36, supra.
8 Article 43, supra.
196
196 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
The benign mercy of pardon is of British origin, conceived to temper
the gravity of the King’s wrath. But Philippine jurisprudence on the
subject has been largely influenced by American case law.
Pardon is defined as “an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the individual,
on whom it is bestowed, from the punishment the law inflicts for a
crime he has committed. It is the private, though official act of the
executive magistrate, delivered to the individual for whose benefit it is
intended, and not communicated officially to the Court. x x x. A pardon
is a deed, to the validity of which delivery is essential, and delivery is
not complete without acceptance.”8-a
At the time the antecedents of the present case took place, the
pardoning power was governed by the 1973 Constitution as amended
in the April 7, 1981 plebiscite. The pertinent provision reads:
ADMELEC Cases
39
“The President may, except in cases of impeachment, grant reprieves,
commutations and pardons, remit fines and forfeitures, and with the
concurrence of the Batasang Pambansa, grant amnesty.”9
The 1981 amendments had deleted the earlier rule that clemency
could be extended only upon final conviction, implying that clemency
could be given even before conviction. Thus, petitioner’s unconditional
pardon was granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987 Constitution, the
former limitation of final conviction was restored. But be that as it may,
it is our view that in the present case, it is not material when the pardon
was bestowed, whether before or after conviction, for the result would
still be the same. Having accepted the pardon, petitioner is deemed to
have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the char-
_______________
8-aUnited States v. Wilson, 7 Pet. 150, 160-1, cited in Bernas, The
1973 Philippine Constitution, Notes and Cases, Part I, 1974 Ed., p.
355.
9 Article VII, Section 11.
197
VOL. 170, FEBRUARY 9, 1989 197
Monsanto vs. Factoran, Jr.
acter of finality.
Having disposed of that preliminary point, we proceed to discuss
the effects of a full and absolute pardon in relation to the decisive
question of whether or not the plenary pardon had the effect of
removing the disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino,10 we find a reiteration of the stand
consistently adopted by the courts on the various consequences of
pardon: “x x x we adopt the broad view expressed in Cristobal v.
Labrador, G.R. No. 47941, December 7, 1940, that subject to the
limitations imposed by the Constitution, the pardoning power cannot
be restricted or controlled by legislative action; that an absolute
pardon not only blots out the crime committed but removes all
disabilities resulting from the conviction. x x x. (W)e are of the opinion
that the better view in the light of the constitutional grant in this
jurisdiction is not to unnecessarily restrict or impair the power of the

Chief Executive who, after an inquiry into the environmental facts,
should be at liberty to atone the rigidity of the law to the extent of
relieving completely the party x x x concerned from the accessory and
resultant disabilities of criminal conviction.”
The Pelobello v. Palatino and Cristobal v. Labrador cases,11 and
several others12 show the unmistakable application of the doctrinal
case of Ex Parte Garland,13 whose sweeping generalizations to this
day continue to hold sway in our jurisprudence despite the fact that
much of its relevance has been downplayed by later American
decisions.
Consider the following broad statements:
“A pardon reaches both the punishment prescribed for the offense and
the guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed the
offense. If granted before conviction, it prevents any
_______________
10 72 Phil. 441.
11 Supra.
12 In re Lontok, 43 Phil. 293; Pendon v. Diasnes, 91 Phil.
848 and Mijares v. Custorio, 73 Phil. 507.
13 4 Wall. 333, 18 L. Ed. 366.
198
198 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
of the penalties and disabilities, consequent upon conviction, from
attaching; if granted after conviction, it removes the penalties and
disabilities and restores him to all his civil rights; it makes him, as it
were, a new man, and gives him a new credit and capacity.” 14
Such generalities have not been universally accepted, recognized or
approved.15 The modern trend of authorities now rejects the unduly
broad language of the Garland case (reputed to be perhaps the most
extreme statement which has been made on the effects of a pardon).
To our mind, this is the more realistic approach. While a pardon has
generally been regarded as blotting out the existence of guilt so that
in the eye of the law the offender is as innocent as though he never
committed the offense, it does not operate for all purposes. The very
ADMELEC Cases
40
essence of a pardon is forgiveness or remission of guilt. Pardon
implies guilt. It does not erase the fact of the commission of the crime
and the conviction thereof. It does not wash out the moral stain. It
involves forgiveness and not forgetfulness.16
The better considered cases regard full pardon (at least one not
based on the offender’s innocence) as relieving the party from all the
punitive consequences of his criminal act, including the
disqualifications or disabilities based on the finding of guilt. 17 But it
relieves him from nothing more. “To say, however, that the offender is
a ‘new man’, and ‘as innocent as if he had never committed the
offense;’ is to ignore the difference between the crime and the criminal.
A person adjudged guilty of an offense is a convicted criminal, though
pardoned; he may be deserving of punishment, though left
unpunished; and the law may regard him as more dangerous to
society than one never found guilty of crime, though it places no
restraints upon him following his conviction.”18
_______________
14 Ex Parte Garland, supra at 367.
15 67 C. J. S. 576-577.
16 67 C. J. S. 576-577; Page vs. Watson, 192 So. 205, 126 A.L.R.
249, 253.
17 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E.
2d 95.
18 State v. Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.
199
VOL. 170, FEBRUARY 9, 1989 199
Monsanto vs. Factoran, Jr.
A pardon looks to the future. It is not retrospective. 19 It makes no
amends for the past. It affords no relief for what has been suffered by
the offender. It does not impose upon the government any obligation
to make reparation for what has been suffered. “Since the offense has
been established by judicial proceedings, that which has been done
or suffered while they were in force is presumed to have been rightfully
done and justly suffered, and no satisfaction for it can be
required.”20 This would explain why petitioner, though pardoned,
cannot be entitled to receive backpay for lost earnings and benefits.

Petitioner maintains that when she was issued absolute pardon,
the Chief Executive declared her not guilty of the crime for which she
was convicted. In the case of State v. Hazzard,21 we find this strong
observation: “To assume that all or even a major number of pardons
are issued because of innocence of the recipients is not only to indict
our judicial system, but requires us to assume that which we all know
to be untrue. The very act of forgiveness implies the commission of
wrong, and that wrong has been established by the most complete
method known to modern civilization. Pardons may relieve from the
disability of fines and forfeitures attendant upon a conviction, but they
cannot erase the stain of bad character, which has been definitely
fixed.”22
In this ponencia, the Court wishes to stress one vital point: While
we are prepared to concede that pardon may remit all the penal
consequences of a criminal indictment if only to give meaning to the
fiat that a pardon, being a presidential prerogative, should not be
circumscribed by legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and that once he
is absolved, he should be treated as if he were innocent. For whatever
may have been the judicial dicta in the past, we cannot perceive how
pardon can produce such “moral changes” as to equate a pardoned
convict in character and conduct with one who has constantly
_______________
19 Morris v. Hartsfield, 197 S.E. 251.
20 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L. Ed. 550, 554-
555, citing Knote v. United States, 95 U.S. 149.
21 247 p. 957.
22 See also State v. Serfling, 230 P. 847.
200
200 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are
“historical” facts which, despite the public manifestation of mercy and
forgiveness implicit in pardon, “ordinary, prudent men will take into
account in their subsequent dealings with the actor.” 23
ADMELEC Cases
41
Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights.
But unless expressly grounded on the person’s innocence (which is
rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing.24 This must be constantly kept in mind lest we lose track of
the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly-held
opinion that pardon does not ipso facto restore a convicted felon to
public office necessarily relinquished or forfeited by reason of the
conviction25 although such pardon undoubtedly restores his eligibility
for appointment to that office.26
The rationale is plainly evident. Public offices are intended
primarily for the collective protection, safety and benefit of the common
good. They cannot be compromised to favor private interests. To insist
on automatic reinstatement because of a mistaken notion that the
pardon virtually acquitted one from the offense of estafa would be
grossly untenable. A pardon, albeit full and plenary, cannot preclude
the appointing power from refusing appointment to anyone deemed to
be of bad character, a poor moral risk, or who is unsuitable by reason
of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of
_______________
23 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E.
2d 95.
24 Ibid.
25 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L.E. 550; Page v.
Watson, 192 So. 205, 126 ALR, 249; State v. Hazzard, 247 P. 957
and In re Stephenson, 10 So. 2d 1.
26 59 Am. Jur. 2d 40.
201
VOL. 170, FEBRUARY 9, 1989 201
Monsanto vs. Factoran, Jr.
the punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred
to that when her guilt and punishment were expunged by her pardon,

this particular disability was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which was forfeited by
reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be
and should be evaluated and taken into account to determine
ultimately whether she can once again be entrusted with public funds.
Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as assistant city
treasurer, she must reapply and undergo the usual procedure required
for a new appointment.
Finally, petitioner has sought exemption from the payment of the
civil indemnity imposed upon her by the sentence. The Court cannot
oblige her. Civil liability arising from crime is governed by the Revised
Penal Code. It subsists notwithstanding service of sentence, or for any
reason the sentence is not served by pardon, amnesty or commutation
of sentence. Petitioner’s civil liability may only be extinguished by the
same causes recognized in the Civil Code, namely: payment, loss of
the thing due, remission of the debt, merger of the rights of creditor
and debtor, compensation and novation.27
WHEREFORE, the assailed resolution of former Deputy Executive
Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is
AFFIRMED. No costs.
So ordered.
Narvasa, Paras, Gancayco, Bidin, Cortés, Griño-
Aquino, Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., In the result and in the Separate
Opinions of Justices Padilla and Feliciano.
Gutierrez, Jr., J., I join Justice Feliciano in his concurring
opinion.
_______________
27Articles 36, 112-113, Revised Penal Code.
202
202 SUPREME COURT REPORTS
ANNOTATED
Monsanto vs. Factoran, Jr.
ADMELEC Cases
42
Cruz, J., I concur subject to Mr. Justice Feliciano’s
reservation in his separate opinion.
Feliciano, J., Please see separate concurring opinion.
Padilla, J., Please see separate opinion.
Sarmiento, J., I join the separate opinion of Justices Padilla
and Feliciano.
SEPARATE OPINION
PADILLA, J.:
I concur in the result but on grounds different from those relied upon
by the majority opinion.
Petitioner Salvacion A. Monsanto was Assistant Treasurer of
Calbayog City. Together with three (3) other accused, she was
charged before the Sandiganbayan with the complex crime of Estafa
through falsification of public documents. After trial, the accused were
convicted and sentenced to imprisonment of four (4) years, two (2)
months and one (1) day of prision correccional, as minimum, to ten
(10) years and one (1) day of prision correccional, as maximum, and
to pay a fine of P3,500.00. They were also ordered to jointly and
severally indemnify the government in the sum of P4,892.50
representing the balance of the amount defrauded and to pay the
costs proportionately.
Petitioner appealed the judgment of conviction to this Court which
affirmed the same. Petitioner then filed a motion for reconsideration
but while said motion was pending, President Ferdinand E. Marcos
extended to her on 17 December 1984 an absolute pardon which she
accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations
before the City Treasurer of Calbayog, the Ministry of Finance and the
Office of the President, asked that she be allowed to re-assume her
former office, as of 1 August 1982 (the date of her preventive
suspension), that she be paid her back salaries for the entire period of
her suspension, and that she be not required to pay her proportionate
share of the amount of P4,892.50.
Respondent Assistant Executive Secretary denied petitioner’s
request for automatic reinstatement as well as her other claims,
because of which denial, this petition for review on certiorari
203
VOL. 170, FEBRUARY 9, 1989 203

Monsanto vs. Factoran, Jr.
was filed before the Court seeking the setting aside and reversal of
the decision of the respondent Assistant Executive Secretary, on the
main contention that, as a public officer who has been granted an
absolute pardon by the President, she is entitled to reinstatement to
her former position without need of a new appointment, and to the
other reliefs prayed for.
There can be no dispute that the pardon extinguished petitioner’s
criminal liability. At the same time, Art. 36 of the Revised Penal Code
categorically covers the effects of a pardon on the pardoned’s right to
hold office, suffrage and on his civil liability. It states:
“ART. 36. Pardon; its effects.—A pardon shall not work the restoration
of the right to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
“A pardon shall in no case exempt the culprit from the payment of
the civil indemnity imposed upon him by the sentence.” (Italics
supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to
my mind, clear that the pardon extended by the President to the
petitioner did not per se entitle her to again hold public office (including
therefore the office of Assistant Treasurer, Calbayog City) or to
suffrage; nor did such pardon extinguish her civil liability for the
criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that,
while petitioner was granted “an absolute and unconditional pardon
and restored to full civil and political rights”, yet, nothing
therein expressly provides that the right to hold public office was
thereby restored to the petitioner. In view of the express exclusion by
Art. 36, R.P.C., of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an
effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law—hopefully to be honored
more in its compliance rather than in its breach—that a “public office
is a public trust.” The restoration of the right to
204
204 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
ADMELEC Cases
43
hold public office to one who has lost such right by reason of conviction
in a criminal case, but subsequently pardoned, cannot be left to
inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. To require this would
not be asking too much.
I am aware that there are broad statement in Cristobal vs.
Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which
may be understood to mean that an absolute pardon, without
qualification, restores full civil rights which have been construed, in
turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a
modification is in order, so that an absolute pardon to work a
restoration of the right to hold public office must expressly so state, in
order to give substance and meaning to the sound provisions of Article
36 of the Revised Penal Code, particularly in the light of our times and
experience.
ACCORDINGLY, I vote to DENY the petition.
FELICIANO, J.: Concurring:
I concur in the result reached in the important and eloquent opinion of
the Chief Justice. I also join in the separate concurring opinion of Mr.
Justice Padilla. At the same time, I would add a few brief statements,
basically for my own clarification. Article 36 of the Revised Penal Code
states:
“Article 36. Pardon; its effects.—A pardon shall not work the
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the
pardon.
A pardon shall in no case exempt the culprit from the payment of
the civil indemnity imposed upon him by the sentence.” (Italic supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated
four (4) times by the Revised Penal Code in its following provisions:
“Article 40. Death—Its accessory penalties.—The death penalty,
when it is not executed by reason of commutation or pardon shall carry
with it that of perpetual absolute disqualification and
205
VOL. 170, FEBRUARY 9, 1989 205

Monsanto vs. Factoran, Jr.
that of civil interdiction during thirty years following the date of
sentence, unless such accessory penalties have been expressly
remitted in the pardon.”
“Article 41. Reclusion perpetua and reclusion temporal.—Their
accessory penalties.—The penalties of reclusion
perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case
may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.”
“Article 42. Prision mayor—Its accessory penalties.—The penalty
of prision mayor shall carry with it that of temporary absolute
disqualification and that of perpetual special disqualification from the
right of suffrage which the offender shall suffer although pardoned as
to the principal penalty, unless the same shall have been expressly
remitted in the pardon.”
“Article 43. Prision correccional—Its accessory penalties.—The
penalty of prision correccional shall carry with it that of suspension
from public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if
the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.” (Italics supplied)
The Chief Justice points out that the penalty imposed upon petitioner
for the complex crime of estafa through falsification of public
documents, included the accessory penalties of temporary absolute
disqualification from public office or employment and perpetual special
disqualification from the right of suffrage. The 17 December 1984
pardon extended to petitioner in the instant case was written on a
standard printed form which states in printed words that it was “an
absolute and unconditional pardon [which] restored [petitioner] to full
civil and political rights.”1 While the right of suffrage and the right to
hold public office or employment are commonly regarded as “political
rights,”2 it must be noted that there are other “political rights”3 and that
the pardon given to petitioner did not
_______________
ADMELEC Cases
44
1 Rollo, p. 90.
2 Vera v. Avelino, 77 Phil. 192 (1946).
3 Malcolm and Laurel, The Constitutional Law of the Philippines, p.
378 (1936).
206
206 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
expressly and in printer’s ink restore to petitioner the particular right to
hold public office and the specific right to vote at elections and
plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the
nature of a public office as a public trust, Articles 36 and 40-43
appropriately require a very high degree of explicitness if a pardon is
to work the restoration of such right to petitioner. Exactly the same
point may, of course, be made in respect of the restoration of the right
to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above,
have been in our statute books since 1930. I believe that they have
been left intact by the constitutional provisions on pardon, whether one
refers to the 1935 Constitution or to the 1973 and 1987 Constitutions.
I do not believe that Articles 36, et al. collided with any provision or
principle embodied in either of our prior constitutions. The Chief
Justice appears to agree with this position when he referred to Article
36 of the Revised Penal Code (Opinion, p. 5). He goes on, however,
to say (in page 13) that: “the pardon granted to petitioner has resulted
in removing her disqualification from holding public employment but it
cannot go beyond that.”
It is submitted, with respect, that Articles 36, et al. of the Revised
Penal Code have not been shown to be an unconstitutional restriction
on the pardoning power of the President. The limitation on the
President’s pardoning power, if limitation it be, does not appear to be
an unreasonably onerous one. Articles 36, et al. merely require the
President to become completely explicit if the pardon he extends is
intended to wipe out not merely the principal but also the accessory
penalty of disqualification from holding public office and from voting
and to restore the recipient of the pardon to the exercise of such
fundamental political rights. Such requirement of explicitness seems
entirely in line with the fundamental point made by the Chief Justice
that a pardon does not blot out the factual guilt of the recipient of the
pardon. In other words, the mere grant of a pardon to a public officer

or employee who has been unfaithful to the public trust and sentenced
to disqualification from voting and from holding such office,
does not create the presumption that the recipient of the pardon has
thereby suddenly become morally eligible once more to exercise the
right to vote
207
VOL. 170, FEBRUARY 9, 1989 207
Phil. National Construction Corp. vs. NLRC
and to hold public office.
In my view, the pardon extended to petitioner was ineffective to
restore to her the right to hold public office and on this ground, I vote
to DENY the Petition for Review and to AFFIRM the assailed
Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.
Resolution affirmed.
G.R. No. 83896. Frbeuary 22, 1991.*
CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE
SECRETARY, respondent.
G.R. No. 83815. February 22, 1991.*
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T.
REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of
Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture;
LOURDES QUISUMBING, as Secretary of Education, Culture and
Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment
and Natural Resources; VICENTE V. JAYME, as Secretary of
Finance; SEDFREY ORDONEZ, as Secretary of Justice; FRANKLIN
N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS,
as Secretary of Local Government; FIDEL V. RAMOS, as Secretary
ADMELEC Cases
45
of National Defense; TEODORO F. BENIGNO, as Press Secretary;
JUANITO FERRER, as Secretary of Public Works and Highways;
ANTONIO ARRIZABAL, as Secretary of Science and Technology;
JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as
Secretary of Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD,
as Head of the National Economic Development Authority,
respondents.
Constitutional Law; Statutory Construction; Executive Order No.
284; 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 formed.—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
_______________
* EN BANC.
318
318 SUPREME COURT REPORTS
ANNOTATED
Civil Liberties Union vs. Executive Secretary
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.
Same; Same; Same; Same; The intent of the framers of the
Constitution was to impose a stricter prohibition on the President and
his official family in so far as holding other offices or employment in

the government or elsewhere is concerned.—Evidently, from this
move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was
to impose a stricter prohibition on the President and his official family
in so far as holding other offices or employment in the government or
elsewhere is concerned.
Same; Same; Same; Same; Such intent is underscored by a
comparison of Section 13, Article VII when other provisions of the
Constitution on the disqualifications of certain public officials or
employees from holding other offices or employment.—Moreover,
such intent is underscored by a comparison of Section 13, Article VII
with other provisions of the Constitution on the disqualifications of
certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, “(N)o Senator or Member
of the House of Representatives may hold any other office or
employment in the Government . . .”. Under Section 5(4), Article XVI,
“(N)o member of the armed forces in the active service shall, at any
time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations
or any of their subsidiaries.” Even Section 7 (2), Article IX-B, relied
upon by respondents provides “(U)nless otherwise allowed by law or
by the primary functions of his position, no appointive official shall hold
any other office or employment in the Government.”
Same; Same; Same; Same; The prohibition imposed on the
President and his official family is therefore all-embracing and covers
both public and private office or employment.—It is quite notable that
in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or
their subsidiaries. In striking contrast is the wording of Section 13,
Article VII which states that “(T)he President, Vice-President, the
Members
319
VOL. 194, FEBRUARY 22, 1991 319
Civil Liberties Union vs. Executive Secretary
of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure.” In the latter provision, the
disqualification is absolute, not being qualified by the phrase “in the
ADMELEC Cases
46
Government.” The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and
private office or employment.
Same; Same; Same; Same; Same; The all-embracing
prohibition imposed on the President and his official family are proof
of the intent of the 1987 Constitution to treat them as a class by itself
and to impose upon said class stricter prohibitions.—Going further into
Section 13, Article VII, the second sentence provides: “They shall not,
during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries.” These sweeping, all-embracing prohibitions imposed on
the President and his official family, which prohibitions are not similarly
imposed on other public officials or employees such as the Members
of Congress, members of the civil service in general and members of
the armed forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Same; Same; Same; Same; While all other appointive officials in
the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by
the Constitution itself.—Thus, while all other appointive officials in the
civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article IX-B is meant
to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
Same; Same; Same; Same; Executive Order No. 284 is
unconstitutional as it allows Cabinet members, undersecretaries or
assistant
320

320 SUPREME COURT REPORTS
ANNOTATED
Civil Liberties Union vs. Executive Secretary
secretaries to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so.—In the light of the
construction given to Section 13, Article VII in relation to Section 7,
par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284
dated July 23, 1987 is unconstitutional. Ostensibly restricting the
number of positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their primary position to
not more than two (2) positions in the government and government
corporations, Executive Order No. 284 actually allows them to hold
multiple offices or employment in direct contravention of the express
mandate of Section 13, Article VII of the 1987 Constitution prohibiting
them from doing so, unless otherwise provided in the 1987
Constitution itself.
Same; Same; Same; Same; Same; De facto officers; During
their tenure in the questioned position, respondents may be
considered de facto officers and as such entitled to emoluments for
actual services rendered.—During their tenure in the questioned
positions, respondents may be considered de facto officers and as
such entitled to emoluments for actual services rendered. It has been
held that “in cases where there is no de jure, officer, a de facto officer,
who, in good faith has had possession of the office and has discharged
the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees
and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust
that the public should benefit by the services of an officer de facto and
then be freed from all liability to pay any one for such services. Any
per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
PETITIONS to review the order of the Executive Secretary.
The facts are stated in the opinion of the Court.
ADMELEC Cases
47
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R.
Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:
These two (2) petitions were consolidated per resolution dated
321
VOL. 194, FEBRUARY 22, 1991 321
Civil Liberties Union vs. Executive Secretary
August 9, 19881 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No. 284
issued by President Corazon C. Aquino on July 25, 1987. The
pertinent provisions of the assailed Executive Order are:
“SECTION 1. Even if allowed by law or by the ordinary functions of his
position, a member of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the Executive Department
may, in addition to his primary position, hold not more than two
positions in the government and government corporations and receive
the corresponding compensation therefor; Provided, that this limitation
shall not apply to ad hoc bodies or committees, or to boards, councils
or bodies of which the President is the Chairman.
“SECTION 2. If a member of the cabinet, undersecretary or
assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the
subordinate official who is next in rank, but in no case shall any official
hold more than two positions other than bis primary position.
“SECTION 3. In order to fully protect the interest of the government
in government-owned or controlled corporations, at least one-third
(1/3) of the members of the boards of such corporation should either
be a secretary, or undersecretary, or assistant secretary.”
Petitioners maintain that this Executive Order which, in effect, allows
members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to
their primary positions, albeit subject to the limitation therein imposed,
runs counter to Section 13, Article VII of the 1987 Constitution,2 which
provides as follows:

“Sec. 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided
in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or in-
_______________
1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No.
83896.
2 Italics supplied.
322
322 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
strumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.”
It is alleged that the above-quoted Section 13, Article VII prohibits
public respondents, as members of the Cabinet, along with the other
public officials enumerated in the list attached to the petitions as
Annex “C” in G.R. No. 83815 3 and as Annex “B” in G.R. No.
83896 4 from holding any other office or employment during their
tenure. In addition to seeking a declaration of the unconstitutionality of
Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents therein to
cease and desist from holding, in addition to their primary positions,
dual or multiple positions other than those authorized by the 1987
Constitution and from receiving any salaries, allowances, per diems
and other forms of privileges and the like appurtenant to their
questioned positions, and compelling public respondents to return,
reimburse or refund any and all amounts or benefits that they may
have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted “absolute and self-
executing” provision of the 1987 Constitution, then Secretary of
ADMELEC Cases
48
Justice Sedfrey Ordonez, construing Section 13, Article VII in relation
to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion
No. 73, series of 1987,5 declaring that Cabinet members, their
deputies (undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of government
corporations: (a) when directly provided for in the Constitution as in
the case of the Secretary of Justice who is made an ex-officio member
of the Judicial and Bar Council under Section 8, paragraph 1, Article
VIII; or (b) if allowed by law; or (c) if allowed by the primary functions
of their respective positions; and that on the basis of
_______________
3 pp. 29-30, Rollo.
4 pp. 10-21, Rollo.
5 Annex “A”, Petition, G.R. No. 83815, pp. 21-24, Rollo.
323
VOL. 194, FEBRUARY 22, 1991 323
Civil Liberties Union vs. Executive Secretary
this Opinion, the President of the Philippines, on July 25, 1987, or two
(2) days before Congress convened on July 27, 1987, promulgated
Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ
Opinion No. 73 and Executive Order No. 284 as they allegedly
“lumped together” Section 13, Article VII and the general provision in
another article, Section 7, par. (2), Article IX-B. This “strained linkage”
between the two provisions, each addressed to a distinct and separate
group of public officers—one, the President and her official family, and
the other, public servants in general—allegedly “abolished the clearly
separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the President, the
Vice-President, the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to lead by
example,”7 Article IX-B, Section 7, par. (2)8 provides:
“Sec. 7. xxx xxx xxx
“Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.”

The Solicitor General counters that Department of Justice (DOJ)
Opinion No. 73, series of 1987, as further elucidated and clarified by
DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155,
series of 1988,10 being the first official con-
_______________
6 Thereby, petitioner alleges, eliciting adverse published
commentaries from CONCOM Commissioners Fr. Joaquin G. Bernas,
S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of
Isabela, and retired Supreme Court Justice Felix Q. Antonio, Annexes
“D”, “E” and “F”, Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM
Vice-President Ambrosio B. Padilla, in a published article cited in the
annexes, also commented on EO 284.
7 p. 11, Rollo in G.R. No. 83815.
8 Italics supplied.
9 Annex “I”, Comment, G.R. No. 83896, pp. 62-67, Rollo.
10 Annex “2”, Ibid., pp. 68-71, Rollo.
324
324 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
struction and interpretation by the Secretary of Justice of Section 13,
Article VII and par. (2) of Section 7, Article IX-B of the Constitution,
involving the same subject of appointments or designations of an
appointive executive official to positions other than his primary
position, is “reasonably valid and constitutionally firm,” and that
Executive Order No. 284, promulgated pursuant to DOJ Opinion No.
73, series of 1987 is consequently constitutional. It is worth noting that
DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series
of 1988 construed the limitation imposed by E.O. No. 284 as not
applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are
not related to or necessarily included in the position of the public
official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being
challenged by petitioners on the principal submission that it adds
exceptions to Section 13, Article VII other than those provided in the
(Constitution. According to petitioners, by virtue of the phrase “unless
otherwise provided in this Constitution,” the only exceptions against
ADMELEC Cases
49
holding any other office or employment in Government are those
provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article
VII thereof; and (2) the Secretary of Justice is an ex-officio member of
the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in
Section 7, par. (2), Article IX-B on the Civil Service Commission
applies to officers and employees of the Civil Service in general and
that said exceptions do not apply and cannot be extended to Section
13, Article VII which applies specifically to the President, Vice-
President, Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-
President, the members of the Cabinet and their deputies or assistants
from holding dual or multiple positions in the Government admits of
certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception.
Petitioners insist that
325
VOL. 194, FEBRUARY 22, 1991 325
Civil Liberties Union vs. Executive Secretary
because of the phrase “unless otherwise provided in this Constitution”
used in Section 13 of Article VII, the exception must be expressly
provided in the Constitution, as in the case of the Vice-President being
allowed to become a Member of the Cabinet under the second
paragraph of Section 3, Article VII or the Secretary of Justice being
designated an ex-officio member of the Judicial and Bar Council under
Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain
that the phrase “unless otherwise provided in the Constitution” in
Section 13, Article VII makes reference to Section 7, par. (2), Article
IX-B insofar as the appointive officials mentioned therein are
concerned.
The threshold question therefore is: does the prohibition in Section
13, Article VII of the 1987 Constitution insofar as Cabinet members,
their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7,
par. (2), Article IX-B which, for easy reference is quoted anew, thus:
“Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or

instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries.”
We rule in the negative.
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.11
_______________
11 Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448,44 L. Ed. 597.
326
326 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
The practice of designating members of the Cabinet, their deputies
and assistants as members of the governing bodies or boards of
various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent
during the time legislative powers in this country were exercised by
former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations
created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other
perquisites of office. Most of these instrumentalities have remained up
to the present time.
This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public officials who
took advantage of this scheme for purposes of self-enrichment. In fact,
the holding of multiple offices in government was strongly denounced
ADMELEC Cases
50
on the floor of the Batasang Pambansa.12 This condemnation came in
reaction to the published report of the Commission on Audit, entitled
“1983 Summary Annual Audit Report on: Government-owned and
Controlled Corporations, Self-Governing Boards and Commissions”
which carried as its Figure No. 4 a “Roaster of Membership in
Governing Boards of Government-owned and Controlled
Corporations as ofDecember 31, 1983.”
Particularly odious and revolting to the people’s sense of propriety
and morality in government service were the data contained therein
that Roberto V. Ongpin was a member of the governing boards of
twenty-nine (29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata
of twenty-two (22); Arturo R. Taneo, Jr. of fifteen (15); Jesus S.
Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of
twelve (12) each;
_______________
12R.B. No. 95, Monday, March 11, 1985, Record of the Batasan,
Volume IV, pp. 835-836.
327
VOL. 194, FEBRUARY 22, 1991 327
Civil Liberties Union vs. Executive Secretary
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of
eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10)
each.13
The blatant betrayal of public trust evolved into one of the serious
causes of discontent with the Marcos regime. It was therefore quite
inevitable and in consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission, convened as it was
after the people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions under
consideration which are envisioned to remedy, if not correct, the evils
that flow from the holding of multiple governmental offices and
employment. In fact, as keenly observed by Mr. Justice Isagani A.
Cruz during the deliberations in these cases, one of the strongest
selling points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in

the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7,
Article IX-B already contains a blanket prohibition against the holding
of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission
should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different phraseologies
of the constitutional provisions in question, the intent of the framers of
the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment
in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section
13, Article VII with other provisions of the Constitution on the
disqualifications of certain public officials or employees
_______________
13 pp. 11-14.
328
328 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
from holding other offices or employment. Under Section 13, Article
VI, “(N)o Senator or Member of the House of Representatives may
hold any other office or employment in the Government . . .”. Under
Section 5(4), Article XVI, “(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a
civilian position in the Government, including government-owned or
controlled corporations or any of their subsidiaries.” Even Section 7
(2), Article IX-B, relied upon by respondents provides “(U)nless
otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the
Government.”
It is quite notable that in all these provisions on disqualifications to
hold other office or employment, the prohibition pertains to an office
or employment in the government and government-owned or
ADMELEC Cases
51
controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that “(T)he President,
Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.” In the latter
provision, the disqualification is absolute, not being qualified by the
phrase “in the Government.” The prohibition imposed on the President
and his official family is therefore all-embracing and covers both public
and private office or employment.
Going further into Section 13, Article VII, the second sentence
provides: “They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.” These sweeping, all-
embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of
the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his
official family as a class by itself and to impose upon said class stricter
prohibitions.
329
VOL. 194, FEBRUARY 22, 1991 329
Civil Liberties Union vs. Executive Secretary
Such intent of the 1986 Constitutional Commission to be stricter with
the President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in
the General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, “We actually have to be
stricter with the President and the members of the Cabinet because
they exercise more powers and, therefore, more checks and restraints
on them are called for because there is more possibility of abuse in
their case.”14
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions

of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase “unless otherwise
provided in this Constitution” in Section 13, Article VII cannot possibly
refer to the broad exceptions provided under Section 7, Article IX-B of
the 1987 Constitution. To construe said qualifying phrase as
respondents would have us do, would render nugatory and
meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government
during their tenure. Respon-dents’ interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-ranking officials of the
Execu-
_______________
14 Record of the 1986 Constitutional Commission, Vol. I, p. 553.
330
330 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
tive Branch from the President to Assistant Secretary, on the one
hand, and the generality of civil servants from the rank immediately
below Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.
Moreover, respondents’ reading of the provisions in question
would render certain parts of the Constitution inoperative. This
observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment
when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible “for
appointment or designation in any capacity to any public office or
position during his tenure.” Surely, to say that the phrase “unless
ADMELEC Cases
52
otherwise provided in this Constitution” found in Section 13, Article VII
has reference to Section 7, par. (1) of Article IX-B would render
meaningless the specific provisions of the Constitution authorizing the
Vice-President to become a member of the Cabinet,15 and to act as
President without relinquishing the Vice-Presidency where the
President shall not have been chosen or fails to qualify. 16 Such absurd
consequence can be avoided only by interpreting the two provisions
under consideration as one, i.e., Section 7, par. (1) of Article IX-B
providing the general rule and the other, i.e., Section 13, Article VII as
constituting the exception thereto. In the same manner must Section
7, par. (2) of Article IX-B be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in constitutional construction that no
one provision of the Constitution is to be separated from all the others,
to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted
as to effectuate the great purposes of the instrument. 17 Sections
bearing on a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the Constitution 18 and
one section is not to be
_______________
15 Sec. 3, Ibid.
16 Sec. 7, Article VII.
17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed
345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241 P. 879.
18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith,
331
VOL. 194, FEBRUARY 22, 1991 331
Civil Liberties Union vs. Executive Secretary
allowed to defeat another, if by any reasonable construction, the two
can be made to stand together.19
In other words, the court must harmonize them, if practicable, and
must lean in favor of a construction which will render every word
operative, rather than one which may make the words idle and
nugatory.20
Since the evident purpose of the framers of the 1987 Constitution
is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their

tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation. 21 The phrase
“unless otherwise provided in this Constitution” must be given a literal
interpretation to refer only to those’ particular instances cited in the
Constitution itself, to wit: the Vice-Presi-dent being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution must not,
however, be construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an ex-
officio capacity as provided by law and as
_______________
308 Ky 73, 212 SW 2d 521.
19 People vs. Wright, 6 Col. 92.
20 Thomas M. Colley, A Treatise on the Constitutional Limitations,
Vol. I, p. 128, citing Attorney-General vs. Detroit and Erin Plank Road
Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs.
Dubuque, 7 Iowa 262.
21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22
Tex. App. 396, 3 S.W. 233.
332
332 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
required22 by the primary functions of said officials’ office. The reason
is that these posts do no comprise “any other office” within the
contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. 23 To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the Philippines
ADMELEC Cases
53
cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-
President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit
in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and
assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board
of Trustees of the National Manpower and Youth Council (NMYC) or
the Philippine Overseas Employment Administration (POEA), both of
which are attached to his department for policy coordination and
guidance. Neither can his Undersecretaries and Assistant Secretaries
chair these agencies. The Secretaries of Finance and Budget cannot
sit in the Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking employees in
providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended
such absurd consequences. A Constitution, viewed as a continuously
operative charter of government, is not to be interpreted as demanding
the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should
_______________
22 As opposed to the term “allowed” used in Section 7, par. (2),
Article IX-B of the Constitution, which is permissive. “Required”
suggests an imposition, and therefore, obligatory in nature.
23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Green-
ville Sewer District, 173 A.L.R. 407.
24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117.
25 Sec. 20, Art. XII, 1987 Constitution.
333
VOL. 194, FEBRUARY 22, 1991 333
Civil Liberties Union vs. Executive Secretary
be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to
be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as
required by the primary functions of the concerned official’s office. The

term ex-officio means “from office; by virtue of office.” It refers to an
“authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the
official position.” Ex-officio likewise denotes an “act done in an official
character, or as a consequence of office, and without any other
appointment or authority than that conferred by the office.” 27 An ex-
officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment.28 To
illustrate, by express provision of law, the Secretary of Transportation
and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-
officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board,31 thus: “An examination of section 2 of the
questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the
respective department heads. With the exception of the representative
from the private sector, they sit ex-officio. In order to be designated
they must already be holding positions in the offices mentioned in the
law. Thus, for instance, one who does not hold a previous appointment
in the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect to the
represen-
_______________
26 Hirabayashi vs. United States, 320 U.S. 81, 87 L.Ed. 1774, 63
S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of Wage and Hour
Div., 312 U.S. 126,85 L. Ed. 624,61 S. Ct. 524; Gage vs. Jordan, 23
Cal 2d 794, 174 P 2d, 287 cited in 16 Am Jur 2d, pp. 100, 464.
27 Black’s Law Dictionary, p. 516; 15A Words and Phrases, p. 392.
28 15A Words and Phrases, p. 392.
29 Sec. 7, E.O. 778.
30 Sec. 1, E.O. 210.
31 21 SCRA 336 (1967).
334
334 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
tatives from the order offices. No new appointments are neces sary.
This is as it should be, because the representatives so
ADMELEC Cases
54
designated merely perform duties in the Board in addition to those
already performed under their original appointments.”32
The term “primary” used to describe “functions” refers to the order
of importance and thus means chief or principal function. The term is
not restricted to the singular but may refer to the plural. 33 The
additional duties must not only be closely related to, but must be
required by the official’s primary functions. Examples of designations
to positions by virtue of one’s primary functions are the Secretaries of
Finance and Budget sitting as members of the Monetary Board, and
the Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority34 and the Civil
Aeronautics Board. If the functions required to be performed are
merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such
additional functions would fall under the purview of “any other office”
prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions
and/or monetary compensation, such as but not limited to
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-
President, Cabinet Members, their deputies or assistants which are
not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill
in their respective executive offices is a practice long-recognized in
many jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination among the
different offices in the Execu-
_______________
32 Italics supplied.
33 33A Words and Phrases, p. 210, citing Collector of Revenue vs.
Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145.
34 Sec. 7, P.D. No. 474.
335
VOL. 194, FEBRUARY 22, 1991 335
Civil Liberties Union vs. Executive Secretary

tive Branch in the discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power
vested on the President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus and offices and
to ensure that the laws are faithfully executed.35 Without these
additional duties and functions being assigned to the President and
his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as
provided by law and as required by their primary functions, they would
be deprived of the means for control and supervision, thereby resulting
in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties
or functions may not transgress the prohibition embodied in Section
13, Article VII of the 1987 Constitution, such additional duties or
functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as
provided by law, without receiving any additional compensation
therefor.
The ex-officio position being actually and in legal contemplation
part of the principal office, it follows that the official concerned has no
right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. It should
be obvious that if, say, the Secretary of Finance attends a meeting of
the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters,
which come under the jurisdiction of his department. For such
attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per diem or an
honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is
prohibited by the Constitution.
It is interesting to note that during the floor deliberations on
_______________
35 Section 17, Article VII.
336
ADMELEC Cases
55
336 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
the proposal of Commissioner Christian Monsod to add to Section 7,
par. (2), Article IX-B, originally found as Section 3 of the General
Provisions, the exception “unless required by the functions of his
position,”36 express reference to certain high-ranking appointive public
officials like members of the Cabinet were made.37 Responding to a
query of Commissioner Bias Ople, Commissioner Monsod pointed out
that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices
and corporations is necessary by reason of said officials’ primary
functions. The example given by Commissioner Monsod was the
Minister of Trade and Industry.38
While this exchange between Commissioners Monsod and Ople
may be used as authority for saying that additional functions and
duties flowing from the primary functions of the official may be
imposed upon him without offending the constitutional prohibition;
under consideration, it cannot, however, be taken as authority for
saying that this exception is by virtue of Section 7, par. (2) of Article
IX-B. This colloquy between the two Commissioners took place in the
plenary session of September 27,1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the proposed
article on General Provisions.39 At that time, the article on the Civil
Service Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department, containing the
more specific prohibition in Section 13, had also been earlier approved
on third reading on August 26, 1986.41 It was only after the draft
Constitution had undergone reformatting and “styling” by the
Committee on Style that said Section 3 of the General Provisions
became Section 7, par. (2) of Article IX-B
_______________
36 The phrase that appears in the Constitution is not “Unless
required by the primary functions” but “Unless otherwise allowed by
law or by the primary functions . . .”
37 Record of the 1986 Constitutional Commission, Vol. V, pp 165-
166.
38 Italics supplied, Ibid., p. 165.
39 Ibid., Vol. V., pp. 80-81.
40 Ibid., Vol. II, p. 94.

41 Ibid., Vol. III, p. 710.
337
VOL. 194, FEBRUARY 22, 1991 337
Civil Liberties Union vs. Executive Secretary
and reworded “Unless otherwise allowed by law or by the primary
functions of his position. . .”
What was clearly being discussed then were general principles
which would serve as constitutional guidelines in the absence of
specific constitutional provisions on the matter. What was primarily at
issue and approved on that occasion was the adoption of the qualified
and delimited phrase “primary functions” as the basis of an exception
to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in
said Section 13 of Article VII, it could have re-worded said Section 13
to conform to the wider exceptions provided in then Section 3 of the
proposed general Provisions, later placed as Section 7, par. (2) of
Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the
President and his official family is by reason of the legal principles
governing additional functions and duties of public officials rather than
by virtue of Section 7, par. 2, Article IX-B. At any rate, we have made
it clear that only the additional functions and duties “required,” as
opposed to “allowed,” by the primary functions may be considered as
not constituting “any other office.”
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention “are of value as
showing the views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from
what appears upon its face.”43 The proper interpretation therefore
depends more on how it was understood by the people
_______________
ADMELEC Cases
56
42 16 Corpus Juris Secundum, 2. 31, p. 105.
43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.
338
338 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union us. Executive Secretary
adopting it than in the framers’s understanding thereof.44
It being clear, as it was in fact one of its best selling points, that the
1987 Constitution seeks to prohibit the President, Vice-President,
members of the Cabinet, their deputies or assistants from holding
during their tenure multiple offices or employment in the government,
except in those cases specified in the Constitution itself and as above
clarified with respect to posts held without additional compensation in
an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then
called Minis-ters) as examples during the debate and deliberation on
the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the
constitution’s manifest intent and the people’ understanding thereof.
In the light of the construction given to Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B of the 1987 Constitution,
Executive Order No. 284 dated July 23, 1987 is unconstitutional.
Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant sec-retaries may hold in addition to their
primary position to not more than two (2) positions in the government
and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical
consequences that will result from a strict application of the prohibition
mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of
their offices held in an ex-officio capacity, by reason of their primary
positions or by virtue of legislation. As earlier clarified in this
decision, ex-officio posts held by the executive official concerned
without additional compensation as provided by law and as required
by the primary functions of
_______________

44Household Finance Corporation vs. Shaffner, 203, S.W 2d 734
356 Mo. 808.
339
VOL. 194, FEBRUARY 22, 1991 339
Civil Liberties Union vs. Executive Secretary
his office do not fall under the definition of “any other office” within the
contemplation of the constitutional prohibition. With respect to other
offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared
impractical consequences are more apparent than real. Being head of
an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head’s ability
and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility,
which may result in haphaz-ardness and inefficiency. Surely the
advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking
in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the
court hereby orders respondents Secretary of Environment and
Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government45 Luis Santos, Secretary of National Defense Fidel V.
Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of
the Budget Guillermo Carague to immediately relinquish their other
offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have
become moot and aca-demic as they are no longer occupying the
positions complained of.
During their tenure in the questioned positions, respondents may
be considered de facto officers and as such entitled to emoluments for
actual services rendered.46 It has been held
_______________
ADMELEC Cases
57
45
Now Department of Interior and Local Governments.
46
Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61
SCRA 55.
340
340 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
that “in cases where there is no de jure, officer, a de facto officer, who,
in good faith has had possession of the office and has discharged the
duties pertaining thereto, is legally entitled to the emoluments of the
office, and may in an appropriate action recover the salary, fees and
other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust
that the public should benefit by the services of an officer de facto and
then be freed from all liability to pay any one for such services. 47 Any
per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the
petitions are GRANTED. Executive Order No. 284 is hereby declared
null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez,
Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado a
nd Davide, Jr., JJ., concur.
Paras, J., I concur because cabinet members like the
members of the Supreme Court are not supermen.
Sarmiento and Griño-Aquino, JJ., No part.
Petitions granted.
G.R. No. 83896. Frbeuary 22, 1991.*
CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE
SECRETARY, respondent.
G.R. No. 83815. February 22, 1991.*
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T.
REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of
Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture;

LOURDES QUISUMBING, as Secretary of Education, Culture and
Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment
and Natural Resources; VICENTE V. JAYME, as Secretary of
Finance; SEDFREY ORDONEZ, as Secretary of Justice; FRANKLIN
N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS,
as Secretary of Local Government; FIDEL V. RAMOS, as Secretary
of National Defense; TEODORO F. BENIGNO, as Press Secretary;
JUANITO FERRER, as Secretary of Public Works and Highways;
ANTONIO ARRIZABAL, as Secretary of Science and Technology;
JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as
Secretary of Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD,
as Head of the National Economic Development Authority,
respondents.
Constitutional Law; Statutory Construction; Executive Order No.
284; 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 formed.—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
_______________
* EN BANC.
318
318 SUPREME COURT REPORTS
ANNOTATED
Civil Liberties Union vs. Executive Secretary
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
ADMELEC Cases
58
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.
Same; Same; Same; Same; The intent of the framers of the
Constitution was to impose a stricter prohibition on the President and
his official family in so far as holding other offices or employment in
the government or elsewhere is concerned.—Evidently, from this
move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was
to impose a stricter prohibition on the President and his official family
in so far as holding other offices or employment in the government or
elsewhere is concerned.
Same; Same; Same; Same; Such intent is underscored by a
comparison of Section 13, Article VII when other provisions of the
Constitution on the disqualifications of certain public officials or
employees from holding other offices or employment.—Moreover,
such intent is underscored by a comparison of Section 13, Article VII
with other provisions of the Constitution on the disqualifications of
certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, “(N)o Senator or Member
of the House of Representatives may hold any other office or
employment in the Government . . .”. Under Section 5(4), Article XVI,
“(N)o member of the armed forces in the active service shall, at any
time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations
or any of their subsidiaries.” Even Section 7 (2), Article IX-B, relied
upon by respondents provides “(U)nless otherwise allowed by law or
by the primary functions of his position, no appointive official shall hold
any other office or employment in the Government.”
Same; Same; Same; Same; The prohibition imposed on the
President and his official family is therefore all-embracing and covers
both public and private office or employment.—It is quite notable that
in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or
their subsidiaries. In striking contrast is the wording of Section 13,
Article VII which states that “(T)he President, Vice-President, the
Members
319

VOL. 194, FEBRUARY 22, 1991 319
Civil Liberties Union vs. Executive Secretary
of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure.” In the latter provision, the
disqualification is absolute, not being qualified by the phrase “in the
Government.” The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and
private office or employment.
Same; Same; Same; Same; Same; The all-embracing
prohibition imposed on the President and his official family are proof
of the intent of the 1987 Constitution to treat them as a class by itself
and to impose upon said class stricter prohibitions.—Going further into
Section 13, Article VII, the second sentence provides: “They shall not,
during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries.” These sweeping, all-embracing prohibitions imposed on
the President and his official family, which prohibitions are not similarly
imposed on other public officials or employees such as the Members
of Congress, members of the civil service in general and members of
the armed forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Same; Same; Same; Same; While all other appointive officials in
the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by
the Constitution itself.—Thus, while all other appointive officials in the
civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article IX-B is meant
to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant
ADMELEC Cases
59
to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
Same; Same; Same; Same; Executive Order No. 284 is
unconstitutional as it allows Cabinet members, undersecretaries or
assistant
320
320 SUPREME COURT REPORTS
ANNOTATED
Civil Liberties Union vs. Executive Secretary
secretaries to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so.—In the light of the
construction given to Section 13, Article VII in relation to Section 7,
par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284
dated July 23, 1987 is unconstitutional. Ostensibly restricting the
number of positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their primary position to
not more than two (2) positions in the government and government
corporations, Executive Order No. 284 actually allows them to hold
multiple offices or employment in direct contravention of the express
mandate of Section 13, Article VII of the 1987 Constitution prohibiting
them from doing so, unless otherwise provided in the 1987
Constitution itself.
Same; Same; Same; Same; Same; De facto officers; During
their tenure in the questioned position, respondents may be
considered de facto officers and as such entitled to emoluments for
actual services rendered.—During their tenure in the questioned
positions, respondents may be considered de facto officers and as
such entitled to emoluments for actual services rendered. It has been
held that “in cases where there is no de jure, officer, a de facto officer,
who, in good faith has had possession of the office and has discharged
the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees
and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust
that the public should benefit by the services of an officer de facto and
then be freed from all liability to pay any one for such services. Any
per diem, allowances or other emoluments received by the

respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
PETITIONS to review the order of the Executive Secretary.
The facts are stated in the opinion of the Court.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R.
Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:
These two (2) petitions were consolidated per resolution dated
321
VOL. 194, FEBRUARY 22, 1991 321
Civil Liberties Union vs. Executive Secretary
August 9, 19881 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No. 284
issued by President Corazon C. Aquino on July 25, 1987. The
pertinent provisions of the assailed Executive Order are:
“SECTION 1. Even if allowed by law or by the ordinary functions of his
position, a member of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the Executive Department
may, in addition to his primary position, hold not more than two
positions in the government and government corporations and receive
the corresponding compensation therefor; Provided, that this limitation
shall not apply to ad hoc bodies or committees, or to boards, councils
or bodies of which the President is the Chairman.
“SECTION 2. If a member of the cabinet, undersecretary or
assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the
subordinate official who is next in rank, but in no case shall any official
hold more than two positions other than bis primary position.
“SECTION 3. In order to fully protect the interest of the government
in government-owned or controlled corporations, at least one-third
(1/3) of the members of the boards of such corporation should either
be a secretary, or undersecretary, or assistant secretary.”
ADMELEC Cases
60
Petitioners maintain that this Executive Order which, in effect, allows
members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to
their primary positions, albeit subject to the limitation therein imposed,
runs counter to Section 13, Article VII of the 1987 Constitution,2 which
provides as follows:
“Sec. 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided
in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or in-
_______________
1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No.
83896.
2 Italics supplied.
322
322 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
strumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.”
It is alleged that the above-quoted Section 13, Article VII prohibits
public respondents, as members of the Cabinet, along with the other
public officials enumerated in the list attached to the petitions as
Annex “C” in G.R. No. 83815 3 and as Annex “B” in G.R. No.
83896 4 from holding any other office or employment during their
tenure. In addition to seeking a declaration of the unconstitutionality of
Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents therein to
cease and desist from holding, in addition to their primary positions,
dual or multiple positions other than those authorized by the 1987
Constitution and from receiving any salaries, allowances, per diems
and other forms of privileges and the like appurtenant to their

questioned positions, and compelling public respondents to return,
reimburse or refund any and all amounts or benefits that they may
have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted “absolute and self-
executing” provision of the 1987 Constitution, then Secretary of
Justice Sedfrey Ordonez, construing Section 13, Article VII in relation
to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion
No. 73, series of 1987,5 declaring that Cabinet members, their
deputies (undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of government
corporations: (a) when directly provided for in the Constitution as in
the case of the Secretary of Justice who is made an ex-officio member
of the Judicial and Bar Council under Section 8, paragraph 1, Article
VIII; or (b) if allowed by law; or (c) if allowed by the primary functions
of their respective positions; and that on the basis of
_______________
3 pp. 29-30, Rollo.
4 pp. 10-21, Rollo.
5 Annex “A”, Petition, G.R. No. 83815, pp. 21-24, Rollo.
323
VOL. 194, FEBRUARY 22, 1991 323
Civil Liberties Union vs. Executive Secretary
this Opinion, the President of the Philippines, on July 25, 1987, or two
(2) days before Congress convened on July 27, 1987, promulgated
Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ
Opinion No. 73 and Executive Order No. 284 as they allegedly
“lumped together” Section 13, Article VII and the general provision in
another article, Section 7, par. (2), Article IX-B. This “strained linkage”
between the two provisions, each addressed to a distinct and separate
group of public officers—one, the President and her official family, and
the other, public servants in general—allegedly “abolished the clearly
separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the President, the
Vice-President, the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to lead by
example,”7 Article IX-B, Section 7, par. (2)8 provides:
ADMELEC Cases
61
“Sec. 7. xxx xxx xxx
“Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.”
The Solicitor General counters that Department of Justice (DOJ)
Opinion No. 73, series of 1987, as further elucidated and clarified by
DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155,
series of 1988,10 being the first official con-
_______________
6 Thereby, petitioner alleges, eliciting adverse published
commentaries from CONCOM Commissioners Fr. Joaquin G. Bernas,
S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of
Isabela, and retired Supreme Court Justice Felix Q. Antonio, Annexes
“D”, “E” and “F”, Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM
Vice-President Ambrosio B. Padilla, in a published article cited in the
annexes, also commented on EO 284.
7 p. 11, Rollo in G.R. No. 83815.
8 Italics supplied.
9 Annex “I”, Comment, G.R. No. 83896, pp. 62-67, Rollo.
10 Annex “2”, Ibid., pp. 68-71, Rollo.
324
324 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
struction and interpretation by the Secretary of Justice of Section 13,
Article VII and par. (2) of Section 7, Article IX-B of the Constitution,
involving the same subject of appointments or designations of an
appointive executive official to positions other than his primary
position, is “reasonably valid and constitutionally firm,” and that
Executive Order No. 284, promulgated pursuant to DOJ Opinion No.
73, series of 1987 is consequently constitutional. It is worth noting that
DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series
of 1988 construed the limitation imposed by E.O. No. 284 as not
applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are

not related to or necessarily included in the position of the public
official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being
challenged by petitioners on the principal submission that it adds
exceptions to Section 13, Article VII other than those provided in the
(Constitution. According to petitioners, by virtue of the phrase “unless
otherwise provided in this Constitution,” the only exceptions against
holding any other office or employment in Government are those
provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article
VII thereof; and (2) the Secretary of Justice is an ex-officio member of
the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in
Section 7, par. (2), Article IX-B on the Civil Service Commission
applies to officers and employees of the Civil Service in general and
that said exceptions do not apply and cannot be extended to Section
13, Article VII which applies specifically to the President, Vice-
President, Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-
President, the members of the Cabinet and their deputies or assistants
from holding dual or multiple positions in the Government admits of
certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception.
Petitioners insist that
325
VOL. 194, FEBRUARY 22, 1991 325
Civil Liberties Union vs. Executive Secretary
because of the phrase “unless otherwise provided in this Constitution”
used in Section 13 of Article VII, the exception must be expressly
provided in the Constitution, as in the case of the Vice-President being
allowed to become a Member of the Cabinet under the second
paragraph of Section 3, Article VII or the Secretary of Justice being
designated an ex-officio member of the Judicial and Bar Council under
Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain
that the phrase “unless otherwise provided in the Constitution” in
Section 13, Article VII makes reference to Section 7, par. (2), Article
IX-B insofar as the appointive officials mentioned therein are
concerned.
The threshold question therefore is: does the prohibition in Section
13, Article VII of the 1987 Constitution insofar as Cabinet members,
ADMELEC Cases
62
their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7,
par. (2), Article IX-B which, for easy reference is quoted anew, thus:
“Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries.”
We rule in the negative.
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.11
_______________
11 Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448,44 L. Ed. 597.
326
326 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
The practice of designating members of the Cabinet, their deputies
and assistants as members of the governing bodies or boards of
various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent
during the time legislative powers in this country were exercised by
former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations
created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other

perquisites of office. Most of these instrumentalities have remained up
to the present time.
This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public officials who
took advantage of this scheme for purposes of self-enrichment. In fact,
the holding of multiple offices in government was strongly denounced
on the floor of the Batasang Pambansa.12 This condemnation came in
reaction to the published report of the Commission on Audit, entitled
“1983 Summary Annual Audit Report on: Government-owned and
Controlled Corporations, Self-Governing Boards and Commissions”
which carried as its Figure No. 4 a “Roaster of Membership in
Governing Boards of Government-owned and Controlled
Corporations as ofDecember 31, 1983.”
Particularly odious and revolting to the people’s sense of propriety
and morality in government service were the data contained therein
that Roberto V. Ongpin was a member of the governing boards of
twenty-nine (29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata
of twenty-two (22); Arturo R. Taneo, Jr. of fifteen (15); Jesus S.
Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of
twelve (12) each;
_______________
12R.B. No. 95, Monday, March 11, 1985, Record of the Batasan,
Volume IV, pp. 835-836.
327
VOL. 194, FEBRUARY 22, 1991 327
Civil Liberties Union vs. Executive Secretary
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of
eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10)
each.13
The blatant betrayal of public trust evolved into one of the serious
causes of discontent with the Marcos regime. It was therefore quite
inevitable and in consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission, convened as it was
after the people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions under
consideration which are envisioned to remedy, if not correct, the evils
ADMELEC Cases
63
that flow from the holding of multiple governmental offices and
employment. In fact, as keenly observed by Mr. Justice Isagani A.
Cruz during the deliberations in these cases, one of the strongest
selling points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in
the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7,
Article IX-B already contains a blanket prohibition against the holding
of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission
should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different phraseologies
of the constitutional provisions in question, the intent of the framers of
the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment
in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section
13, Article VII with other provisions of the Constitution on the
disqualifications of certain public officials or employees
_______________
13 pp. 11-14.
328
328 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
from holding other offices or employment. Under Section 13, Article
VI, “(N)o Senator or Member of the House of Representatives may
hold any other office or employment in the Government . . .”. Under
Section 5(4), Article XVI, “(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a
civilian position in the Government, including government-owned or
controlled corporations or any of their subsidiaries.” Even Section 7
(2), Article IX-B, relied upon by respondents provides “(U)nless

otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the
Government.”
It is quite notable that in all these provisions on disqualifications to
hold other office or employment, the prohibition pertains to an office
or employment in the government and government-owned or
controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that “(T)he President,
Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.” In the latter
provision, the disqualification is absolute, not being qualified by the
phrase “in the Government.” The prohibition imposed on the President
and his official family is therefore all-embracing and covers both public
and private office or employment.
Going further into Section 13, Article VII, the second sentence
provides: “They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.” These sweeping, all-
embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of
the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his
official family as a class by itself and to impose upon said class stricter
prohibitions.
329
VOL. 194, FEBRUARY 22, 1991 329
Civil Liberties Union vs. Executive Secretary
Such intent of the 1986 Constitutional Commission to be stricter with
the President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in
the General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, “We actually have to be
stricter with the President and the members of the Cabinet because
ADMELEC Cases
64
they exercise more powers and, therefore, more checks and restraints
on them are called for because there is more possibility of abuse in
their case.”14
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase “unless otherwise
provided in this Constitution” in Section 13, Article VII cannot possibly
refer to the broad exceptions provided under Section 7, Article IX-B of
the 1987 Constitution. To construe said qualifying phrase as
respondents would have us do, would render nugatory and
meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government
during their tenure. Respon-dents’ interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-ranking officials of the
Execu-
_______________
14 Record of the 1986 Constitutional Commission, Vol. I, p. 553.
330
330 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
tive Branch from the President to Assistant Secretary, on the one
hand, and the generality of civil servants from the rank immediately
below Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.
Moreover, respondents’ reading of the provisions in question
would render certain parts of the Constitution inoperative. This

observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment
when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible “for
appointment or designation in any capacity to any public office or
position during his tenure.” Surely, to say that the phrase “unless
otherwise provided in this Constitution” found in Section 13, Article VII
has reference to Section 7, par. (1) of Article IX-B would render
meaningless the specific provisions of the Constitution authorizing the
Vice-President to become a member of the Cabinet,15 and to act as
President without relinquishing the Vice-Presidency where the
President shall not have been chosen or fails to qualify. 16 Such absurd
consequence can be avoided only by interpreting the two provisions
under consideration as one, i.e., Section 7, par. (1) of Article IX-B
providing the general rule and the other, i.e., Section 13, Article VII as
constituting the exception thereto. In the same manner must Section
7, par. (2) of Article IX-B be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in constitutional construction that no
one provision of the Constitution is to be separated from all the others,
to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted
as to effectuate the great purposes of the instrument. 17 Sections
bearing on a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the Constitution 18 and
one section is not to be
_______________
15 Sec. 3, Ibid.
16 Sec. 7, Article VII.
17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed
345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241 P. 879.
18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith,
331
VOL. 194, FEBRUARY 22, 1991 331
Civil Liberties Union vs. Executive Secretary
allowed to defeat another, if by any reasonable construction, the two
can be made to stand together.19
In other words, the court must harmonize them, if practicable, and
must lean in favor of a construction which will render every word
ADMELEC Cases
65
operative, rather than one which may make the words idle and
nugatory.20
Since the evident purpose of the framers of the 1987 Constitution
is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation.21 The phrase
“unless otherwise provided in this Constitution” must be given a literal
interpretation to refer only to those’ particular instances cited in the
Constitution itself, to wit: the Vice-Presi-dent being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution must not,
however, be construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an ex-
officio capacity as provided by law and as
_______________
308 Ky 73, 212 SW 2d 521.
19 People vs. Wright, 6 Col. 92.
20 Thomas M. Colley, A Treatise on the Constitutional Limitations,
Vol. I, p. 128, citing Attorney-General vs. Detroit and Erin Plank Road
Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs.
Dubuque, 7 Iowa 262.
21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22
Tex. App. 396, 3 S.W. 233.
332
332 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary

required22 by the primary functions of said officials’ office. The reason
is that these posts do no comprise “any other office” within the
contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. 23 To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the Philippines
cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-
President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit
in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and
assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board
of Trustees of the National Manpower and Youth Council (NMYC) or
the Philippine Overseas Employment Administration (POEA), both of
which are attached to his department for policy coordination and
guidance. Neither can his Undersecretaries and Assistant Secretaries
chair these agencies. The Secretaries of Finance and Budget cannot
sit in the Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking employees in
providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended
such absurd consequences. A Constitution, viewed as a continuously
operative charter of government, is not to be interpreted as demanding
the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should
_______________
22 As opposed to the term “allowed” used in Section 7, par. (2),
Article IX-B of the Constitution, which is permissive. “Required”
suggests an imposition, and therefore, obligatory in nature.
23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Green-
ville Sewer District, 173 A.L.R. 407.
24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117.
25 Sec. 20, Art. XII, 1987 Constitution.
333
VOL. 194, FEBRUARY 22, 1991 333
ADMELEC Cases
66
Civil Liberties Union vs. Executive Secretary
be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to
be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as
required by the primary functions of the concerned official’s office. The
term ex-officio means “from office; by virtue of office.” It refers to an
“authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the
official position.” Ex-officio likewise denotes an “act done in an official
character, or as a consequence of office, and without any other
appointment or authority than that conferred by the office.” 27 An ex-
officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment.28 To
illustrate, by express provision of law, the Secretary of Transportation
and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-
officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board,31 thus: “An examination of section 2 of the
questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the
respective department heads. With the exception of the representative
from the private sector, they sit ex-officio. In order to be designated
they must already be holding positions in the offices mentioned in the
law. Thus, for instance, one who does not hold a previous appointment
in the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect to the
represen-
_______________
26 Hirabayashi vs. United States, 320 U.S. 81, 87 L.Ed. 1774, 63
S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of Wage and Hour
Div., 312 U.S. 126,85 L. Ed. 624,61 S. Ct. 524; Gage vs. Jordan, 23
Cal 2d 794, 174 P 2d, 287 cited in 16 Am Jur 2d, pp. 100, 464.
27 Black’s Law Dictionary, p. 516; 15A Words and Phrases, p. 392.
28 15A Words and Phrases, p. 392.
29 Sec. 7, E.O. 778.
30 Sec. 1, E.O. 210.
31 21 SCRA 336 (1967).

334
334 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
tatives from the order offices. No new appointments are neces sary.
This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those
already performed under their original appointments.”32
The term “primary” used to describe “functions” refers to the order
of importance and thus means chief or principal function. The term is
not restricted to the singular but may refer to the plural. 33 The
additional duties must not only be closely related to, but must be
required by the official’s primary functions. Examples of designations
to positions by virtue of one’s primary functions are the Secretaries of
Finance and Budget sitting as members of the Monetary Board, and
the Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority34 and the Civil
Aeronautics Board. If the functions required to be performed are
merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such
additional functions would fall under the purview of “any other office”
prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions
and/or monetary compensation, such as but not limited to
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-
President, Cabinet Members, their deputies or assistants which are
not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill
in their respective executive offices is a practice long-recognized in
many jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination among the
different offices in the Execu-
_______________
32 Italics supplied.
33 33A Words and Phrases, p. 210, citing Collector of Revenue vs.
Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145.
ADMELEC Cases
67
34 Sec. 7, P.D. No. 474.
335
VOL. 194, FEBRUARY 22, 1991 335
Civil Liberties Union vs. Executive Secretary
tive Branch in the discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power
vested on the President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus and offices and
to ensure that the laws are faithfully executed.35 Without these
additional duties and functions being assigned to the President and
his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as
provided by law and as required by their primary functions, they would
be deprived of the means for control and supervision, thereby resulting
in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties
or functions may not transgress the prohibition embodied in Section
13, Article VII of the 1987 Constitution, such additional duties or
functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as
provided by law, without receiving any additional compensation
therefor.
The ex-officio position being actually and in legal contemplation
part of the principal office, it follows that the official concerned has no
right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. It should
be obvious that if, say, the Secretary of Finance attends a meeting of
the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters,
which come under the jurisdiction of his department. For such
attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per diem or an
honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is
prohibited by the Constitution.
It is interesting to note that during the floor deliberations on

_______________
35
Section 17, Article VII.
336
336 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
the proposal of Commissioner Christian Monsod to add to Section 7,
par. (2), Article IX-B, originally found as Section 3 of the General
Provisions, the exception “unless required by the functions of his
position,”36 express reference to certain high-ranking appointive public
officials like members of the Cabinet were made.37 Responding to a
query of Commissioner Bias Ople, Commissioner Monsod pointed out
that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices
and corporations is necessary by reason of said officials’ primary
functions. The example given by Commissioner Monsod was the
Minister of Trade and Industry.38
While this exchange between Commissioners Monsod and Ople
may be used as authority for saying that additional functions and
duties flowing from the primary functions of the official may be
imposed upon him without offending the constitutional prohibition;
under consideration, it cannot, however, be taken as authority for
saying that this exception is by virtue of Section 7, par. (2) of Article
IX-B. This colloquy between the two Commissioners took place in the
plenary session of September 27,1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the proposed
article on General Provisions.39 At that time, the article on the Civil
Service Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department, containing the
more specific prohibition in Section 13, had also been earlier approved
on third reading on August 26, 1986.41 It was only after the draft
Constitution had undergone reformatting and “styling” by the
Committee on Style that said Section 3 of the General Provisions
became Section 7, par. (2) of Article IX-B
_______________
36 The phrase that appears in the Constitution is not “Unless
required by the primary functions” but “Unless otherwise allowed by
law or by the primary functions . . .”
ADMELEC Cases
68
37 Record of the 1986 Constitutional Commission, Vol. V, pp 165-
166.
38 Italics supplied, Ibid., p. 165.
39 Ibid., Vol. V., pp. 80-81.
40 Ibid., Vol. II, p. 94.
41 Ibid., Vol. III, p. 710.
337
VOL. 194, FEBRUARY 22, 1991 337
Civil Liberties Union vs. Executive Secretary
and reworded “Unless otherwise allowed by law or by the primary
functions of his position. . .”
What was clearly being discussed then were general principles
which would serve as constitutional guidelines in the absence of
specific constitutional provisions on the matter. What was primarily at
issue and approved on that occasion was the adoption of the qualified
and delimited phrase “primary functions” as the basis of an exception
to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in
said Section 13 of Article VII, it could have re-worded said Section 13
to conform to the wider exceptions provided in then Section 3 of the
proposed general Provisions, later placed as Section 7, par. (2) of
Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the
President and his official family is by reason of the legal principles
governing additional functions and duties of public officials rather than
by virtue of Section 7, par. 2, Article IX-B. At any rate, we have made
it clear that only the additional functions and duties “required,” as
opposed to “allowed,” by the primary functions may be considered as
not constituting “any other office.”
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention “are of value as
showing the views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of

fundamental law. We think it safer to construe the constitution from
what appears upon its face.”43 The proper interpretation therefore
depends more on how it was understood by the people
_______________
42 16 Corpus Juris Secundum, 2. 31, p. 105.
43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.
338
338 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union us. Executive Secretary
adopting it than in the framers’s understanding thereof.44
It being clear, as it was in fact one of its best selling points, that the
1987 Constitution seeks to prohibit the President, Vice-President,
members of the Cabinet, their deputies or assistants from holding
during their tenure multiple offices or employment in the government,
except in those cases specified in the Constitution itself and as above
clarified with respect to posts held without additional compensation in
an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then
called Minis-ters) as examples during the debate and deliberation on
the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the
constitution’s manifest intent and the people’ understanding thereof.
In the light of the construction given to Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B of the 1987 Constitution,
Executive Order No. 284 dated July 23, 1987 is unconstitutional.
Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant sec-retaries may hold in addition to their
primary position to not more than two (2) positions in the government
and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical
consequences that will result from a strict application of the prohibition
mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of
their offices held in an ex-officio capacity, by reason of their primary
ADMELEC Cases
69
positions or by virtue of legislation. As earlier clarified in this
decision, ex-officio posts held by the executive official concerned
without additional compensation as provided by law and as required
by the primary functions of
_______________
44Household Finance Corporation vs. Shaffner, 203, S.W 2d 734
356 Mo. 808.
339
VOL. 194, FEBRUARY 22, 1991 339
Civil Liberties Union vs. Executive Secretary
his office do not fall under the definition of “any other office” within the
contemplation of the constitutional prohibition. With respect to other
offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared
impractical consequences are more apparent than real. Being head of
an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head’s ability
and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility,
which may result in haphaz-ardness and inefficiency. Surely the
advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking
in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the
court hereby orders respondents Secretary of Environment and
Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government45 Luis Santos, Secretary of National Defense Fidel V.
Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of
the Budget Guillermo Carague to immediately relinquish their other
offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have

become moot and aca-demic as they are no longer occupying the
positions complained of.
During their tenure in the questioned positions, respondents may
be considered de facto officers and as such entitled to emoluments for
actual services rendered.46 It has been held
_______________
45
Now Department of Interior and Local Governments.
46
Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61
SCRA 55.
340
340 SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
that “in cases where there is no de jure, officer, a de facto officer, who,
in good faith has had possession of the office and has discharged the
duties pertaining thereto, is legally entitled to the emoluments of the
office, and may in an appropriate action recover the salary, fees and
other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust
that the public should benefit by the services of an officer de facto and
then be freed from all liability to pay any one for such services. 47 Any
per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the
petitions are GRANTED. Executive Order No. 284 is hereby declared
null and void and is accordingly set aside.
SO ORDERED.
G.R. No. 86564. August 1, 1989.*
RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON
ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZA-BAL,
respondents.
Civil Procedure; Special Civil Actions; Quo Warranto; Docket
Fees; Election Law; The petition for quo warranto was filed on time,
ADMELEC Cases
70
the filing fee having been filed within the ten-day period prescribed by
law; whatever delay in the payment thereof was not imputable to the
private respondent.—The Court has considered the arguments of the
parties and holds that the petition for quo warranto was filed on time.
We agree with the respondents that the fee was paid during the ten-
day period as extended by the pendency of the petition when it was
treated by the COMELEC as a pre-proclamation proceeding which did
not require the payment of a filing fee. At that, we reach this conclusion
only on the assumption that the requirement for the payment of the
fees in quo warranto proceedings was already effective. x x x In any
event, what is important is that the filing fee was paid, and whatever
delay there may have been is not imputable to the private respon-
dent’s fault or neglect. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a precondition for the
timeliness of the filing of the case itself. In Sun Insurance Office, Ltd.
v. Asuncion, however, this Court, taking into account the special
____________
*
EN BANC.
2
2 SUPREME COURT REPORTS
ANNOTATED
Labo, Jr. vs. Commission on Election
circumstances of that case, declared: This Court reiterates the
rule that the trial court acquires jurisdiction over a case only upon the
payment of the prescribed filing fee. However, the court may allow the
payment of the said fee within a reasonable time. In the event of
noncompliance therewith, the case shall be dismissed.
Same; Appeals; Remand of the case to the lower court for
further reception of evidence is not necessary where the court is in a
position to resolve the dispute based on the records before it.—This
matter should normally end here as the sole issue originally raised by
the petitioner is the timeliness of the quo warranto proceedings
against him. However, as his citizenship is the subject of that
proceeding, and considering the necessity for an early resolution of
that more important question clearly and urgently affecting the public
interest, we shall directly address it now in this same action. x x x While
it is in the fault of the petitioner for appealing to the wrong court and

thereby allowing the period for appeal to lapse, the more correct
procedure was for the respondent court to forward the case to the
proper court which was the Court of Appeals for appropriate action.
Considering, however, the length of time that this case has been
pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112
SCRA 629) and follow the principle enunciated in Alger Electric, Inc.
v. Court of Appeals, (135 SCRA 37) which states: “x x x it is a
cherished rule of procedure for this Court to always strive to settle the
entire controversy in a single proceeding leaving no root or branch to
bear the seeds of future litigation. No useful purpose will be served if
this case is remanded to the trial court only to have its decision raised
again to the Intermediate Appellate Court and from there to this Court.”
(p. 43) x x x A marked characteristic of our judicial set-up is that where
the dictates of justice so demand x x x the Supreme Court should act,
and act with finality.’ (Li Siu Liat v. Republic, 21 SCRA 1039, 1046,
citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In
this case, the dictates of justice do demand that this Court act, and act
with finality.” x x x Remand of the case to the lower court for further
reception of evidence is not necessary where the court is in a position
to resolve the dispute based on the records before it. On many
occasions, the Court, in the public interest and the expeditious
administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as
where the ends of justice would not be subserved by the remand of
the case or when public interest demands an early disposition of the
case or where the trial court had already received all the evidence of
the parties.
3 subsequently rejected by Australia, as he claims, does not mean that
VOL. 176, AUGUST 1, 1989 3 Same; Same; Same; Same; Philippine citizenship may be
Labo, Jr. vs. Commission on Election
Same; Judgments; Res Judicata; Constitutional
Law; Citizenship; The doctrine of res judicata does not apply to
questions of citizenship.—There is also the claim that the decision can
no longer be reversed because of the doctrine of res judicata, but this
too must be dismissed. This doctrine does not apply to questions of
citizenship, as the Court has ruled in several cases. Moreover, it does
not appear that it was properly and seasonably pleaded, in a motion
to dismiss or in the answer, having been invoked only when the
petitioner filed his reply to the private respondent’s comment. Besides,
ADMELEC Cases
71
one of the requisites of res judicata, to wit, identity of parties, is not
present in this case.
Constitutional Law; Citizenship; Commonwealth Act No.
63; Modes by which Philippine citizenship may be lost.—The
petitioner now claims that his naturalization in Australia made him at
worst only a dual national and did not divest him of his Philippine
citizenship. Such a specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes by which
Philippine citizenship may be lost. Among these are: (1) naturalization
in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws
of a foreign country, all of which are applicable to the petitioner. It is
also worth mentioning in this connection that under Article IV, Section
5, of the present Constitution, “Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law.”
Same; Same; Same; Same; The annulment of petitioner’s
Australian citizenship as a result of the finding that his marriage to an
Australian national was bigamous, did not automatically restore his
Philippine citizenship.—Even if it be assumed that, as the petitioner
asserts, his naturalization in Australia was annulled after it was found
that his marriage to the Australian citizen was bigamous, that
circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not concern
us here. That is a matter between him and his adopted country. What
we must consider is the fact that he voluntarily and freely rejected
Philippine citizenship and willingly and knowingly embraced the
citizenship of a foreign country. The possibility that he may have been
he has been automatically reinstated as a citizen of the Philippines.
reacquired by direct act of Congress, by naturalization or by
repatriation; It
4
4 SUPREME COURT REPORTS
ANNOTATED
Labo, Jr. vs. Commission on Election
does not appear that petitioner has reacquired his Philippine
citizenship by any of these methods.—Under CA No. 63 as amended
by PD No. 725, Philippine citizenship may be reacquired by direct act

of Congress, by naturalization, or by repatriation. It does not appear in
the record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not point to
any judicial decree of naturalization as to any statute directly
conferring Philippine citizenship upon him. Neither has he shown that
he has complied with PD No. 725, providing that: x x x (2) natural-born
Filipinos who have lost their Philippine citizenship may reacquire
Philippine citizenship through repatriation by applying with the Special
Committee on Naturalization created by Letter of Instruction No. 270,
and, if their applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be
deemed to have reacquired Philippine citizenship. The Commission
on Immigration and Deportation shall thereupon cancel their certificate
of registration. (Italics supplied.) That is why the Commission on
Immigration and Deportation rejected his application for the
cancellation of his alien certificate of registration. And that is also the
reason we must deny his present claim for recognition as a citizen of
the Philippines.
Election Law; The qualifications for an elective office are
continuing requirements, once any of them is lost during incumbency,
title to the office itself is deemed forfeited.—The probability that many
of those who voted for the petitioner may have done so in the belief
that he was qualified only strengthens the conclusion that the results
of the election cannot nullify the qualifications for the office now held
by him. These qualifications are continuing requirements; once any of
them is lost during incumbency, title to the office itself is deemed
forfeited. In the case at bar, the citizenship and voting requirements
were not subsequently lost but were not possessed at all in the first
place on the day of the election. The petitioner was disqualified from
running as mayor and, although elected, is not now qualified to serve
as such.
Same; The candidate who obtained the second highest number
of votes cannot occupy the office that was vacated as a result of the
disqualification of the candidate who obtained the highest number of
votes.—Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he
5 belief that the candidate was alive, qualified, or eligible, they should
ADMELEC Cases
72
VOL. 176, AUGUST 1, 1989 5
Labo, Jr. vs. Commission on Election
was obviously not the choice of the people of Baguio City. The
latest ruling of the Court on this issue is Santos v. Commission on
Elections, decided in 1985. In that case, the candidate who placed
second was proclaimed elected after the votes for his winning rival,
who was disqualified as a turncoat and considered a non-candidate,
were all disregarded as stray. In effect, the second placer won by
default. That decision was supported by eight members of the Court
then, with three dissenting and another two reserving their vote. One
was on official leave. Re-examining that decision, the Court finds, and
so holds, that it should be reversed in favor of the earlier case of
Geronimo v. Ramos, which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes, was supported by ten
members of the Court, without any dissent, although one reserved his
vote, another took no part, and two others were on leave. There the
Court held: “x x x it would be extremely repugnant to the basic concept
of the constitutionally guaranteed right to suffrage if a candidate who
has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that
they do not choose him. Sound policy dictates that public elective
offices are filled by those who have received the highest number of
votes cast in the election for that office, and it is a fundamental idea in
all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election.
(20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who
obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest
number of votes to be declared the winner of the elective office. The
votes cast for a dead, disqualified, or non-eligible person may not be
valid to vote the winner into office or maintain him there. However, in
the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere
not be treated as stray, void or meaningless.

GUTIERREZ, JR., J., Separate Concurring Opinion:
Civil Procedure; Appeals; No decision on the petitioner’s
citizenship has been rendered and no decision can, as yet, be
elevated to the Supreme Court for review.—What was raised to the
Court was only the
6 popular verse that for want of a horse the kingdom was lost. Still, if it
6 SUPREME COURT REPORTS
ANNOTATED
Labo, Jr. vs. Commission on Election
issue of the COMELEC’s jurisdiction to inquire into the
citizenship of the petitioner. Ordinarily, we would have limited
ourselves to sustaining the jurisdiction of the COMELEC and
remanding the case for further proceedings and the rendition of a
decision. Under Section 7, Article IX-A of the Constitution, a decision,
order, or ruling of the COMELEC may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof. No decision on the petitioner’s citizenship
has been rendered and no decision can, as yet, be elevated to us for
review. I, therefore, reiterate my statement in Frivaldo that my
concurrence is limited only to cases involving citizenship and
disloyalty but not to any of the many other grounds for disqualification
cited in my concurring opinion.
PETITION to review the decision of the Commission on Elections.
The facts are stated in the opinion of the Court.
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.
CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections
from looking into the question of his citizenship as a qualification for
his office as Mayor of Baguio City. The allegation that he is a foreigner,
he says, is not the issue. The issue is whether or not the public
respondent has jurisdiction to conduct any inquiry into this matter,
ADMELEC Cases
73
considering that the petition for quo warranto against him was not filed
on time.
It is noteworthy that this argument is based on the alleged
tardiness not of the petition itself but of the payment of the filing fee,
which the petitioner contends was an indispensable requirement. The
fee is, curiously enough, all of P300.00 only. This brings to mind the
is shown that the petition was indeed filed beyond the reglementary
period, there is no question that this petition must be granted and the
challenge abated.
The petitioner’s position is simple. He was proclaimed mayor-elect
of Baguio City on January 20, 1988. The petition for quo warranto was
filed by the private respondent on January 26, 1988, but no filing fee
was paid on that date. This fee was finally
7
VOL. 176, AUGUST 1, 1989 7
Labo, Jr. vs. Commission on Election
paid on February 10, 1988, or twenty-one days after his proclamation.
As the petition by itself alone was ineffectual without the filing fee, it
should be deemed filed only when the fee was paid. This was done
beyond the reglementary period provided for under Section 253 of the
Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto.—Any voter contesting the
election of a Member of the Batasang Pambansa, regional, provincial,
or city officer on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for quo warranto
with the Commission within ten days after the proclamation of the
result of the election.
The petitioner adds that the payment of the filing fee is required under
Rule 36, Section 5, of the Procedural Rules of the COMELEC
providing that—
Sec. 5. No petition for quo warranto shall be given due course without
the payment of a filing fee in the amount of Three Hundred Pesos
(P300.00) and the legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the
payment of the filing fee is essential to the timeliness of the filing of
the petition itself. He cites many rulings of the Court to this effect,
specifically Manchester v. Court of Appeals.1

For his part, the private respondent denies that the filing fee was
paid out of time. In fact, he says, it was filed ahead of time. His point
is that when he filed his “Petition for Quo Warranto with Prayer for
Immediate Annulment of Proclamation and Restraining Order or
Injunction” on January 26, 1988, the COMELEC treated it as a pre-
proclamation controversy and docketed it as SPC Case No. 88-288.
No docket fee was collected although it was offered. It was only on
February 8, 1988, that the COMELEC decided to treat his petition as
solely for quo warranto and re-docketed it as EPC Case No. 88-19,
serving him notice on February 10, 1988. He immediately paid the
_____________
1 149 SCRA 562.
8 1988.
8 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
filing fee on that date.
The private respondent argues further that during the period when
the COMELEC regarded his petition as a pre-proclamation
controversy, the time for filing an election protest or quo warranto
proceeding was deemed suspended under Section 248 of the
Omnibus Election Code.2 At any rate, he says, Rule 36, Section 5, of
the COMELEC Rules of Procedure cited by the petitioner, became
effective only on November 15, 1988, seven days after publication of
the said Rules in the Official Gazette pursuant to Section 4, Rule 44
thereof.3 These rules could not retroact to January 26, 1988, when he
filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus
Election Code did not require it, the payment of filing fees was still
necessary under Res. No. 1996 and, before that, Res. No. 1450 of the
respondent COMELEC, promulgated on January 12, 1988, and
February 26, 1980, respectively. To this, the private respondent
counters that the latter resolution was intended for the local elections
held on January 30, 1980, and did not apply to the 1988 local
elections, which were supposed to be governed by the first-mentioned
resolution. However, Res. No. 1996 took effect only on March 3, 1988,
following the lapse of seven days after its publication as required by
RA No. 6646, otherwise known as the Electoral Reform Law of 1987,
ADMELEC Cases
74
which became effective on January 5, 1988. Its Section 30 provides in
part:
____________
2 Sec. 248. Effect of filing petition to annul or suspend the
proclamation.—The filing with the Commission of a petition to annul or
to suspend the proclamation of any candidate shall suspend the
running of the period within which to file an election protest or quo
warranto proceedings.
3 Rule 44, Sec. 4. COMELEC Rules of Procedure,
Effectivity.___ These Rules shall be published in the Official Gazette
and shall take effect on the seventh day following its publication.
Actually, the Rules became effective seven days after the official
release of the Official Gazette dated June 27, 1988 on November 8,
9
VOL. 176, AUGUST 1, 1989 9
Labo, Jr. vs. Commission on Election
Sec. 30. Effectivity of Regulations and Orders of the Commission.—
The rules and regulations promulgated by the Commission shall take
effect on the seventh day after their publication in the Official Gazette
or in at least (2) daily newspapers of general circulation in the
Philippines.
The Court has considered the arguments of the parties and holds that
the petition for quo warranto was filed on time. We agree with the
respondents that the fee was paid during the ten-day period as
extended by the pendency of the petition when it was treated by the
COMELEC as a pre-proclamation proceeding which did not require
the payment of a filing fee. At that, we reach this conclusion only on
the assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. There is no record that
Res. No. 1450 was even published; and as for Res. No. 1996, this
took effect only on March 3, 1988, seven days after its publication in
the February 25, 1988 issues of the Manila Chronicle and the Philipine
Daily Inquirer, or after the petition was filed.
The petitioner forgets Tañada v. Tuvera4 when he argues that the
resolutions became effective “immediately upon approval” simply
because it was so provided therein. We held in that case that

publication was still necessary under the due process clause despite
such effectivity clause.
In any event, what is important is that the filing fee was paid, and
whatever delay there may have been is not imputable to the private
respondent’s fault or neglect. It is true that in the Manchester Case,
we required the timely payment of the filing fee as a precondition for
the timeliness of the filing of the case itself. In Sun Insurance Office,
Ltd. v. Asuncion,5 however, this Court, taking into account the special
circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction
over a case only upon the payment of the prescribed filing fee.
However, the court may allow the payment of the said fee within a
____________
4 146 SCRA 446.
5 G.R. Nos. 79937-38, February 13, 1989.
10
10 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
reasonable time. In the event of non-compliance therewith, the
case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC
Rules of Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees.—If the fees above
prescribed are not paid, the Commission may refuse to take action
thereon until they are paid and may dismiss the action or the
proceeding. (Italics supplied.)
The Court notes that while arguing the technical point that the petition
for quo warranto should be dismissed for failure to pay the filing fee
on time, the petitioner would at the same time minimize his alleged
lack of citizenship as “a futile technicality.” It is regrettable, to say the
least, that the requirement of citizenship as a qualification for public
office can be so demeaned. What is worse is that it is regarded as an
even less important consideration than the reglementary period the
petitioner insists upon.
This matter should normally end here as the sole issue originally
raised by the petitioner is the timeliness of the quo warranto
ADMELEC Cases
75
proceedings against him. However, as his citizenship is the subject of
that proceeding, and considering the necessity for an early resolution
of that more important question clearly and urgently affecting the
public interest, we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it
would appear that our sole function in this proceeding should be to
resolve the single issue of whether or not the Court of Appeals erred
in ruling that the motion for new trial of the GSIS in question should
indeed be deemed pro forma. But going over the extended pleadings
of both parties, the Court is immediately impressed that substantial
justice may not be timely achieved, if we should decide this case upon
such a technical ground alone. We have carefully read all the
allegations and arguments of the parties, very ably and
comprehensively expounded by evidently knowledgeable and
unusually
11
VOL. 176, AUGUST 1, 1989 11
Labo, Jr. vs. Commission on Election
competent counsel, and we feel we can better serve the interests
of justice by broadening the scope of our inquiry, for as the record
before us stands, we see that there is enough basis for us to end the
basic controversy between the parties here and now, dispensing,
however, with procedural steps which would not anyway affect
substantially the merits of their respective claims.6
x x x
While it is the fault of the petitioner for appealing to the wrong court
and thereby allowing the period for appeal to lapse, the more correct
procedure was for the respondent court to forward the case to the
proper court which was the Court of Appeals for appropriate action.
Considering, however, the length of time that this case has been
pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112
SCRA 629) and follow the principle enunciated in Alger Electric, Inc.
v. Court of Appeals, (135 SCRA 37) which states:
“x x x it is a cherished rule of procedure for this Court to always strive
to settle the entire controversy in a single proceeding leaving no root
or branch to bear the seeds of future litigation. No useful purpose will
be served if this case is remanded to the trial court only to have its

decision raised again to the Intermediate Appellate Court and from
there to this Court.” (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of
Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that:
“x x x But all those relevant facts are now before this Court. And those
facts dictate the rendition of a verdict in the petitioner’s favor. There is
therefore no point in referring the case back to the Court of Appeals.
The facts and the legal propositions involved will not change, nor
should the ultimate judgment. Considerable time has already elapsed
and, to serve the ends of justice, it is time that the controversy is finally
laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v.
Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co.,
Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco
v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil.
____________
6
Velasco v. Court of Appeals, 95 SCRA 616. See also Ortigas v.
Ruiz, 148 SCRA 326; First Asian Transport and Shipping Agency, Inc.
v. Ople, 142 SCRA 542; Quisumbing v. Court of Appeals, 122 SCRA
703; Del Castillo v. Jaymalin, 112 SCRA 629; Francisco v. City of
Davao, 12 SCRA 628.
12
12 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
162). ‘Sound practice seeks to accommodate the theory which avoids
waste of time, effort and expense, both to the parties and the
government, not to speak of delay in the disposal of the case (cf.
Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of
our judicial set-up is that where the dictates of justice so demand x x
x the Supreme Court should act, and act with finality.’ (Li Siu Liat v.
Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil.
230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of
justice do demand that this Court act, and act with finality.”7
x x x
Remand of the case to the lower court for further reception of
evidence is not necessary where the court is in a position to resolve
the dispute based on the records before it. On many occasions, the
ADMELEC Cases
76
Court, in the public interest and the expeditious administration of
justice, has resolved actions on the merits instead of remanding them
to the trial court for further proceedings, such as where the ends of
justice would not be subserved by the remand of the case or when
public interest demands an early disposition of the case or where the
trial court had already received all the evidence of the parties.8
This course of action becomes all the more justified in the present
case where, to repeat for stress, it is claimed that a foreigner is holding
a public office.
We also note in his Reply, the petitioner says: In adopting private
respondent’s comment, respondent COMELEC implicitly adopted as
“its own” private respondent’s repeated assertion that petitioner is no
longer a Filipino citizen. In so doing, has not respondent COMELEC
effectively disqualified itself, by reason of prejudgment, from resolving
the petition for quo warranto filed by private respondent still pending
before it?9
This is still another reason why the Court has seen fit to rule
directly on the merits of this case.
Going over the record, we find that there are two administra-
_____________
7 Tejones v. Gironella, 159 SCRA 100.
8 Lianga Bay Logging Co., Inc. v. CA, 157 SCRA 357.
9 Rollo, p. 159.
13
VOL. 176, AUGUST 1, 1989 13
Labo, Jr. vs. Commission on Election
tive decisions on the question of the petitioner’s citizenship. The first
was rendered by the Commission on Elections on May 12, 1982, and
found the petitioner to be a citizen of the Philippines.10 The second
was rendered by the Commission on Immigration and Deportation on
September 13, 1988, and held that the petitioner was not a citizen of
the Philippines.11
The first decision was penned by then COMELEC Chairman
Vicente Santiago, Jr., with Commissioners Pabalate, Savellano and
Opinion concurring in full and Commissioner Bacungan concurring in
the dismissal of the petition “without prejudice to the issue of the
respondent’s citizenship being raised anew in a proper case.”

Commissioner Sagadraca reserved his vote, while Commissioner
Felipe was for deferring decision until representations shall have been
made with the Australian Embassy for official verification of the
petitioner’s alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman
Miriam Defensor-Santiago and Commissioners Alano and Geraldez of
the Commission on Immigration and Deportation.
It is important to observe that in the proceeding before the
COMELEC, there was no direct proof that the herein petitioner had
been formally naturalized as a citizen of Australia. This conjecture,
which was eventually rejected, was merely inferred from the fact that
he had married an Australian citizen, obtained an Australian passport,
and registered as an alien with the CID upon his return to this country
in 1980.
On the other hand, the decision of the CID took into account the
official statement of the Australian Government dated August 12,
1984, through its Consul in the Philippines, that the petitioner was still
an Australian citizen as of that date by reason of his naturalization in
1976. That statement12 is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by
virtue of a certificate of appointment signed and sealed by the
____________
10 Ibid., pp. 182A-195.
11 Id., pp. 94-107.
12 Id. Emphasis supplied.
14
14 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
Australian Minister of State for Foreign Affairs on 19 October 1983,
and recognized as such by Letter of Patent signed and sealed by the
Philippines Acting Minister of Foreign Affairs on 23 November 1983,
do hereby provide the following statement in response to the
Subpoena Testificandum dated 9 April 1984 in regard to the Petition
for disqualification against RAMON LABO, JR. Y LOZANO (SPC No.
84-73), and do hereby certify that the statement is true and correct.
STATEMENT
ADMELEC Cases
77
1. A)RAMON LABO, JR. Y LOZANO, date of birth 23 December
1934, was married in the Philippines to an Australian citizen.
As the spouse of an Australian citizen, he was not required
to meet normal requirements for the grant of citizenship and
was granted Australian citizenship by Sydney on 28 July
1976.
2. B)Any person over the age of 16 years who is granted
Australian citizenship must take an oath of allegiance or
make an affirmation of allegiance. The wording of the oath
of affirmation is: “I . . . ., renouncing all other allegiance . . .
.” etc. This need not necessarily have any effect on his
former nationality as this would depend on the citizenship
laws of his former country.
3. C)The marriage was declared void in the Australian Federal
Court in Sydney on 27 June 1980 on the ground that the
marriage had been bigamous.
4. D)According to our records LABO is still an Australian citizen.
5. E)Should he return to Australia, LABO may face court action
in respect of Section 50 of Australian Citizenship Act 1948
which relates to the giving of false or misleading information
of a material nature in respect of an application for Australian
citizenship. If such a prosecution was successful, he could
be deprived of Australian citizenship under Section 21 of the
Act.
6. F)There are two further ways in which LABO could divest
himself of Australian citizenship:
1. (i)He could make a declaration of Renunciation of Australian
citizenship under Section 18 of the Australian Citizenship
Act, or
2. (ii)If he acquired another nationality, (for example, Filipino) by
a formal and voluntary act other than marriage, then he
would automatically lose his Australian citizenship under
Section 17 of the Act.
15
VOL. 176, AUGUST 1, 1989 15
Labo, Jr. vs. Commission on Election
 78

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND
AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12TH
DAY OF APRIL 1984.
DONE AT MANILA IN THE PHILIPPINES.
(Signed)
GRAHAM C. WEST
Consul
This was affirmed later by the letter of February 1, 1988, addressed to
the private respondent by the Department of Foreign Affairs reading
as follows:13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform
you that inquiry made with the Australian Government through the
Embassy of the Philippines in Canberra has elicited the following
information:
1. 1)That Mr. Ramon L. Labo, Jr. acquired Australian
citizenship on 28 July 1976.
2. 2)That prior to 17 July 1986, a candidate for Australian
citizenship had to either swear an oath of allegiance or
make an affirmation of allegiance which carries a
renunciation of “all other allegiance.”
Very truly yours,
For the Secretary of Foreign Affairs:
(SGD) RODOLFO SEVERINO, JR.
Assistant Secretary
16 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
ing to law, and that I will faithfully observe the laws of Australia and
fulfill my duties as an Australian citizen.14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely
promise and declare that I will be faithful and bear true allegiance to
Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and
successors according to law, and that I will faithfully observe the Laws
of Australia and fulfill my duties as an Australian citizen. 15
The petitioner does not question the authenticity of the above
evidence. Neither does he deny that he obtained Australian Passport
No. 754705, which he used in coming back to the Philippines in 1980,
when he declared before the immigration authorities that he was an
alien and registered as such under Alien Certificate of Registration No.
B-323985.16 He later asked for the change of his status from immigrant
to a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809.17 He also categorically declared
that he was a citizen of Australia in a number of sworn statements
voluntarily made by him and even sought to avoid the jurisdiction of
the barangay court on the ground that he was a foreigner.18
The decision of the COMELEC in 1982 quaintly dismisses all these
acts as “mistakes” that did not divest the petitioner of his
_____________

The decision also noted the oath of allegiance taken by every 14 Id. Emphasis supplied.
naturalized Australian reading as follows: 15 Id. Emphasis supplied.
OATH OF ALLEGIANCE 16 Id.
17 Id.
I, A.B., renouncing all other allegiance, swear by Almighty God that I 18 (i) Statement dated 25 November 1976 that he is an “Australian,”
will be faithful and bear true allegiance to Her Majesty Elizabeth the made before Det. Abaya.
Second, Queen of Australia, Her heirs and successors accord- (ii) Statement affirming that he is an Australian citizen in the
____________ affidavit-complaint executed on 1 July 1988 and in the complaint filed
on 13 January 1982 with the City Court of Baguio: “x x x being an
13 Id. Emphasis supplied. Australian citizen the subject of this complaint is one of which the
Barangay Court cannot take cognizance of.”
16

ADMELEC Cases

17
VOL. 176, AUGUST 1, 1989 17
Labo, Jr. vs. Commission on Election
citizenship, although, as earlier noted, not all the members joined in
this finding. We reject this ruling as totally baseless. The petitioner is
not an unlettered person who was not aware of the consequences of
his acts, let alone the fact that he was assisted by counsel when he
performed these acts.
The private respondent questions the motives of the COMELEC at
that time and stresses Labo’s political affiliation with the party in power
then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed
because of the doctrine of res judicata, but this too must be dismissed.
This doctrine does not apply to questions of citizenship, as the Court
has ruled in several cases.19 Moreover, it does not appear that it was
properly and seasonably pleaded, in a motion to dismiss or in the
answer, having been invoked only when the petitioner filed his
reply20 to the private respondent’s comment. Besides, one of the
requisites of res judicata, to wit, identity of parties, is not present in this
case.
The petitioner’s contention that his marriage to an Australian
national in 1976 did not automatically divest him of Philippine
citizenship is irrelevant. There is no claim or finding that he
automatically ceased to be a Filipino because of that marriage. He
became a citizen of Australia because he was naturalized as such
through a formal and positive process, simplified in his case because
he was married to an Australian citizen. As a condition for such
naturalization, he formally took the Oath of Allegiance and/or made
the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore “to be faithful and bear true allegiance to Her
Majesty Elizabeth the Second, Queen of Australia . . .” and to fulfill his
duties “as an Australian citizen.”
The petitioner now claims that his naturalization in Australia made
him at worst only a dual national and did not divest him of his
Philippine citizenship. Such a specious argument cannot stand
against the clear provisions of CA No. 63, which
_____________
ADMELEC Cases
79
19
Soria v. Commissioner of Immigration, 37 SCRA 213; Lee v.
Commissioner of Immigration, 42 SCRA 561; Sia Reyes v.
Deportation Board, 122 SCRA 478.
20 Rollo, pp. 159-160.
18
18 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
enumerates the modes by which Philippine citizenship may be lost.
Among these are: (1) naturalization in a foreign country; (2) express
renunciation of citizenship; and (3) subscribing to an oath of allegiance
to support the Constitution or laws of a foreign country, all of which are
applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution,
“Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law.”
Even if it be assumed that, as the petitioner asserts, his
naturalization in Australia was annulled after it was found that his
marriage to the Australian citizen was bigamous, that circumstance
alone did not automatically restore his Philippine citizenship. His
divestiture of Australian citizenship does not concern us here. That is
a matter between him and his adopted country. What we must
consider is the fact that he voluntarily and freely rejected Philippine
citizenship and willingly and knowingly embraced the citizenship of a
foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been
automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. It does not appear in the record, nor
does the petitioner claim, that he has reacquired Philippine citizenship
by any of these methods. He does not point to any judicial decree of
naturalization as to any statute directly conferring Philippine
citizenship upon him. Neither has he shown that he has complied with
PD No. 725, providing that:
x x x (2) natural-born Filipinos who have lost their Philippine citizenship
may reacquire Philippine citizenship through repatriation by applying
with the Special Committee on Naturalization created by Letter of
Instruction No. 270, and, if their applications are approved, taking the
necessary oath of allegiance to the Republic of the Philippines, after

which they shall be deemed to have reacquired Philippine citizenship.
The Commission on Immigration and Deportation shall thereupon
cancel their certificate of registration. (Italics supplied.)
19
VOL. 176, AUGUST 1, 1989 19
Labo, Jr. vs. Commission on Election
That is why the Commission on Immigration and Deportation rejected
his application for the cancellation of his alien certificate of registration.
And that is also the reason we must deny his present claim for
recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local
elections on January 18, 1988, a citizen of the Philippines. In fact, he
was not even a qualified voter under the Constitution itself because of
his alienage.21 He was therefore ineligible as a candidate for mayor of
Baguio City under Section 42 of the Local Government Code providing
in material part as follows:
Sec. 42. Qualifications.—(1) An elective local official must be a citizen
of the Philippines, at least twenty-three years of age on election day,
a qualified voter registered as such in the barangay, municipality, city
or province where he proposes to be elected, a resident therein for at
least one year at the time of the filing of his certificate of candidacy,
and able to read and write English, Pilipino, or any other local
language or dialect.
The petitioner argues that his alleged lack of citizenship is a “futile
technicality” that should not frustrate the will of the electorate of Baguio
City who elected him by a “resonant and thunderous majority.” To be
accurate, it was not as loud as all that, for his lead over the second-
placer was only about 2,100 votes. In any event, the people of that
locality could not have, even unanimously, changed the requirements
of the Local Government Code and the Constitution. The electorate
had no power to permit a foreigner owing his total allegiance to the
Queen of Australia, or at least a stateless individual owing no
allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege
over their countrymen.
The probability that many of those who voted for the petitioner may
have done so in the belief that he was qualified only strengthens the
conclusion that the results of the election cannot nullify the
ADMELEC Cases
80
qualifications for the office now held by him. These qualifications are
continuing requirements; once any of
_____________
21 Art. V, Sec. 1, 1987 Constitution.
20
20 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
them is lost during incumbency, title to the office itself is deemed
forfeited. In the case at bar, the citizenship and voting requirements
were not subsequently lost but were not possessed at all in the first
place on the day of the election. The petitioner was disqualified from
running as mayor and, although elected, is not now qualified to serve
as such.
Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he
was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission
on Elections,22 decided in 1985. In that case, the candidate who
placed second was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and considered a non-
candidate, were all disregarded as stray. In effect, the second placer
won by default. That decision was supported by eight members of the
Court then,23 with three dissenting24 and another two reserving their
vote.25 One was on official leave.26
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo v.
Ramos,27 which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio
vs. Paredes,28 was supported by ten members of the Court,29 without
any dissent, although one
____________
22
137 SCRA 740.
23
Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and Aquino, JJ., concurring.
24 Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.

25 Plana and Gutierrez, Jr., JJ.
26 Fernando, C.J.
27 136 SCRA 435.
28 23 Phil. 238.
29 Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and
Alampay, JJ., concurring.
21
VOL. 176, AUGUST 1, 1989 21
Labo, Jr. vs. Commission on Election
reserved his vote,30 another took no part,31 and two others were on
leave.32 There the Court held:
“x x x it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose
him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can
be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office to
which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the
winner of the elective office. The votes cast for a dead, disqualified, or
non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the
votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or
meaningless.
It remains to stress that the citizen of the Philippines must take pride
in his status as such and cherish this priceless gift that, out of more
ADMELEC Cases
81
than a hundred other nationalities, God has seen fit to grant him.
Having been so endowed, he must not lightly yield this precious
advantage, rejecting it for another land that may offer him material and
other attractions that he may not find in his own country. To be sure,
he has the right to renounce the Philippines if he sees fit and transfer
his allegiance to a state with more allurements for him.33 But having
____________
30 Makasiar, J.
31 Aquino, J.
32 Fernando, C.J. and Concepcion, Jr., J.
33 Except in times of war, under CA No. 63.
22
22 SUPREME COURT REPORTS ANNOTATED
Labo, Jr. vs. Commission on Election
done so, he cannot expect to be welcomed back with open arm once
his taste for his adopted country turns sour or he is himself disowned
by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily
recovered after its renunciation. It may be restored only after the
returning renegade makes a formal act of re-dedication to the country
he has abjured and he solemnly affirms once again his total and
exclusive loyalty to the Republic of the Philippines. This may not be
accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared
NOT a citizen of the Philippines and therefore DISQUALIFIED from
continuing to serve as Mayor of Baguio City. He is ordered to VACATE
his office and surrender the same to the Vice-Mayor of Baguio City
once this decision becomes final and executory. The temporary
restraining order dated January 31, 1989, is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-
Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cort
és, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Gutierrez, Jr., J., see concurring statement.
SEPARATE CONCURRING OPINION
GUTIERREZ, JR., J.:

As in the case of Frivaldo v. Commission on Elections (G. R. No.
87193, June 23, 1989) and inspite of what would otherwise be
insuperable procedural obstacles, I am constrained to concur in the
Court’s decision so forcefully and felicitously written by Mr. Justice
Isagani A. Cruz. I do so because I cannot see how the Court can
countenance a citizen of a foreign country or one who has renounced
Filipino citizenship sitting as the mayor of one of the most important
cities in the Philippines.
What was raised to the Court was only the issue of the
COMELEC’s jurisdiction to inquire into the citizenship of the petitioner.
Ordinarily, we would have limited ourselves to sustaining the
jurisdiction of the COMELEC and remanding the
23
VOL. 176, AUGUST 1, 1989 23
Labo, Jr. vs. Commission on Election
case for further proceedings and the rendition of a decision. Under
Section 7, Article IX-A of the Constitution, a decision, order, or ruling
of the COMELEC may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from receipt of a copy thereof.
No decision on the petitioner’s citizenship has been rendered and no
decision can, as yet, be elevated to us for review. I, therefore, reiterate
my statement in Frivaldo that my concurrence is limited only to cases
involving citizenship and disloyalty but not to any of the many other
grounds for disqualification cited in my concurring opinion.
Our decision to disqualify the petitioner is particularly distressing
to me because I am impressed by the singular achievements in the
beautification of Baguio City, in the peace and order situation, and in
the resurgence of civic pride so visible to anyone who ha gone up to
Baguio since Mr. Labo assumed the mayorship. However, I see no
other way this case can be resolved except by adopting a pragmatic
approach. It is beyond dispute that a non citizen cannot be the mayor
of Baguio City. i join the rest of the Court.
Petitioner disqualified from continuing to serve as Mayor of Baguio
City.
Notes.—Dismissal of appeals purely on technical grounds is
frowned upon, and the rules of procedure ought not to be applied in a
very rigid, technical sense, for they are adopted to secure, not
override, substantial justice and thereby defeat their very aims. (A-
One Feeds Inc. vs. Court of Appeals, 100 SCRA 590.)
ADMELEC Cases
82
In meritorious cases, a liberal, not literal interpretation of the rules
become imperative and technicalities should not be resorted to in
derogation of the intent and purpose of the rules which is proper and
fast determination of a litigation. (A-One Feeds Inc. vs. Court of
Appeals, 100 SCRA 590.)
No. L-16924. April 29, 1963.
ANTONIA A. YEE, petitioner-appellee, vs. THE DIRECTOR OF
PUBLIC SCHOOLS, The Division Superintendent of Schools of
Antique, HON. SECRETARY OF EDUCATION, and Hon.
COMMISSIONER OF CIVIL SERVICE, respondents-appellants.
Public schools; Nature of position; Who are qualified to teach.—
Not being included in section 671 of the Revised Administrative Code
which enumerates the officers and employees constituting the
unclassified service, teaching in a public school is in the classified
service — a public function which may be performed by Filipino
citizens only.
Same; Same; Same; Marriage to an alien; Effect of loss of
citizenship.—Upon marriage of a Filipino woman to a Chinese citizen,
her Philippine citizenship ceases, and for that reason she is
disqualified from holding any position in the teaching service.
APPEAL from a judgment of the Court of First Instance of Antique.
The facts are stated in the opinion of the Court.
Acsay & Associates and Silvestre E. Untaran, Jr. for petitioner-
appellee.
Solicitor General for respondents-appellants.
PADILLA, J.:
This is an appeal from a judgment rendered by the Court of First
Instance of Antique —
x x x declaring illegal and contrary to law the removal of the
petitioner from her position as school teacher in the Division of Antique
on October 28, 1957, and ordering the respondents to reinstate the
petitioner forthwith to her former posi-
833
VOL. 7, APRIL 29, 1963 833

Yee vs. Director of Public Schools
tion, with all the privileges appurtenant thereto, and to cause to be paid
her salary of P140.00 a month from November 1, 1957 until the date
of her reinstatement, without pronouncement as to costs (Civil Case
No. 12)
upon a stipulation of facts submitted by the parties which is, as follows:
1. That the petitioner was a public school teacher and had been
appointed as such teacher in the Division of Antique in 1951;
2. That the petitioner was a civil service eligible as a regular
national teacher having passed the Junior Teachers’ (Regular)
Examination that was given on or about December 29, 1955;
3. That the petitioner was receiving a monthly salary of P140.00
as such teacher;
4. That in the school year 1957-1958 the petitioner was actually
teaching in the Buhang Elementary School, Buhang Hamtic, Antique;
5. That petitioner having married Mr. Ng Foo alias Pio Chet Yee,
a Chinese citizen, on August 10, 1957 is presently a Chinese citizen;
6. That effective sometime on October 28, 1957 the petitioner
was removed from her teaching service by virtue of Special Order No.
296, series of 1957, dated October 25, 1957, issued by the Division
Superintendent of Schools of Antique hereto attached as “Annex A”,
and this was pursuant to the 2nd indorsement of the Director of Public
Schools dated October 14, 1957, hereto attached (as) “Annex B”,
disauthorizing the continuance in the service of the petitioner on
account of Circular No. 40, series of 1947, hereto attached as “Annex
C”;
7. That prior to the effectivity of the order of removal the petitioner
wrote a letter to the Commissioner of Civil Service dated October 25,
1957 hereto attached as “Annex D”;
8. That petitioner wrote another letter dated September 26, 1958
addressed to the Division Superintendent of Schools of Antique asking
for reinstatement which is hereto attached as “Annex E”;
9. That Special Order No. 296 of the Division Superintendent of
Schools of Antique (Annex A) the ruling of the Director of Public
Schools in his 2nd indorsement dated October 14, 1957 (Annex B),
and Circular No. 40, series of 1947 (Annex C) had never been
appealed by the petitioner to the Secretary of Education;
ADMELEC Cases
83
10. That when this case was filed sometime on October 11,
1958, the original respondents were only the Director of Public
Schools and the Division Superintendent of Schools of Antique;834
834 SUPREME COURT REPORTS ANNOTATED
Yee vs. Director of Public Schools
11. That the petitioner came to know for the first time of the
actions taken on her letter of October 25, 1957 (Annex D) herein,
sometime on January 9, 1959 when the respondents Division
Superintendent of Schools and the Director of Public Schools
submitted their evidence in support of their motion to dismiss and
which documents are hereto attached as Annexes F, F-1, F-2, F-3, F-
4, F-5 and F-6 wherein it appears that the Secretary of Education in
its 3rd indorsement dated March 17, 1958 (Annex F-3) concurs with
the recommendation of the Director of Public Schools for denial of the
reinstatement of the petitioner to the service (Annex F-4) and that on
August 26, 1958, in its 4th indorsement the Commissioner of Civil
Service likewise concurs in the action separating Mrs. Antonio A. Yee
from the teaching service(Annex F-2);
12. That petitioner learned of the actions taken by the
respondents on her letter dated September 26, 1958 (Annex E)
sometime in May, 1959 and which actions are embodied in the
indorsements hereto attached as Annexes G, G-1, G-2, G-3, G4, G-5,
G-6 and G-7 indicating that in the 3rd indorsement dated February 2,
1959 (Annex G-4) the Secretary of Education ruled that Mrs. Antonia
A. Yee is still disqualified from holding any position in the teaching
service reiterating its position previously stated in the 3rd indorsement
dated March 17, 1958 relative to the same matter (Annex F-3), and
that this reiterated ruling of the Secretary of Education was duly noted
by the Commissioner of Civil Service on March 24, 1959 (Annex G-3);
13. That the original petition for mandamus was filed on October
11, 1958 against the Director of Public Schools and the Division
Superintendent of Schools as the stated respondents; that by virtue of
the order of the Court, dated February 16, 1959, deferring the
determination of said motion to dismiss, respondents’ answer to the
original petition was submitted to the Court on February 16, 1959; that
on February 18, 1959 petitioner filed a motion for leave to include the
Secretary of Education and the Commissioner of Civil Service as co-
respondents; that to this motion, an opposition to the same was filed
on February 20, 1959 by the original respondents; that in its order of

February 23, 1959 the Court ordered the joining of the Secretary of
Education and the Commissioner of Civil Service as additional
respondents;
14. That on February 23, 1959, petitioner submitted her
amended petition for mandamus wherein the additional respondents
have been included, to which a motion to dismiss dated April 7, 1959
was filed by the respondents and said motion to dismiss was denied
by the Court in its order of July 24, 1959, but in that same order,
petitioner was directed to amend its petition to include averments of
the cause of action against the Secretary of Education and the
Commissioner of Civil Service;
835
VOL. 7, APRIL 29, 1963 835
Yee vs. Director of Public Schools
that on July 30, 1959, an amended petition for mandamus was filed by
the petitioner against all the herein respondents and the
corresponding answer to the amended petition was submitted in
behalf of the same respondents on July 31, 1959.
x x x.
The questions to determine are whether the appellee’s removal as
public school teacher from the Buhang Elementary School, Hamtic,
Antique, is illegal; whether she has a cause of action against the
appellants and by mandamus proceedings may secure reinstatement
to her former position; and whether she has exhausted all
administrative remedies.
A cause of action exists if upon the facts alleged in a complaint
admitted by the adverse party or proved by admissible and credible
evidence a valid judgment may be rendered by a competent court. In
her petition for mandamus the appellee alleges that she was illegally
removed from her teaching position. If that allegation be established
or proved, a valid judgment may be rendered reinstating her to her
position. Hence, a cause of action exists against those responsible for
her removal from her position and the remedy of mandamus is
available to secure her reinstatement thereto.
There is, however, no doubt that her removal as a public school
teacher because of loss of Filipino citizenship is legal. Not being
included in section 671 of the Revised Administrative Code which
ADMELEC Cases
84
enumerates the officers and employees constituting the unclassified
service, teaching in a public school is in the classified service — a
public function which may be performed by Filipino citizens only. An
applicant for admission to examination for entrance into the civil
service must be a citizen of the Philippines (section 675 of the Revised
Administrative Code). And after he had qualified himself to be eligible
for appointment to a civil service position and had been appointed to
such position, he must continue to be such citizen. A voluntary change
of citizenship or a change thereof by operation of law disqualifies him
to continue holding the civil service position to which he had qualified
and had been appointed. Such being the case, upon the appellee’s
marriage on 10 August 1957 to Ng Foo alias
836
836 SUPREME COURT REPORTS ANNOTATED
Yee vs. Director of Public Schools
Pio Chet Yee, a Chinese citizen, the appellee ceased to be a citizen
of the Philippines, and for that reason she is no longer qualified to
continue holding the civil service position to which she had qualified
and had been appointed.
Section 681 of the Revised Administrative Code which provides
that —
In making selection from lists of certified eligibles furnished by the
Commissioner, appointing officer shall, when other qualifications are
equal, prefer:
First. Citizens of the Philippines.
Second. Honorably discharged soldiers, sailors, and mar-
iners of the United States,
is no argument against the limitation of holding public offices to
citizens of the Philippines. The preference provided for in the section
quoted above was operative during the period before 4 July 1946 or
before the Philippines became an independent nation.
IN VIEW OF THE CONCLUSION ARRIVED AT, the point of
exhaustion of administrative remedy need not be passed upon.
The judgment appealed from is reversed and petition denied,
without pronouncement as to costs in both instances.

G.R. No. 145368. April 12, 2002.*
SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A.
DESIERTO, in his capacity as Ombudsman, respondent.
Constitutional Law; Ombudsman; Public Officers; The
Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations; Public Officer
Defined.—In sum, the Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public officer or
employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations. Neither the Constitution nor the Ombudsman Act of
1989, however, defines who public officers are. A definition of public
officers cited in jurisprudence is that provided by Mechem, a
recognized authority on the subject: A public office is the right,
authority and duty, created and conferred by law, by which, for a given
period, either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of
the public. The individual so invested is a public officer.
Same; Same; Same; The characteristics of a public office
include the delegation of sovereign functions, its creation by law and
not by contract, an oath, salary, continuance of the position, scope of
duties, and the designation of the position as an office.—The
characteristics of a public office, according to Mechem, include the
delegation of sovereign functions, its creation by law and not by
contract, an oath, salary, continuance of the position, scope of duties,
and the designation of the position as an office.
Same; Same; Same; Court holds that the National Centennial
Commission (NCC) performs executive functions.—We hold that the
NCC performs executive functions. The executive power “is generally
defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their
due observance.” The executive function, therefore, concerns the
implementation of the policies as set forth by law.
______________
*
FIRST DIVISION.
ADMELEC Cases
85
49
VOL. 381, APRIL 12, 2002 49
Laurel vs. Desierto
Same; Same; Same; The NCC was precisely created to ensure
a more coordinated and synchronized celebrations of the Philippine
Centennial and wider participation from the government and non-
government or private organizations and to rationalize the relevance
of historical links with other countries and to carry them into effect.—
E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the “need to strengthen the said
Committee to ensure a more coordinated and synchronized
celebrations of the Philippine Centennial and wider participation from
the government and non-government or private organizations.” It also
referred to the “need to rationalize the relevance of historical links with
other countries.” The NCC was precisely created to execute the
foregoing policies and objectives, to carry them into effect.
Same; Same; Same; The promotion of industrialization and full
employment is a fundamental state policy.—There can hardly be any
dispute that the promotion of industrialization and full employment is
a fundamental state policy.
Same; Same; Same; The NCC performs sovereign functions; It
is a public office and petitioner is a public officer.—Clearly, the NCC
performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
Same; Same; Same; Fact that petitioner did not receive any
compensation during his tenure is of little consequence.—That
petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a necessary
criterion for determining the nature of the position. It is not conclusive.
The salary is a mere incident and forms no part of the office. Where a
salary or fees is annexed, the office is provided for it is a naked or
honorary office, and is supposed to be accepted merely for the public
good. Hence, the office of petitioner as NCC Chair may be
characterized as an honorary office, as opposed to a lucrative office
or an office of profit, i.e., one to which salary, compensation or fees
are attached. But it is a public office, nonetheless.
PETITION for review of a decision of the Ombudsman.

The facts are stated in the opinion of the Court.
Laurel Law Offices for petitioner.
The Solicitor General for respondent.
50
50 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative
Order No. 223 “constituting a Committee for the preparation of the
National Centennial Celebration in 1998.” The Committee was
mandated “to take charge of the nationwide preparations for the
National Celebration of the Philippine Centennial of the Declaration of
Philippine Independence and the Inauguration of the Malolos
Congress.”1
Subsequently, President Fidel V. Ramos issued Executive Order
No. 128, “reconstituting the Committee for the preparation of the
National Centennial Celebrations in 1998.” It renamed the Committee
as the “National Centennial Commission.” Appointed to chair the
reconstituted Commission was Vice-President Salvador
______________
1 A.O. 223, Section 1. The same section provided for the
Committee’s composition as follows:
x x x. The Committee shall be composed of six (6) representatives
from the Presidential Commission for Culture and the Arts (PCCA),
and five (5) representatives from the Philippine Centennial
Foundation, Inc. (PCFI). They shall be appointed by the President
upon their nomination by their respective groups.
The Committee members shall elect among themselves the
Chairman and Vice-Chairman, and such other officers as they may
deem necessary.
The Committee was also granted the following duties and powers:
1. 1.To undertake the overall study, formulation and
implementation of programs and projects on the utilization of
culture, arts, and media as vehicles for value education in
the context of the Centennial Celebration;
ADMELEC Cases
86
2. 2.To act as principal coordinator for all the activities related to
awareness and celebration of the centennial;
3. 3.To constitute sub-committees and working groups which
shall undertake the implementation of the program and
projects; and
4. 4.To call upon the assistance of any government agency or
instrumentality and corporation, and to invite private
individuals and organizations to assist it in the performance
of its tasks. (Id., at Section 2.)
51
VOL. 381, APRIL 12, 2002 51
Laurel vs. Desierto
H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino
were named Honorary Chairpersons.2
Characterized as an “ad-hoc body,” the existence of the
Commission “shall terminate upon the completion of all activities
related to the Centennial Celebrations.”3 Like its predecessor
Committee, the Commission was tasked to “take charge of the
nationwide preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress.”
Per Section 6 of the Executive Order, the Commission was also
charged with the responsibility to “prepare, for approval of the
President, a Comprehensive Plan for the Centennial Celebrations
within six (6) months from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and
funding:
SEC. 3. The Commission shall be provided with technical and
administrative staff support by a Secretariat to be composed of,
among others, detailed personnel from the Presidential Management
Staff, the National Commission for Culture and the Arts, and the
National Historical Institute. Said Secretariat shall be headed by a full
time Executive Director who shall be designated by the President.
SEC. 4. The Commission shall be funded with an initial budget to
be drawn from the Department of Tourism and the president’s
Contingent Fund, in an amount to be recommended by the
Commission, and approved by the President. Appropriations for

succeeding years shall be incorporated in the budget of the Office of
the President.
______________
2 Other members of the Commission were the Secretaries of
Education, Culture and Sports, National Defense, Interior and Local
Government, Tourism, Trade and Industry, Public Works and
Highways, Transportation and Communications, and Budget and
Management, the Press Secretary, two (2) representatives each from
the Senate and the House of Representatives, two (2) representatives
from the Judiciary, the Executive Director of the National Historical
Institute, three (3) representatives from the National Commission for
Culture and Arts, three (3) representatives from the Philippine
Centennial Foundation, Inc., and other members from the government
and the private sectors, “as may be designated later.” (E.O. No. 128,
Section 1.)
3 Id., at Section 5.
52
52 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
Subsequently, a corporation named the Philippine Centennial Expo
‘98 Corporation (Expocorp) was created.4 Petitioner was
______________
4The purposes of the corporation were set forth in Article 2 of the
Articles of Incorporation, thus:
PRIMARY PURPOSE
To set up and establish the Philippine Centennial International
Exposition 1998 (EXPO ‘98), a project of the National Centennial
Commission envisioned and mandated under Executive Order No.
128, series of 1993, in the Clark Special Economic Zone (CSEZ) within
the Provinces of Pampanga and Tarlac, Philippines as created,
defined and delineated under Proclamation No. 163, series 1993, of
the President of the Philippines and furtherance of said purpose;
1. 1.To operate, administer, manage, implement, and develop
EXPO ’98 conformably to and in accordance with the
ADMELEC Cases
87
Detailed Feasibility study and Master Plan for said
Exposition prepared by DOUGLAS/GALLAGHER, INC. and
approved by the President of the Philippines;
2. 2.To exercise oversight functions and overall jurisdiction over
the operations of EXPO ’98 as well as manage and oversee
all plans, programs, and activities related to the
implementation and operation of said Exposition;
3. 3.To regulate the establishment, operation, and maintenance
of utilities, services, and infrastructure works in all the site
components of EXPO ’98 and its support facilities;
4. 4.To oversee the preparations for the implementation of the
participation of countries, groups, organizations, and entities
at EXPO ’98;
5. 5.To establish linkages with participating countries and
coordinate their programs and activities relevant to the
theme of EXPO ’98;
6. 6.To provide and prescribe the guidelines for the design and
fabrication of the pavilions of participating countries that
played a significant role in Philippine historical development
and of other participating groups, organizations, and entities
which would be reflective of the following objectives of EXPO
’98—
53
VOL. 381, APRIL 12, 2002 53
Laurel vs. Desierto
among the nine (9) Expocorp incorporators, who were also its first nine
(9) directors. Petitioner was elected Expocorp Chief Executive Officer.
______________
1. a)showcase the national vision of the Philippines, highlighted
by a rich history and culture, and its traditional heritage and
diverse cultural influences;
2. b)express eloquently the Filipinism sentiment of the Philippine
Centennial;
3. c)strengthen cultural and historical linkages between
Philippines and participating countries;
4. d)create an image of the Philippines as a country with rich
trade and tourism potentials; and

5. e)project the Filipino character and strengthen the sense of
national pride and patriotism among the Filipino people.
1. 7.To conceive and devise varied promotional strategies
towards creating awareness and appreciation of EXPO ’98
as the centerpiece of the national celebrations in 1998 of the
centennial of the declaration of Philippine Independence and
beyond that as a permanent site for the Filipino people to
honor their rich heritage;
2. 8.To encourage and invite the active and meaningful
participation of the private sector in managing and
overseeing EXPO ’98; and
3. 9.To forge strategic partnerships and joint ventures with local
and international investors and developers in the
development, maintenance, operation, and management of
EXPO ’98 on a turn-key basis.
SECONDARY PURPOSES
1. (1)To purchase, acquire, own, lease, sell and convey real
properties such as lands, buildings, factories and
warehouses and machineries, equipment and other
personal properties as may be necessary or incidental to the
conduct of the corporate business, and to pay in cash,
shares of its capital stock, debentures and other evidences
of indebtedness, or other securities, as may be deemed
expedient, for any business or property acquired by the
corporation.
2. (2)To borrow or raise money necessary to meet the financial
requirements of its business by the issuance of bonds,
promissory
54
54 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
On August 5, 1998, Senator Ana Dominique Coseteng delivered a
privilege speech in the Senate denouncing alleged anomalies in
______________
ADMELEC Cases
88
1. notes and other evidences of indebtedness, and to secure the
repayment thereof by mortgage, pledge, deed of trust or lien
upon the properties of the corporation or to issue pursuant
to law shares of its capital stock, debentures and other
evidences of indebtedness in payment for properties
acquired by the corporation or for money borrowed in the
prosecution of its lawful business;
2. (3)To invest and deal with the money and properties of the
corporation in such manner as may from time to time be
considered wise or expedient for the advancement of its
interests and to sell, dispose of or transfer the business,
properties and goodwill of the corporation or any part thereof
for such consideration and under such terms as it shall see
fit to accept;
3. (4)To aid in any manner any corporation, association, or trust
estate, domestic or foreign, or any firm or individual, any
shares of stock in which or any bonds, debentures, notes,
securities, evidences of indebtedness, contracts, or
obligations of which are held by or for this corporation,
directly or indirectly or through other corporations or
otherwise;
4. (5)To enter into any lawful arrangement for sharing profits,
union of interest, unitization or farmout agreement,
reciprocal concession, or cooperation, with any corporation,
association, partnership, syndicate, entity, person or
governmental, municipal or public authority, domestic or
foreign, in the carrying on of any business or transaction
deemed necessary, convenient or incidental to carrying out
any of the purposes of this corporation;
5. (6)To acquire or obtain from any government or authority,
national, provincial, municipal or otherwise, or a corporation,
company or partnership or person, such charter, contracts,
franchise, privileges, exemption, licenses and concessions
as may be conducive to any of the objects of the corporation;
6. (7)To establish and operate one or more branch offices of
agencies and to carry on any or all of its operations and
business without any restrictions as to place or amount
including the right to hold, purchase or otherwise acquire,
lease, mortgage, pledge and convey or otherwise deal in

with real and personal property anywhere within the
Philippines;
7. (8)To conduct and transact any and all lawful business, and
to do or cause to be done any one or more of the acts and
things
55
VOL. 381, APRIL 12, 2002 55
Laurel vs. Desierto
the construction and operation of the Centennial Exposition Project at
the Clark Special Economic Zone. Upon motion of Senator Franklin
Drilon, Senator Coseteng’s privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The
Blue Ribbon Committee) and several other Senate Committees for
investigation.
On February 24, 1999, President Joseph Estrada issued
Administrative Order No. 35, creating an ad hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was
appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with
the Secretary of the Senate its Committee Final Report No. 30 dated
February 26, 1999. Among the Committee’s recommendations was
“the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair
of NCC and of EXPOCORP for violating the rules on public bidding,
relative to the award of centennial contracts to AK (Asia Construction
& Development Corp.); for exhibiting manifest bias in the issuance of
the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring)
even in the absence of a valid contract that has caused material injury
to government and for participating in the scheme to preclude audit by
COA of the funds infused by the government for the implementation
of the said contracts all in violation . . . of the anti-graft law.”5
Later, on November 5, 1999, the Saguisag Committee issued its
own report. It recommended “the further investigation by the
Ombudsman, and indictment, in proper cases of,” among others, NCC
Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No.
______________
ADMELEC Cases
89
herein set forth as its purposes, within or without the Philippines,
and in any and all foreign countries, and to do everything necessary,
desirable or incidental to the accomplishment of the purposes or the
exercise of any one or more of the powers herein enumerated, or
which shall at any time appear conducive to or expedient for the
protection or benefit of this corporation.
5 Rollo, p. 10.
56
56 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and
Article 217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag
Committee were apparently referred to the Fact-finding and
Intelligence Bureau of the Office of the Ombudsman. On January 27,
2000, the Bureau issued its Evaluation Report, recommending:
1. 1.That a formal complaint be filed and preliminary
investigation be conducted before the Evaluation and
Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair
Salvador H. Laurel, former EXPOCORP President Teodoro
Q. Peña and AK President Edgardo H. Angeles for violation
of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation
to PD 1594 and COA Rules and Regulations;
2. 2.That the Fact Finding and Intelligence Bureau of this Office,
act as the nominal complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of
the Evaluation and Preliminary Investigation Bureau, directed
petitioner to submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the
Ombudsman a Motion to Dismiss questioning the jurisdiction of said
office.
In an Order dated June 13, 2000, the Ombudsman denied
petitioner’s motion to dismiss.

On July 3, 2000, petitioner moved for a reconsideration of the June
13, 2000 Order but the motion was denied in an Order dated October
5, 2000.
On October 25, 2000, petitioner filed the present petition for
certiorari.
On November 14, 2000, the Evaluation and Preliminary
Investigation Bureau issued a resolution finding “probable cause to
indict respondents SALVADOR H. LAUREL and TEODORO Q. PEÑA
before the Sandiganbayan for conspiring to violate Section 3(e) of
Republic Act No. 3019, in relation to Republic Act No. 1594.” The
______________
6 Id., at 134-135.
57
VOL. 381, APRIL 12, 2002 57
Laurel vs. Desierto
resolution also directed that an information for violation of the said law
be filed against Laurel and Peña. Ombudsman Aniano A. Desierto
approved the resolution with respect to Laurel but dismissed the
charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a
temporary restraining order, commanding respondents to desist from
filing any information before the Sandiganbayan or any court against
petitioner for alleged violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner,
heard the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground
that he is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER
LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT
AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED,
WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED
OR CONTROLLED CORPORATION.
B.
ADMELEC Cases
90
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT
A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF
EXPOCORP WAS NOT A “PUBLIC OFFICER” AS DEFINED UNDER
THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision in Uy
vs. Sandiganbayan,9 where it was held that the jurisdiction of the
Ombudsman was limited to cases cognizable by the Sandi-
______________
7 Id., at 15.
8 Id., at 296-297.
9 312 SCRA 77 (1999).
58
58 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
ganbayan, i.e., over public officers of Grade 27 and higher. As
petitioner’s position was purportedly not classified as Grade 27 or
higher, the Sandiganbayan and, consequently, the Ombudsman,
would have no jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision
in Uy, we held that “it is the prosecutor, not the Ombudsman, who has
the authority to file the corresponding information/s against petitioner
in the regional trial court. The Ombudsman exercises prosecutorial
powers only in cases cognizable by the Sandiganbayan.”
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority
of the State and regular provincial and city prosecutors under the
Department of Justice to have control over prosecution of cases falling
within the jurisdiction of the regular courts. The investigation and
prosecutorial powers of the Ombudsman relate to cases rightfully
falling within the jurisdiction of the Sandiganbayan under Section 15
(1) of R.A. 6770 (“An Act Providing for the Functional and Structural
Organization of the Office of the Ombudsman, and for other
purposes”) which vests upon the Ombudsman “primary jurisdiction

over cases cognizable by the Sandiganbayan...” And this is further
buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to “conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan.” Thus, repeated references to the
Sandiganbayan’s jurisdiction clearly serve to limit the Ombudsman’s
and Special Prosecutor’s authority to cases cognizable by the
Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside
the foregoing pronouncement in its Resolution dated March 20, 2001.
The Court explained the rationale for this reversal:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or omission
appears to be illegal, unjust, improper or inefficient. The law does not
make a distinction between cases cognizable by the Sandiganbayan
and those cognizable by regular courts. It has been held that the
clause “any illegal act or omission
59
VOL. 381, APRIL 12, 2002 59
Laurel vs. Desierto
of any public official” is broad enough to embrace any crime committed
by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and
Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as
confining the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction
over cases cognizable by the Sandiganbayan. The law defines such
primary jurisdiction as authorizing the Ombudsman “to take over, at
any stage, from any investigatory agency of the government, the
investigation of such cases.” The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving
ADMELEC Cases
91
public officers and employees by other courts. The exercise by the
Ombudsman of his primary jurisdiction over cases cognizable by the
Sandiganbayan is not incompatible with the discharge of his duty to
investigate and prosecute other offenses committed by public officers
and employees. Indeed, it must be stressed that the powers granted
by the legislature to the Ombudsman are very broad and encompass
all kinds of malfeasance, misfeasance and non-feasance committed
by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should
not be equated with the limited authority of the Special Prosecutor
under Section 11 of RA 6770. The Office of the Special Prosecutor is
merely a component of the Office of the Ombudsman and may only
act under the supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary investigation and to
prosecute is limited to criminal cases within the jurisdiction of the
Sandiganbayan. Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to these
types of cases. The Ombudsman is mandated by law to act on all
complaints against officers and employees of the government and to
enforce their administrative, civil and criminal liability in every case
where the evidence warrants. To carry out this duty, the law allows
him to utilize the personnel of his office and/or designate any fiscal,
state prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and prosecution
of certain cases. Those designated or deputized to assist him work
under his supervision and control. The law likewise allows him to direct
the Special Prosecutor to prosecute cases outside the
Sandiganbayan’s jurisdiction in accordance with Section 11 (4c) of RA
6770.
60
60 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
The prosecution of offenses committed by public officers and
employees is one of the most important functions of the Ombudsman.
In passing RA 6770, the Congress deliberately endowed the
Ombudsman with such power to make him a more active and effective
agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent.
[Emphasis in the original.]

Having disposed of this contention, we proceed to the principal
grounds upon which petitioner relies. We first address the argument
that petitioner, as Chair of the NCC, was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as
“protectors of the people,” who “shall act promptly on complaints filed
in any form or manner against public officials or employees of the
government, or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations.” Among the
awesome powers, functions, and duties vested by the
Constitution11 upon the Office of the Ombudsman is to “[i]nvestigate...
any act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust, improper, or
inefficient.”
The foregoing constitutional provisions are substantially
reproduced in R.A. No. 6770, otherwise known as the “Ombudsman
Act of 1989.” Sections 13 and 15(1) of said law respectively provide:
SEC. 13. Mandate.—The Ombudsman and his Deputies, as
protectors of the people shall act promptly on complaints file in any
form or manner against officers or employees of the Government, or
of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the
evidence warrants in order to promote efficient service by the
Government to the people.
SEC. 15. Powers, Functions and Duties.—The Office of the
Ombudsman shall have the following powers, functions and duties:
(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
______________
10
ART. XI, SEC. 12.
11 ART. XI, SEC. 13 (1).
61
VOL. 381, APRIL 12, 2002 61
Laurel vs. Desierto
ADMELEC Cases
92
Sandiganbayan and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory agency of Government,
the investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in
relation to Section 13, supra:
SEC. 16. Applicability.—The provisions of this Act shall apply to all
kinds of malfeasance, misfeasance and non-feasance that have been
committed by any officer or employee as mentioned in Section 13
hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public officer or
employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations.12
Neither the Constitution nor the Ombudsman Act of 1989,
however, defines who public officers are. A definition of public officers
cited in jurisprudence13 is that provided by Mechem, a recognized
authority on the subject:
A public office is the right, authority and duty, created and conferred
by law, by which, for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is invested with some
portion
______________
12 Section 22 extends these investigatory powers, under certain
conditions, to private persons:
SEC. 22. Investigatory Power.—The Office of the Ombudsman shall
have the power to investigate any serious misconduct in office
allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment or over
Members of Congress, and the Judiciary.
In all cases of conspiracy between an officer or employee of the
government and a private person, the Ombudsman and his Deputies
shall have jurisdiction to include such private person as the evidence
may warrant. The officer or employee and the private person shall be
tried jointly and shall be subject to the same penalties and liabilities.

13
E.g., Fernandez vs. Ledesma, 1 SCRA 620 (1963); Aparri vs.
Court of Appeals, 127 SCRA 231 (1984).
62
62 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
of the sovereign functions of the government, to be exercised by him
for the benefit of the public. The individual so invested is a public
officer.14
The characteristics of a public office, according to Mechem, include
the delegation of sovereign functions, its creation by law and not by
contract, an oath, salary, continuance of the position, scope of duties,
and the designation of the position as an office.15
Petitioner submits that some of these characteristics are not
present in the position of NCC Chair, namely: (1) the delegation of
sovereign functions; (2) salary, since he purportedly did not receive
any compensation; and (3) continuance, the tenure of the NCC being
temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as “[t]he most important
characteristic” in determining whether a position is a public office or
not.
The most important characteristic which distinguishes an office from
an employment or contract is that the creation and conferring of an
office involves a delegation to the individual of some of the sovereign
functions of government, to be exercised by him for the benefit of the
public;—that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred are of
this nature, the individual is not a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign functions
of government? Certainly, the law did not delegate upon the NCC
functions that can be described as legislative or judicial. May the
functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive
power “is generally defined as the power to enforce and administer the
laws. It is the power of carrying the laws into practi-
______________
ADMELEC Cases
93
14F.R. MECHEM, A TREATISE ON THE LAW OF PUBLIC
OFFICES AND OFFICERS, §1.
15 Id., at §§4-10. See also 63C Am Jur 2d, Public Officers and
Employees §1.
16 Id., at §4.
63
VOL. 381, APRIL 12, 2002 63
Laurel vs. Desierto
cal operation and enforcing their due observance.” 17 The executive
function, therefore, concerns the implementation of the policies as set
forth by law.
The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:
SEC. 15. Arts and letters shall enjoy the patronage of the State. The
State shall conserve, promote, and popularize the nation’s historical
and cultural heritage and resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of
the Committee for the National Centennial Celebrations in 1998:
WHEREAS, the birth of the Republic of the Philippines is to be
celebrated in 1998, and the centennial presents an important vehicle
for fostering nationhood and a strong sense of Filipino identity;
WHEREAS, the centennial can effectively showcase Filipino
heritage and thereby strengthen Filipino values;
WHEREAS, the success of the Centennial Celebrations may be
insured only through long-range planning and continuous
developmental programming;
WHEREAS, the active participation of the private sector in all
areas of special expertise and capability, particularly in
communication and information dissemination, is necessary for long-
range planning and continuous developmental programming;
WHEREAS, there is a need to create a body which shall initiate
and undertake the primary task of harnessing the multisectoral
components from the business, cultural, and business sectors to serve
as effective instruments from the launching and overseeing of this
long-term project;
x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the “need to strengthen the said
Committee to ensure a more coordinated and synchronized
celebrations of the Philippine Centennial and wider participation from
the government and non-government or private organiza-
______________
17 Ople vs. Torres, 293 SCRA 141 (1998).
64
64 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
tions.” It also referred to the “need to rationalize the relevance of
historical links with other countries.”
The NCC was precisely created to execute the foregoing policies
and objectives, to carry them into effect. Thus, the Commission was
vested with the following functions:
1. (a)To undertake the overall study, conceptualization,
formulation and implementation of programs and projects on
the utilization of culture, arts, literature and media as
vehicles for history, economic endeavors, and reinvigorating
the spirit of national unity and sense of accomplishment in
every Filipino in the context of the Centennial Celebrations.
In this regard, it shall include a Philippine National Exposition
‘98 within Metro Manila, the original eight provinces, and
Clark Air Base as its major venues;
2. (b)To act as principal coordinator for all the activities related
to awareness and celebration of the Centennial;
3. (c)To serve as the clearing house for the preparation and
dissemination of all information about the plans and events
for the Centennial Celebrations;
4. (d)To constitute working groups which shall undertake the
implementation of the programs and projects;
5. (e)To prioritize the refurbishment of historical sites and
structures nationwide. In this regard, the Commission shall
formulate schemes (e.g. lease-maintained-and-transfer,
build-operate-transfer, and similar arrangements) to ensure
the preservation and maintenance of the historical sites and
structures;
ADMELEC Cases
94
6. (f)To call upon any government agency or instrumentality and
corporation, and to invite private individuals and
organizations to assist it in the performance of its tasks; and,
7. (g)Submit regular reports to the President on the plans,
programs, projects, activities as well as the status of the
preparations for the Celebration.18
It bears noting the President, upon whom the executive power is
vested,19 created the NCC by executive order. Book III (Office of the
President), Chapter 2 (Ordinance Power), Section 2 describes the
nature of executive orders:
______________
18 Id., at Sec. 2.
19 CONSTITUTION, ARTICLE VII, SECTION 1.
65
VOL. 381, APRIL 12, 2002 65
Laurel vs. Desierto
SEC. 2. Executive Orders.—Acts of the President providing for rules
of a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders. [Italics ours.]
Furthermore, the NCC was not without a role in the country’s
economic development, especially in Central Luzon. Petitioner himself
admitted as much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former
President Ramos, don’t you agree that the
task of the centennial commission was also to
focus on the long term over all socio economic
development of the zone and Central Luzon by
attracting investors in the area because of the
eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H.
LAUREL:

I am glad Your Honor touched on that because
that is something I wanted to touch on by lack
of material time I could not but that is a very
important point. When I was made Chairman I
wanted the Expo to be in Batangas because I
am a Batangeño but President Ramos said Mr.
Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt.
Pinatubo let us try to catalize [sic] economic
recovery in that area by putting this Expo in
Clark Field and so it was done I agreed and
Your Honor if I may also mention we wanted to
generate employment aside from attracting
business investments and employment. And
the Estrada administration decided to junk this
project there 48, 40 thousand people who lost
job, they were employed in Expo. And our
target was to provide 75 thousand jobs. It
would have really calibrated, accelerated the
development of Central Luzon. Now, I think
they are going back to that because they had
the airport and there are plan to revive the
Expo site into key park which was the original
plan.
There can hardly be any dispute that the promotion of industrialization
and full employment is a fundamental state policy.20
______________
20
Article XII (National Economy and Patrimony) of the Constitution
provides:
Section 1. x x x.
66
66 SUPREME COURT REPORTS ANNOTATED
ADMELEC Cases
95
Laurel vs. Desierto
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that
the holding by a municipality of a town fiesta is a proprietary rather
than a governmental function. Petitioner argues that the “holding of a
nationwide celebration which marked the nation’s 100th birthday may
be likened to a national fiesta which involved only the exercise of the
national government’s proprietary function.”22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised
Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate
a religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general welfare of
the public performed in pursuance of a policy of the state. The mere
fact that the celebration, as claimed, was not to secure profit or gain
but merely to provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is not a source
of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the
like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes
of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to
be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government
in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta.
______________
The State shall promote industrialization and full employment based
on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign
markets. x x x.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to develop.
x x x.

21 85 SCRA 599 (1978).
22 Rollo, p. 466.
67
VOL. 381, APRIL 12, 2002 67
Laurel vs. Desierto
Torio, however, did not intend to lay down an all-encompassing
doctrine. Note that the Court cautioned that “there can be no hard and
fast rule for purposes of determining the true nature of an undertaking
or function of a municipality; the surrounding circumstances of a
particular case are to be considered and will be decisive.” Thus, in
footnote 15 of Torio, the Court, citing an American case, illustrated
how the “surrounding circumstances plus the political, social, and
cultural backgrounds” could produce a conclusion different from that
in Torio:
We came across an interesting case which shows that surrounding
circumstances plus the political, social, and cultural backgrounds may
have a decisive bearing on this question. The case of Pope v. City of
New Haven, et al. was an action to recover damages for personal
injuries caused during a Fourth of July fireworks display resulting in
the death of a bystander alleged to have been caused by defendants’
negligence. The defendants demurred to the complaint invoking the
defense that the city was engaged in the performance of a public
governmental duty from which it received no pecuniary benefit and for
negligence in the performance of which no statutory liability is
imposed. This demurrer was sustained by the Superior Court of New
Haven Country. Plaintiff sought to amend his complaint to allege that
the celebration was for the corporate advantage of the city. This was
denied. In affirming the order, the Supreme Court of Errors of
Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent
performance of purely public governmental duties, unless made liable
by statute. . . .
A municipality corporation, which under permissive authority of its
charter or of statute, conducted a public Fourth of July celebration,
including a display of fireworks, and sent up a bomb intended to
explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance
of a governmental duty. (99 A.R. 51)
ADMELEC Cases
96
This decision was concurred in by three Judges while two
dissented.
At any rate the rationale of the Majority Opinion is evident from
[this] excerpt:
“July 4th, when that date falls upon Sunday, July 5th, is made a
public holiday, called Independence Day, by our statutes. All or nearly
all of the other states have similar statutes. While there is no United
States statute making a similar provision, the different departments of
the government recognize, and have recognized since the
government was estab-
68
68 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
lished, July 4th as a national holiday. Throughout the country it has
been recognized and celebrated as such. These celebrations,
calculated to entertain and instruct the people generally and to arouse
and stimulate patriotic sentiments and love of country, frequently take
the form of literary exercises consisting of patriotic speeches and the
reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon and
followed by fireworks. That such celebrations are of advantage to the
general public and their promotion a proper subject of legislation can
hardly be questioned. x x x”
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to
commemorate the birth of our nation after centuries of struggle against
our former colonial master, to memorialize the liberation of our people
from oppression by a foreign power. 1998 marked 100 years of
independence and sovereignty as one united nation. The Celebrations
was an occasion to reflect upon our history and reinvigorate our
patriotism. As A.O. 223 put it, it was a “vehicle for fostering nationhood
and a strong sense of Filipino identity,” an opportunity to “showcase
Filipino heritage and thereby strengthen Filipino values.” The
significance of the Celebrations could not have been lost on petitioner,
who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we
wanted to rekindle the love for freedom, love for country, that is the
over-all goal that has to make everybody feel proud that he is a

Filipino, proud of our history, proud of what our forefather did in their
time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public
office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during
his tenure is of little consequence. A salary is a usual but not a
necessary criterion for determining the nature of the position. It is not
conclusive. The salary is a mere incident and forms no part of the
office. Where a salary or fees is annexed, the office is provided for it
is a naked or honorary office, and is supposed to be accepted merely
for the public good.23 Hence, the office of petitioner as NCC
______________
23 Id., at §§7, 15. See also Triste vs. Leyte State College Board of
Trustees, 192 SCRA 326 (1990).
69
VOL. 381, APRIL 12, 2002 69
Laurel vs. Desierto
Chair may be characterized as an honorary office, as opposed to a
lucrative office or an office of profit, i.e., one to which salary,
compensation or fees are attached.24 But it is a public office,
nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128
as an “ad-hoc body” make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration,
and certainly a position which is merely temporary and local cannot
ordinarily be considered an office. “But,” says Chief Justice Marshall,
“if a duty be a continuing one, which is defined by rules prescribed by
the government and not by contract, which an individual is appointed
by government to perform, who enters on the duties pertaining to his
station without any contract defining them, if those duties continue
though the person be changed,—it seems very difficult to distinguish
such a charge or employment from an office of the person who
performs the duties from an officer.”
At the same time, however, this element of continuance can not be
considered as indispensable, for, if the other elements are present “it
can make no difference,” says PEARSON, C.J., “whether there be but
one act or a series of acts to be done,—whether the office expires as
ADMELEC Cases
97
soon as the one act is done, or is to be held for years or during good
behavior.”25
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.26 There the Supreme Court of Rhode Island ruled that the
office of Commissioner of the United States Centennial Commission
is an “office of trust” as to disqualify its holder as elector of the United
States President and Vice-President. (Under Article II of the United
States Constitution, a person holding an office of trust or profit under
the United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial
Commission holds an office of trust under the United States, and that
he
______________
24 Id., at §13.
25 Id., at §8. Emphasis supplied.
26 23 Am Rep. 538 (1876).
70
70 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
is therefore disqualified for the office of elector of President and Vice-
President of the United States.
The commission was created under a statute of the United States
approved March 3, 1871. That statute provides for the holding of an
exhibition of American and foreign arts, products, and manufactures,
“under the auspices of the government of the United States,” and for
the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, “whose
functions shall continue until close of the exhibition,” and “whose duty
it shall be to prepare and superintend the execution of the plan for
holding the exhibition.” Under the statute the commissioners are
appointed by the President of the United States, on the nomination of
the governor of the States and Territories respectively. Various duties
were imposed upon the commission, and under the statute provision
was to be made for it to have exclusive control of the exhibit before
the President should announce, by proclamation, the date and place
of opening and holding the exhibition. By an act of Congress approved
June 1st, 1872, the duties and functions of the commission were

further increased and defined. That act created a corporation, called
“The Centennial Board of Finance,” to cooperate with the commission
and to raise and disburse the funds. It was to be organized under the
direction of the commission. The seventh section of the act provides
“that the grounds for exhibition shall be prepared and the buildings
erected by the corporation, in accordance with plans which shall have
been adopted by the United States Centennial Commission; and the
rules and regulations of said corporation, governing rates for entrance
and admission fees, or otherwise affecting the rights, privileges, or
interests of the exhibitors, or of the public, shall be fixed and
established by the United States Centennial Commission; and no
grant conferring rights or privileges of any description connected with
said grounds or buildings, or relating to said exhibition or celebration,
shall be made without the consent of the United States Centennial
Commission, and said commission shall have power to control,
change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums.” The tenth section of the act
provides that “it shall be the duty of the United States Centennial
Commission to supervise the closing up of the affairs of said
corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial
exhibition.”
It is apparent from this statement, which is but partial, that the
duties and functions of the commission were various, delicate, and
important; that they could be successfully performed only by men of
large experience and knowledge of affairs; and that they were not
merely subordinate and provisional, but in the highest degree
authoritative, discretion-
71
VOL. 381, APRIL 12, 2002 71
Laurel vs. Desierto
ary, and final in their character. We think that persons performing such
duties and exercising such functions, in pursuance of statutory
direction and authority, are not to be regarded as mere employees,
agents, or committee men, but that they are, properly speaking,
officers, and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by Congress;
for the act under which they were appointed declares, section 7, that
“no compensation for services shall be paid to the commissioners
ADMELEC Cases
98
or other officers, provided for in this act, from the treasury of the United
States.” The only other officers provided for were the “alternates”
appointed to serve as commissioners when the commissioners were
unable to attend.
Having arrived at the conclusion that the NCC performs executive
functions and is, therefore, a public office, we need no longer delve at
length on the issue of whether Expocorp is a private or a public
corporation. Even assuming that Expocorp is a private corporation,
petitioner’s position as Chief Executive Officer (CEO) of Expocorp
arose from his Chairmanship of the NCC. Consequently, his acts or
omissions as CEO of Expocorp must be viewed in the light of his
powers and functions as NCC Chair.27
Finally, it is contended that since petitioner supposedly did not
receive any compensation for his services as NCC or Expocorp Chair,
he is not a public officer as defined in Republic Act No. 3019 (The Anti-
Graft and Corrupt Practices Act) and is, therefore, beyond the
jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3
(e) of said law, which reads:
SEC. 3. Corrupt practices of public officers.—In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official, administrative
or judicial functions through manifest partiality, evident bad faith or
gross inexcusable negligence. This provision shall apply to officers
and employees of offices
______________
27 See Yasay vs. Desierto, 300 SCRA 494 (1998).
72
72 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
or government corporations charged with the grant of licenses or
permits or other concessions.

A “public officer,” under R.A. No. 3019, is defined by Section 2 of said
law as follows:
SEC. 2. Definition of terms.—As used in this Act, the term—
xxx
(b) “Public officer” includes elective and appointive officials and
employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even
nominal, from the government as defined in the preceding paragraph.
[Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a “public
officer” is expressly limited to the application of R.A. No. 3019. Said
definition does not apply for purposes of determining the
Ombudsman’s jurisdiction, as defined by the Constitution and the
Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer
under the Anti-Graft and Corrupt Practices Act involves the
appreciation of evidence and interpretation of law, matters that are
best resolved at trial.
To illustrate, the use of the term “includes” in Section 2 (b)
indicates that the definition is not restrictive.28 The Anti-Graft and
Corrupt Practices Act is just one of several laws that define “public
officers.” Article 203 of the Revised Penal Code, for example, provides
that a public officer is:
x x x any person who, by direct provision of law, popular election or
appointment by competent authority, takes part in the performance of
public functions in the Government of Philippines, or performs in said
Government or in any of its branches public duties as an employee,
agent or subordinate” official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative
Code of 1987,29 on the other hand, states:
______________
28 Preclaro vs. Sandiganbayan, 247 SCRA 454 (1995).
29 Executive Order No. 292.
73
VOL. 381, APRIL 12, 2002 73
Laurel vs. Desierto
ADMELEC Cases
99
Officer—as distinguished from “clerk” or “employee”, refers to a
person whose duties not being of a clerical or manual nature, involves
the exercise of discretion in the performance of the functions of the
government. When used with reference to a person having authority
to do a particular act or perform a particular person in the exercise of
governmental power, “officer” includes any government employee,
agent or body having authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The
Code of Conduct and Ethical Standards for Public Officials and
Employees), one may be considered a “public official” whether or not
one receives compensation, thus:
“Public Officials” include elective and appointive officials and
employees, permanent or temporary, whether in the career or non-
career service including military and police personnel, whether or not
they receive compensation, regardless of amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is
exclusive, the term “compensation,” which is not defined by said law,
has many meanings.
Under particular circumstances, “compensation” has been held to
include allowance for personal expenses, commissions, expenses,
fees, an honorarium, mileage or traveling expenses, payments for
services, restitution or a balancing of accounts, salary, and wages.30
How then is “compensation,” as the term is used in Section 2 (b) of
R.A. No. 3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair?
Granting that petitioner did not receive any salary, the records do not
reveal if he received any allowance, fee, honorarium, or some other
form of compensation. Notably, under the by-laws of Expocorp, the
CEO is entitled to per diems and compensation.31 Would such fact
bear any significance?
______________
30 15 C.J.S. Compensation, p. 654.
31 Rollo, p. 470.
74

74 SUPREME COURT REPORTS ANNOTATED
Tan vs. People
Obviously, this proceeding is not the proper forum to settle these
issues lest we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary
injunction issued in the Court’s Resolution dated September 24, 2001
is hereby LIFTED.
SO ORDERED.
G.R. Nos. 147026-27. September 11, 2009.*
CAROLINA R. JAVIER, petitioner, vs. THE FIRST DIVISION OF THE
SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES,
respondents.
Criminal Procedure; Motions to Quash; Well-established is the
rule that when a motion to quash in a criminal case is denied, the
remedy is not a petition for certiorari, but for petitioners to go to trial,
without prejudice to reiterating the special defenses invoked in their
motion to quash—remedial measures as regards interlocutory orders,
such as a motion to quash, are frowned upon and often dismissed.—
A motion to quash an Information is the mode by which an accused
assails the validity of a criminal complaint or Information filed against
him for insufficiency on its face in point of law, or for defects which are
apparent in the face of the Information. Well-established is the rule
that when a motion to quash in a criminal case is denied, the remedy
is not a petition for certiorari, but for petitioners to go to trial, without
prejudice to reiterating the special defenses invoked in their motion to
quash. Remedial measures as regards interlocutory orders, such as a
motion to quash, are frowned upon and often dismissed. The evident
reason for this rule is to avoid multiplicity of appeals in a single action.
The above general rule, however admits of several exceptions, one of
which is when the court, in denying the motion to dismiss or motion to
quash, acts without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. The reason is that it would
be unfair to require the defendant or accused to undergo the ordeal
and expense of a trial if the court has no jurisdiction over the subject
matter or offense, or is not the court of proper venue, or if the denial
of the motion to dismiss or motion to quash is made with grave abuse
of discretion or a whimsical and capricious exercise of judgment. In
such cases, the ordinary remedy of appeal cannot be plain and
adequate.
ADMELEC Cases
100
Public Officers; National Book Development Board (NBDB);
Book Publishing Industry Development Act (Republic Act No. 8047);
Words and Phrases; A public office is the right, authority and duty,
created and conferred by law, by which, for a given period, either
_______________
* THIRD DIVISION.
325
VOL. 599, SEPTEMBER 11, 2009 325
Javier vs. Sandiganbayan, First Division
fixed by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the
public.—The NBDB is the government agency mandated to develop
and support the Philippine book publishing industry. It is a statutory
government agency created by R.A. No. 8047, which was enacted into
law to ensure the full development of the book publishing industry as
well as for the creation of organization structures to implement the said
policy. To achieve this end, the Governing Board of the NBDB was
created to supervise the implementation. The Governing Board was
vested with powers and functions, to wit: x x x A perusal of the above
powers and functions leads us to conclude that they partake of the
nature of public functions. A public office is the right, authority and
duty, created and conferred by law, by which, for a given period, either
fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public officer.
Same; Same; Same; The fact that the accused was appointed
as member of the National Book Development Board (NBDB) from the
public sector and not from the other branches or agencies of the
government does not take her position outside the meaning of a public
office; The purpose of the law for appointing members from the private
sector is to ensure that they are also properly represented in the
implementation of government objectives to cultivate the book
publishing industry.—Notwithstanding that petitioner came from the
private sector to sit as a member of the NBDB, the law invested her
with some portion of the sovereign functions of the government, so

that the purpose of the government is achieved. In this case, the
government aimed to enhance the book publishing industry as it has
a significant role in the national development. Hence, the fact that she
was appointed from the public sector and not from the other branches
or agencies of the government does not take her position outside the
meaning of a public office. She was appointed to the Governing Board
in order to see to it that the purposes for which the law was enacted
are achieved. The Governing Board acts collectively and carries out
its mandate as one body. The purpose of the law for appointing
members from the private sector is to ensure that they
326
326 SUPREME COURT REPORTS
ANNOTATED
Javier vs. Sandiganbayan, First Division
are also properly represented in the implementation of
government objectives to cultivate the book publishing industry.
Same; Same; Same; Anti-Graft and Corrupt Practices Act
(Republic Act No. 3019); Words and Phrases; The Court is not
unmindful of the definition of a public officer pursuant to the Anti-Graft
Law, which provides that a public officer includes elective and
appointive officials and employees, permanent or temporary, whether
in the classified or unclassified or exempt service receiving
compensation, even nominal, from the government; Under the Anti-
Graft Law, the nature of one’s appointment, and whether the
compensation one receives from the government is only nominal, is
immaterial because the person so elected or appointed is still
considered a public officer.—The Court is not unmindful of the
definition of a public officer pursuant to the Anti-Graft Law, which
provides that a public officer includes elective and appointive officials
and employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even nominal,
from the government. Thus, pursuant to the Anti-Graft Law, one is a
public officer if one has been elected or appointed to a public office.
Petitioner was appointed by the President to the Governing Board of
the NDBD. Though her term is only for a year that does not make her
private person exercising a public function. The fact that she is not
receiving a monthly salary is also of no moment. Section 7, R.A. No.
8047 provides that members of the Governing Board shall receive per
diem and such allowances as may be authorized for every meeting
ADMELEC Cases
101
actually attended and subject to pertinent laws, rules and regulations.
Also, under the Anti-Graft Law, the nature of one’s appointment, and
whether the compensation one receives from the government is only
nominal, is immaterial because the person so elected or appointed is
still considered a public officer.
Same; Same; Same; Same; Same; The Revised Penal Code
defines a public officer as any person who, by direct provision of the
law, popular election, popular election or appointment by competent
authority, shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed
to be a public officer.—The Revised Penal Code defines a public
officer as any person who, by direct provision of the law, popular
327
VOL. 599, SEPTEMBER 11, 2009 327
Javier vs. Sandiganbayan, First Division
election, popular election or appointment by competent authority,
shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed
to be a public officer. Where, as in this case, petitioner performs public
functions in pursuance of the objectives of R.A. No. 8047, verily, she
is a public officer who takes part in the performance of public functions
in the government whether as an employee, agent, subordinate
official, of any rank or classes. In fact, during her tenure, petitioner
took part in the drafting and promulgation of several rules and
regulations implementing R.A. No. 8047. She was supposed to
represent the country in the canceled book fair in Spain.
Criminal Law; Double Jeopardy; Requisites; It is elementary that
for double jeopardy to attach, the case against the accused must have
been dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon valid information sufficient
in form and substance and the accused pleaded to the charge.—
Records show that the Informations in Criminal Case Nos. 25867 and
25898 refer to offenses penalized by different statues, R.A. No. 3019
and RPC, respectively. It is elementary that for double jeopardy to
attach, the case against the accused must have been dismissed or

otherwise terminated without his express consent by a court of
competent jurisdiction, upon valid information sufficient in form and
substance and the accused pleaded to the charge. In the instant case,
petitioner pleaded not guilty to the Information for violation of the Anti-
Graft Law. She was not yet arraigned in the criminal case for
malversation of public funds because she had filed a motion to quash
the latter information. Double jeopardy could not, therefore, attach
considering that the two cases remain pending before the
Sandiganbayan and that herein petitioner had pleaded to only one in
the criminal cases against her. It is well-settled that for a claim of
double jeopardy to prosper, the following requisites must concur: (1)
there is a complaint or information or other formal charge sufficient in
form and substance to sustain a conviction; (2) the same is filed before
a court of competent jurisdiction; (3) there is a valid arraignment or
plea to the charges; and (4) the accused is convicted or acquitted or
the case is otherwise dismissed or terminated without his express
consent. The third and fourth requisites are not present in the case at
bar.
238
238 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Salomon, Gonong, Dela Cruz Law Offices for petitioner.
The Solicitor General for respondent.
PERALTA, J.:
Before the Court is a petition for certiorari1 under Rule 65 of the
Rules of Court filed by petitioner Carolina R. Javier in Criminal Case
Nos. 25867 and 25898, entitled “People of the Philippines, Plaintiff
versus Carolina R. Javier, Accused,” seeking to nullify respondent
Sandiganbayan’s: (1) Order2 dated November 14, 2000 in Criminal
Case No. 25867, which denied her Motion to Quash Information; (2)
Resolution3 dated January 17, 2001 in Criminal Case No. 25898,
which denied her Motion for Reconsideration and Motion to Quash
Information; and (3) Order4 dated February 12, 2001, declaring that a
motion for reconsideration in Criminal Case No. 25898 would be
superfluous as the issues are fairly simple and straightforward.
The factual antecedents follow.
ADMELEC Cases
102
On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise
known as the “Book Publishing Industry Development Act,” was
enacted into law. Foremost in its policy is the State’s goal in promoting
the continuing development of the book publishing industry, through
the active participation of
_______________
1 Rollo, pp. 3-24.
2 Id., at p. 26.
3 Id., at pp. 27-28.
4 Id., at pp. 29-30.
5 “AN ACT PROVIDING FOR THE DEVELOPMENT OF THE BOOK
PUBLISHING INDUSTRY THROUGH THE FORMULATION AND IMPLEMENTATION
OF A NATIONAL BOOK POLICY AND A NATIONAL BOOK DEVELOPMENT
PLAN”; Records, Vol. I (Crim. Case No. 25867), pp. 101-107.
329
VOL. 599, SEPTEMBER 11, 2009 329
Javier vs. Sandiganbayan, First Division
the private sector, to ensure an adequate supply of affordable, quality-
produced books for the domestic and export market.
To achieve this purpose, the law provided for the creation of the
National Book Development Board (NBDB or the Governing Board,
for brevity), which shall be under the administration and supervision of
the Office of the President. The Governing Board shall be composed
of eleven (11) members who shall be appointed by the President of
the Philippines, five (5) of whom shall come from the government,
while the remaining six (6) shall be chosen from the nominees of
organizations of private book publishers, printers, writers, book
industry related activities, students and the private education sector.
On February 26, 1996, petitioner was appointed to the Governing
Board as a private sector representative for a term of one (1)
year.6 During that time, she was also the President of the Book
Suppliers Association of the Philippines (BSAP). She was on a hold-
over capacity in the following year. On September 14, 1998, she was
again appointed to the same position and for the same period of one
(1) year.7 Part of her functions as a member of the Governing Board
is to attend book fairs to establish linkages with international book
publishing bodies. On September 29, 1997, she was issued by the
Office of the President a travel authority to attend the Madrid

International Book Fair in Spain on October 8-12, 1997.8 Based on her
itinerary of travel,9 she was paid P139,199.0010 as her travelling
expenses.
Unfortunately, petitioner was not able to attend the scheduled
international book fair.
_______________
6 Records, Vol. I (Crim. Case No. 25867), p. 90.
7 Records, Vol. I (Crim. Case No. 25867), pp. 91-92.
8 Id., at p. 122.
9 Id., at p. 123.
10 Per Check No. 10188-AY; Id., at p 125.
330
330 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
On February 16, 1998, Resident Auditor Rosario T. Martin advised
petitioner to immediately return/refund her cash advance considering
that her trip was canceled.11 Petitioner, however, failed to do so. On
July 6, 1998, she was issued a Summary of Disallowances12 from
which the balance for settlement amounted to P220,349.00. Despite
said notice, no action was forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive
Director of the NBDB, filed with the Ombudsman a complaint against
petitioner for malversation of public funds and properties. She averred
that despite the cancellation of the foreign trip, petitioner failed to
liquidate or return to the NBDB her cash advance within sixty (60) days
from date of arrival, or in this case from the date of cancellation of the
trip, in accordance with government accounting and auditing rules and
regulations. Dr. Apolonio further charged petitioner with violation of
Republic Act (R.A.) No. 671313 for failure to file her Statement of
Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for
violation of Section 3(e) of R.A. No. 3019,14 as amended, and
recommended the filing of the corresponding information. 15 It,
however, dismissed for insufficiency of evidence, the charge for
violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged
with violation of Section 3(e) of R.A. No. 3019 before the
Sandiganbayan, to wit:
ADMELEC Cases
103
_______________
11 Id., at p. 126.
12 Id., at p. 127.
13 Otherwise known as the “Code of Conduct and Ethical
Standards for Public Officials and Employees.”
14 Otherwise known as the “Anti-Graft and Corrupt Practices Act.”
15 Resolution dated February 18, 2000; Records, Vol. I (Crim.
Case No. 25867), pp. 5-10.
331
VOL. 599, SEPTEMBER 11, 2009 331
Javier vs. Sandiganbayan, First Division
“That on or about October 8, 1997, or for sometime prior or
subsequent thereto, in the City of Quezon, Philippines and within the
jurisdiction of this Honorable Court, the aforenamed accused, a public
officer, being then a member of the governing Board of the National
Book Development Board (NBDB), while in the performance of her
official and administrative functions, and acting with evident bad faith
or gross inexcusable negligence, did then and there willfully,
unlawfully and criminally, without any justifiable cause, and despite
due demand by the Resident Auditor and the Executive Director of
NBDB, fail and refuse to return and/or liquidate her cash advances
intended for official travel abroad which did not materialize, in the total
amount of P139,199.00 as of September 23, 1999, as required under
EO No. 248 and Sec. 5 of COA Circular No. 97-002 thereby causing
damage and undue injury to the Government.
CONTRARY TO LAW.”16
The case was docketed as Criminal Case No. 25867 and raffled to
the First Division.
Meanwhile, the Commission on Audit charged petitioner with
Malversation of Public Funds, as defined and penalized under Article
217 of the Revised Penal Code, for not liquidating the cash advance
granted to her in connection with her supposed trip to Spain. During
the conduct of the preliminary investigation, petitioner was required to
submit her counter-affidavit but she failed to do so. The Ombudsman
found probable cause to indict petitioner for the crime charged and
recommended the filing of the corresponding information against
her.17

Thus, an Information dated February 29, 2000 was filed before the
Sandiganbayan, which was docketed as Criminal Case No. 25898,
and raffled to the Third Division, the accusatory portion of which reads:
_______________
16 Records, Vol. II (Crim. Case No. 25867), pp. 1-2.
17 Resolution dated February 29, 2000; Records, Vol. I, (Crim
Case No. 25898), pp. 4-8.
332
332 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
“That on or about and during the period from October 8, 1997 to
February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book Development
Board and as such, is accountable for the public funds she received
as cash advance in connection with her trip to Spain from October 8-
12, 1997, per LBP Check No. 10188 in the amount of P139,199.00,
which trip did not materialize, did then and there willfully, unlawfully
and feloniously take, malverse, misappropriate, embezzle and convert
to her own personal use and benefit the aforementioned amount of
P139,199.00, Philippine currency, to the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.”18
During her arraignment in Criminal Case No. 25867, petitioner
pleaded not guilty. Thereafter, petitioner delivered to the First Division
the money subject of the criminal cases, which amount was deposited
in a special trust account during the pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal
Case No. 25898 on May 16, 2000 in order to determine jurisdictional
issues. On June 3, 2000, petitioner filed with the same Division a
Motion for Consolidation19 of Criminal Case No. 25898 with Criminal
Case No. 25867, pending before the First Division. On July 6, 2000,
the People filed an Urgent Ex-Parte Motion to Admit Amended
Information20 in Criminal Case No. 25898, which was granted.
Accordingly, the Amended Information dated June 28, 2000 reads as
follows:
ADMELEC Cases
104
“That on or about and during the period from October 8, 1997 to
February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honor-
_______________
18 Records, Vol. I (Crim Case No. 25898), pp. 1-2.
19 Id., at pp. 31-32.
20 Id., at p. 45.
333
VOL. 599, SEPTEMBER 11, 2009 333
Javier vs. Sandiganbayan, First Division
able Court, the above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book Development
Board equated to Board Member II with a salary grade 28 and as
such, is accountable for the public funds she received as case
advance in connection with her trip to Spain from October 8-12, 1997,
per LBP Check No. 10188 in the amount of P139,199.00, which trip
did not materialize, did then and there willfully, unlawfully and
feloniously take, malverse, misappropriate, embezzle and convert to
her own personal use and benefit the aforementioned amount of
P139,199.00, Philippine currency, to the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.”21
In its Resolution dated October 5, 2000, the Third Division ordered
the consolidation of Criminal Case No. 25898 with Criminal Case No.
25867. 22
On October 10, 2000, petitioner filed a Motion to Quash
Information,23 averring that the Sandiganbayan has no jurisdiction to
hear Criminal Case No. 25867 as the information did not allege that
she is a public official who is classified as Grade “27” or higher. Neither
did the information charge her as a co-principal, accomplice or
accessory to a public officer committing an offense under the
Sandiganbayan’s jurisdiction. She also averred that she is not a public
officer or employee and that she belongs to the Governing Board only
as a private sector representative under R.A. No. 8047, hence, she
may not be charged under R.A. No. 3019 before the Sandiganbayan
or under any statute which covers public officials. Moreover, she

claimed that she does not perform public functions and is without any
administrative or political power to speak of—that she is serving the
private book publishing industry by advancing their interest as
participant in the government’s book development policy.
_______________
21 Id., at p. 46.
22 Id., at p. 52.
23 Rollo, pp. 40-50.
334
334 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
In an Order24 dated November 14, 2000, the First Division25 denied
the motion to quash with the following disquisition:
“The fact that the accused does not receive any compensation in
terms of salaries and allowances, if that indeed be the case, is not the
sole qualification for being in the government service or a public
official. The National Book Development Board is a statutory
government agency and the persons who participated therein even if
they are from the private sector, are public officers to the extent that
they are performing their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that
monies were advanced to the accused in her capacity as Director of
the National Book Development Board for purposes of official travel.
While indeed under ordinary circumstances a member of the board
remains a private individual, still when that individual is performing her
functions as a member of the board or when that person receives
benefits or when the person is supposed to travel abroad and is given
government money to effect that travel, to that extent the private sector
representative is a public official performing public functions; if only for
that reason, and not even considering situation of her being in
possession of public funds even as a private individual for which she
would also covered by provisions of the Revised Penal Code, she is
properly charged before this Court.”
On November 15, 2000, the First Division accepted the
consolidation of the criminal cases against petitioner and scheduled
her arraignment on November 17, 2000, for Criminal Case No. 25898.
On said date, petitioner manifested that she is not prepared to accept
ADMELEC Cases
105
the propriety of the accusation since it refers to the same subject
matter as that covered in Criminal Case No. 25867 for which the
Sandiganbayan gave her time to file a motion to quash. On November
22, 2000, petitioner filed a Motion to Quash the Information 26 in
Criminal Case No. 25898, by invoking her right against double jeop-
_______________
24 Rollo, p. 26.
25 Composed of then Presiding Justice Francis E. Garchitorena,
Associate Justices Catalino R. Castañeda, Jr. and Gregory S. Ong.
26 Id., at p. 55-58.
335
VOL. 599, SEPTEMBER 11, 2009 335
Javier vs. Sandiganbayan, First Division
ardy. However, her motion was denied in open court. She then filed a
motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a
Resolution27 denying petitioner’s motion with the following
disquisition:
“The accused is under the jurisdiction of this Court because Sec.
4 (g) of P.D. 1606 as amended so provides, thus:
Sec. 4. Jurisdiction.—The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
xxxx
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
xxxx
The offense is office-related because the money for her travel
abroad was given to her because of her Directorship in the National
Book Development Board.
Furthermore, there are also allegations to hold the accused liable
under Article 222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions.—
The provisions of this chapter shall apply to private
individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and
to any administrator or depository of funds or property attached

, seized or deposited by public authority, even if such property
belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal Case
No. 25898 on the ground of litis pendencia is denied since in this
instance, these two Informations speak of offenses under different
statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of
which precludes prosecution of the other.”
Petitioner hinges the present petition on the ground that the
Sandiganbayan has committed grave abuse of discretion
_______________
27 Rollo, pp. 27-28.
336
336 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
amounting to lack of jurisdiction for not quashing the two informations
charging her with violation of the Anti-Graft Law and the Revised Penal
Code on malversation of public funds. She advanced the following
arguments in support of her petition, to wit: first, she is not a public
officer, and second, she was being charged under two (2)
informations, which is in violation of her right against double jeopardy.
A motion to quash an Information is the mode by which an accused
assails the validity of a criminal complaint or Information filed against
him for insufficiency on its face in point of law, or for defects which are
apparent in the face of the Information.28
Well-established is the rule that when a motion to quash in a
criminal case is denied, the remedy is not a petition for certiorari, but
for petitioners to go to trial, without prejudice to reiterating the special
defenses invoked in their motion to quash. Remedial measures as
regards interlocutory orders, such as a motion to quash, are frowned
upon and often dismissed. The evident reason for this rule is to avoid
multiplicity of appeals in a single action.29
The above general rule, however admits of several exceptions,
one of which is when the court, in denying the motion to dismiss or
motion to quash, acts without or in excess of jurisdiction or with grave
abuse of discretion, then certiorari or prohibition lies. The reason is
that it would be unfair to require the defendant or accused to undergo
the ordeal and expense of a trial if the court has no jurisdiction over
ADMELEC Cases
106
the subject matter or offense, or is not the court of proper venue, or if
the denial of the motion to dismiss or motion to quash is made with
grave abuse of discretion or a whimsical and capri-
_______________
28 Ariel Los Baños, et al. v. Joel Pedro, G.R. No. 173588, April 22,
2009, 586 SCRA 303.
29 Serana v. Sandiganbayan, G.R. No. 162059, January 22, 2008,
542 SCRA 224.
337
VOL. 599, SEPTEMBER 11, 2009 337
Javier vs. Sandiganbayan, First Division
cious exercise of judgment. In such cases, the ordinary remedy of
appeal cannot be plain and adequate.30
To substantiate her claim, petitioner maintained that she is not a
public officer and only a private sector representative, stressing that
her only function among the eleven (11) basic purposes and
objectives provided for in Section 4, R.A. No. 8047, is to obtain
priority status for the book publishing industry. At the time of her
appointment to the NDBD Board, she was the President of the BSAP,
a book publishers association. As such, she could not be held liable
for the crimes imputed against her, and in turn, she is outside the
jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and
support the Philippine book publishing industry. It is a statutory
government agency created by R.A. No. 8047, which was enacted into
law to ensure the full development of the book publishing industry as
well as for the creation of organization structures to implement the said
policy. To achieve this end, the Governing Board of the NBDB was
created to supervise the implementation. The Governing Board was
vested with powers and functions, to wit:
“a) assume responsibility for carrying out and implementing the
policies, purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies
and guidelines for undertaking activities relative to promoting book
development, production and distribution as well as an incentive
scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that
editors, compilers and especially authors are paid justly and promptly

royalties due them for reproduction of their works in any form and
number and for whatever purpose;
_______________
30 Newsweek, Inc. v. Intermediate Appellate Court, No. L-63559,
May 30, 1986, 142 SCRA 171.
338
338 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
d) conduct or contract research on the book publishing industry
including monitoring, compiling and providing data and information of
book production;
e) provide a forum for interaction among private publishers, and,
for the purpose, establish and maintain liaison will all the segments of
the book publishing industry;
f) ask the appropriate government authority to ensure effective
implementation of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this
Act in consultation with other agencies concerned, except for Section
9 hereof on incentives for book development, which shall be the
concern of appropriate agencies involved;
h) approve, with the concurrence of the Department of Budget
and Management (DBM), the annual and supplemental budgets
submitted to it by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and
personal property for the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper
administration of its affairs, the conduct of its operations or the
accomplishment of its purposes and objectives;
k) receive donations, grants, legacies, devices and similar
acquisitions which shall form a trust fund of the Board to accomplish
its development plans on book publishing;
l) import books or raw materials used in book publishing which
are exempt from all taxes, customs duties and other charges in behalf
of persons and enterprises engaged in book publishing and its related
activities duly registered with the board;
ADMELEC Cases
107
m) promulgate rules and regulations governing the matter in
which the general affairs of the Board are to be exercised and amend,
repeal, and modify such rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for
the positions of the Executive Officer and Deputy Executive Officer of
the Board;
o) adopt rules and procedures and fix the time and place for
holding meetings: Provided, That at least one (1) regular meeting shall
be held monthly;339
VOL. 599, SEPTEMBER 11, 2009 339
Javier vs. Sandiganbayan, First Division
p) conduct studies, seminars, workshops, lectures, conferences,
exhibits, and other related activities on book development such as
indigenous authorship, intellectual property rights, use of alternative
materials for printing, distribution and others; and
q) exercise such other powers and perform such other duties as
may be required by the law.”31
A perusal of the above powers and functions leads us to conclude
that they partake of the nature of public functions. A public office is
the right, authority and duty, created and conferred by law, by which,
for a given period, either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some portion of
the sovereign functions of the government, to be exercised by
him for the benefit of the public. The individual so invested is a
public officer.32
Notwithstanding that petitioner came from the private sector to sit
as a member of the NBDB, the law invested her with some portion of
the sovereign functions of the government, so that the purpose of the
government is achieved. In this case, the government aimed to
enhance the book publishing industry as it has a significant role in the
national development. Hence, the fact that she was appointed from
the public sector and not from the other branches or agencies of the
government does not take her position outside the meaning of a public
office. She was appointed to the Governing Board in order to see to it
that the purposes for which the law was enacted are achieved. The
Governing Board acts collectively and carries out its mandate as one
body. The purpose of the law for appointing members from the private

sector is to ensure that they are also properly represented in the
implemen-
_______________
31 R.A. 8047, Sec. 8; records, Vol. I (Crim. Case No. 25867), pp.
103-104.
32 F.R. Mechem, A Treatise on the Law of Public Offices and
Officers, Sec. 1.
340
340 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
tation of government objectives to cultivate the book publishing
industry.
Moreover, the Court is not unmindful of the definition of a public
officer pursuant to the Anti-Graft Law, which provides that a public
officer includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or
exempt service receiving compensation, even nominal, from the
government.33
Thus, pursuant to the Anti-Graft Law, one is a public officer if one
has been elected or appointed to a public office. Petitioner was
appointed by the President to the Governing Board of the NDBD.
Though her term is only for a year that does not make her private
person exercising a public function. The fact that she is not receiving
a monthly salary is also of no moment. Section 7, R.A. No. 8047
provides that members of the Governing Board shall receive per diem
and such allowances as may be authorized for every meeting actually
attended and subject to pertinent laws, rules and regulations. Also,
under the Anti-Graft Law, the nature of one’s appointment, and
whether the compensation one receives from the government is only
nominal, is immaterial because the person so elected or appointed is
still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer
as any person who, by direct provision of the law, popular election,
popular election or appointment by competent authority, shall take part
in the performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in any of its
branches public duties as an employee, agent, or subordinate official,
of any rank or classes, shall be deemed to be a public officer.34
ADMELEC Cases
108
Where, as in this case, petitioner performs public functions in
pursuance of the objectives of R.A. No. 8047, verily, she is a public
officer who takes part in the performance of public
_______________
33 R.A. No. 3019, Sec. 2 (b).
34 REVISED PENAL CODE, Art. 203.
341
VOL. 599, SEPTEMBER 11, 2009 341
Javier vs. Sandiganbayan, First Division
functions in the government whether as an employee, agent,
subordinate official, of any rank or classes. In fact, during her tenure,
petitioner took part in the drafting and promulgation of several rules
and regulations implementing R.A. No. 8047. She was supposed to
represent the country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question
for the Court to resolve is whether, as a public officer, petitioner is
within the jurisdiction of the Sandiganbayan.
Presently,35 the Sandiganbayan has jurisdiction over the following:
“Sec. 4. Jurisdiction.—The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other
known as the Anti-Graft and Corrupt Practices Act, Republic
Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time
of the commission of the offense:
_______________
35 On June 11, 1978, then President Ferdinand E. Marcos
promulgated Presidential Decree (P.D.) No. 1486 which created the
Sandiganbayan. The Whereas Clause of the decree aimed to attain
the highest norms of official conduct required of public officers and
employees, based on the concept that public officers and employees
shall serve with the highest degree of responsibility, integrity, loyalty
and efficiency and shall remain at all times accountable to the People.
On December 10, 1978, P.D. No. 1486 was amended by P.D. No.
1606 which expanded the jurisdiction of the Sandiganbayan.

Thereafter, P.D. No. 1861 amended P.D. No. 1606 on March 23, 1983,
which decree further altered the Sandiganbayan jurisdiction. On
March 30, 1995, Republic Act (R.A.) No. 7975 was approved, making
succeeding amendments to P.D. No. 1606, which was again amended
on February 5, 1997 by R.A. No. 8249. Section 4 of which further
modified the jurisdiction of the Sandiganbayan.
342
342 SUPREME COURT REPORTS ANNOTATED
Javier vs. Sandiganbayan, First Division
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise classified as
Grade “27” and higher, of the Compensation and Position
Classification Act of 989 (Republic Act No. 6758), specifically
including:
xxxx
(2) Members of Congress and officials thereof classified
as Grade “Grade 27” and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commission, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade
“Grade “27” and higher under the Compensation and Position
Classification Act of 1989.
x x x x”
Notably, the Director of Organization, Position Classification and
Compensation Bureau, of the Department of Budget and management
provided the following information regarding the compensation and
position classification and/or rank equivalence of the member of the
Governing Board of the NBDB, thus:
“Per FY 1999 Personal Services Itemization, the Governing Board of
NDBD is composed of one (1) Chairman (ex officio), one (1) Vice-
Chairman (ex officio), and nine (9) Members, four (4) of whom are ex
officio and the remaining five (5) members represent the private
sector. The said five members of the Board do not receive any salary
ADMELEC Cases
109
and as such their position are not classified and are not assigned any
salary grade.
For purposes however of determining the rank equivalence of said
positions, notwithstanding that they do not have any salary grade
assignment, the same may be equated to Board Member II, SG-28.”36
_______________
36 Records, Vol. I (Crim Case No. 25898), p. 36.
343
VOL. 599, SEPTEMBER 11, 2009 343
Javier vs. Sandiganbayan, First Division
Thus, based on the Amended Information in Criminal Case No.
25898, petitioner belongs to the employees classified as SG-28,
included in the phrase “all other national and local officials classified
as ‘Grade 27’ and higher under the Compensation and Position
Classification Act of 1989.”
Anent the issue of double jeopardy, We can not likewise give in to
the contentions advanced by petitioner. She argued that her right
against double jeopardy was violated when the Sandiganbayan
denied her motion to quash the two informations filed against her.
We believe otherwise. Records show that the Informations in
Criminal Case Nos. 25867 and 25898 refer to offenses penalized by
different statues, R.A. No. 3019 and RPC, respectively. It is
elementary that for double jeopardy to attach, the case against the
accused must have been dismissed or otherwise terminated without
his express consent by a court of competent jurisdiction, upon valid
information sufficient in form and substance and the accused pleaded
to the charge.37 In the instant case, petitioner pleaded not guilty to the
Information for violation of the Anti-Graft Law. She was not yet
arraigned in the criminal case for malversation of public funds because
she had filed a motion to quash the latter information. Double jeopardy
could not, therefore, attach considering that the two cases remain
pending before the Sandiganbayan and that herein petitioner had
pleaded to only one in the criminal cases against her.
It is well settled that for a claim of double jeopardy to prosper, the
following requisites must concur: (1) there is a complaint or information
or other formal charge sufficient in form and substance to sustain a
conviction; (2) the same is filed before a court of competent
 110

jurisdiction; (3) there is a valid arraignment or plea to the charges; and ATTY. DINDO G. VENTURANZA, Petitioner,
(4) the accused is convicted or acquitted or the case is otherwise vs.
dismissed or OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity
_______________ as the Secretary of the Department of Justice, CLARO A.
ARELLANO, in his capacity as the Prosecutor General, and
37 Cabo v. Sandiganbayan, G.R. No. 169509, June 16, 2006, 491 RICHARD ANTHONY D. FADULLON, in his capacity as the
SCRA 264. Officer-in-Charge of the Office of the City Prosecutor of Quezon
City, Respondents.
344
344 SUPREME COURT REPORTS ANNOTATED x-----------------------x
Javier vs. Sandiganbayan, First Division
terminated without his express consent.38 The third and fourth G.R. No. 209138
requisites are not present in the case at bar.
In view of the foregoing, We hold that the present petition does not IRMA A. VILLANUEVA and FRANCISCA B.
fall under the exceptions wherein the remedy of certiorari may be ROSQUITA, Petitioners,
resorted to after the denial of one’s motion to quash the information. vs.
And even assuming that petitioner may avail of such remedy, We still COURT OF APPEALS and THE OFFICE OF THE
hold that the Sandiganbayan did not commit grave abuse of discretion PRESIDENT, Respondents.
amounting to lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned
x-----------------------x
Resolutions and Order of the Sandiganbayan are AFFIRMED. Costs
against petitioner.
SO ORDERED. G.R. No. 212030

EDDIE U. TAMONDONG, Petitioner,

vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.
G.R. No. 203372 June 16, 2015
DECISION
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,
vs. CARPIO, J.:
OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL
JOSE ANSELMO I. CADIZ, Respondents. The present consolidated cases involve four petitions: G.R. No.
203372 with Atty. Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil),
x-----------------------x who was appointed State Solicitor II at the Office of the Solicitor
General (OSG), as petitioner; G.R. No. 206290 with Atty. Dindo G.
G.R. No. 206290 Venturanza (Atty. Venturanza), who was appointed Prosecutor IV
(City Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with
Irma A. Villanueva (Villanueva), who was appointed Administrator for

ADMELEC Cases

Visayas of the Board of Administrators of the Cooperative
Development Authority (CDA), and Francisca B. Rosquita
(Rosquita), who was appointed Commissioner of the National
Commission of Indigenous Peoples (NCIP), as petitioners; and G.R.
No. 212030 with Atty. Eddie U. Tamondong (Atty. Tamondong), who
was appointed member of the Board of Directors of the Subic Bay
Metropolitan Authority (SBMA), as petitioner. All petitions question
the constitutionality of Executive Order No. 2 (EO 2) for being
inconsistent with Section 15, Article VII of the 1987 Constitution.
Petitioners seek the :reversal of the separate Decisions of the Court
of Appeals (CA) that dismissed their petitions and upheld the
constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-
Garafil is a Petition for Review on Certiorari, 1 assailing the
Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No.
123662. G.R. No. 206290 filed by Atty. Venturanza is a Petition for
Review on Certiorari,3 assailing the Decision4 dated 31 August 2012
and Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No.
123659. G.R. No. 209138 filed by Villanueva and Rosquita is a
Petition for Certiorari,6 seeking to nullify the Decision7 dated 28
August 2013 of the CA in CA-G.R. SP Nos. 123662, 123663, and
123664.8 Villanueva and Rosquita filed a Petition-in-Intervention in
the consolidated cases before the CA. G.R. No. 212030 is a Petition
for Review on Certiorari,9 assailing the Decision10 dated 31 August
2012 of the CA in CAG.R. SP No. 123664 and Resolution11 dated 7
April 2014 of the CA in CAG.R. SP Nos. 123662, 123663, and
123664.12
Facts of the Cases
Prior to the conduct of the May 2010 elections, then President Gloria
Macapagal-Arroyo (President Macapagal-Arroyo) issued more than
800 appointments to various positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the
1987 Constitution reads:
Two months immediately before the next presidential elections and
up to the end of his term, a President or Acting President shall not
ADMELEC Cases
111
make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public
service or endanger public safety.
Thus, for purposes of the 2010 elections, 10 March 2010 was the
cutoff date for valid appointments and the next day, 11 March 2010,
was the start of the ban on midnight appointments. Section 15,
Article VII of the 1987 Constitution recognizes as an exception to the
ban on midnight appointments only "temporary appointments to
executive positions when continued vacancies therein will prejudice
public service or endanger public safety." None of the petitioners
claim that their appointments fall under this exception.
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafil's appointment as State
Solicitor II at the OSG was dated 5 March 2010.13 There was a
transmittal letter dated 8 March 2010 of the appointment paper from
the Office of the President (OP), but this transmittal letter was
received by the Malacañang Records Office (MRO) only on 13 May
2010. There was no indication as to the OSG's date of receipt of the
appointment paper. On 19 March 2010, the OSG's Human
Resources Department called up Atty. Velicaria-Garafil to schedule
her oath-taking. Atty. Velicaria-Garafil took her oath of office as State
Solicitor II on 22 March 2010 and assumed her position on 6 April
2010.
G.R. No. 206290
The paper evidencing Atty. Venturanza's appointment as Prosecutor
IV (City Prosecutor) of Quezon City was dated 23 February 2010.14 It
is apparent, however, that it was only on 12 March 2010 that the OP,
in a letter dated 9 March 2010, transmitted Atty. Venturanza's
appointment paper to then Department of Justice (DOJ) Secretary
Alberto C. Agra.15 During the period between 23 February and 12
March 2010, Atty. Venturanza, upon verbal advice from Malacañang
of his promotion but without an official copy of his appointment
 112

paper, secured clearances from the Civil Service Commission 206290

(CSC),16 Sandiganbayan,17 and the DOJ.18 Atty. Venturanza took his 12 March 15 March
(Atty. 23 February 2010 9 March 2010 15 March 2010
oath of office on 15 March 2010, and assumed office on the same 2010 2010
Venturanza)
day.
209138 13 April
3 March 2010 4 May 2010
G.R. No. 209138 (Villanueva) 2010
209138 18 March
The paper evidencing Villanueva's appointment as Administrator for 5 March 2010 13 May 2010
(Rosquita) 2010
Visayas of the Board of Administrators of the CDA was dated 3
212030
March 2010.19 There was no transmittal letter of the appointment 25 March
(Atty.
paper from the OP. Villanueva took her oath of office on 13 April 1 March 2010 2010 and
2010. Tamondong) 6 July 2010

The paper evidencing Rosquita's appointment as Commissioner, Issuance of EO 2

representing Region I and the Cordilleras, of the NCIP was dated 5
March 2010.20 Like Villanueva, there was no transmittal letter of the On 30 June 2010, President Benigno S. Aquino III (President
appointment paper from the OP. Rosquita took her oath of office on Aquino) took his oath of office as President of the Republic of the
18 March 2010. G.R. No. 212030 Philippines. On 30 July 2010, President Aquino issued EO 2
recalling, withdrawing, and revoking appointments issued by
The paper evidencing Atty. Tamondong's appointment as member, President Macapagal-Arroyo which violated the constitutional ban on
representing the private sector, of the SBMA Board of Directors was midnight appointments.
dated 1 March 2010.21 Atty. Tamondong admitted that the
appointment paper was received by the Office of the SBMA Chair on The entirety of EO 2 reads:
25 March 201022 and that he took his oath of office on the same
day.23 He took another oath of office on 6 July 2010 as "an act of
extra caution because of the rising crescendo of noise from the new EXECUTIVE ORDER NO. 2
political mandarins against the so-called 'midnight appointments."'24
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS
To summarize, the pertinent dates for each petitioner are as follows: ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION
OF THE CONSTITUTIONAL BAN ON MIDNIGHT
APPOINTMENTS, AND FOR OTHER PURPOSES.
G.R. No. Date of Date of Date of Date of Assumption of
Appointment Transmittal Receipt by Oath of Office
WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides
Letter Letter MRO Office that "Two months immediately before the next presidential elections
203372 and up to the end of his term, a President or Acting President shall
22 March not make appointments, except temporary appointments to executive
(Atty. Velicaria- 5 March 2010 8 March 2010 13 May 2010 6 April 2010
2010 positions when continued vacancies therein will prejudice public
Garafil)
service or endanger public safety."; WHEREAS, in the case of "In re:
Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and

ADMELEC Cases

Hon. Vallarta as Judges of the Regional Trial Court of Branch 62 of
Bago City and Branch 24 of Cabanatuan City, respectively" (A.M.
No. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this
provision to mean that the President is neither required to make
appointments nor allowed to do so during the two months
immediately before the next presidential elections and up to the end
of her term. The only known exceptions to this prohibition are (1)
temporary appointments in the executive positions when continued
vacancies will prejudice public service or endanger public safety and
in the light of the recent Supreme Court decision in the case of De
Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010,
(2) appointments to the Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides
that:
"Section 261. Prohibited Acts.-The following shall be guilty of an
election offense:
(g) Appointments of new employees, creation of new
position, promotion, or giving salary increases. -
During the period of forty-five days before a regular
election and thirty days before a special election.
(1) Any head, official or appointing officer of a
government office, agency or instrumentality,
whether national or local, including government-
owned or controlled corporations, who appoints or
hires any new employee, whether provisional,
temporary or casual, or creates and fills any new
position, except upon prior authority to the
Commission. The Commission shall not grant the
authority sought unless it is satisfied that the position
to be filled is essential to the proper functioning of
the office or agency concerned, and that the position
shall not be filled in a manner that may influence the
election.
ADMELEC Cases
113
As an exception to the foregoing provisions, a new
employee may be appointed in the case of urgent
need:
Provided, however, that notice of the appointment
shall be given to the Commission within three days
from the date of the appointment. Any appointment
or hiring in violation of this provision shall be null and
void.
(2) Any government official who promotes or gives
any increase of salary or remuneration or privilege to
any government official or employee, including those
in government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of appointments
were made on or about 10 March 2010 in complete disregard of the
intent and spirit of the constitutional ban on midnight appointment
and which deprives the new administration of the power to make its
own appointment;
WHEREAS, based on established jurisprudence, an appointment is
deemed complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is
necessary to uphold the principle that appointments to the civil
service must be made on the basis of merit and fitness, it is
imperative to recall, withdraw, and revoke all appointments made in
violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the
powers vested in me by the Constitution as President of the
Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. - The following
appointments made by the former President and other appointing
authorities in departments, agencies, offices, and instrumentalities,
including government-owned or controlled corporations, shall be
considered as midnight appointments:

(a) Those made on or after March 11, 2010,
including all appointments bearing dates prior to
March 11, 2010 where the appointee has accepted,
or taken his oath, or assumed public office on or
after March 11, 2010, except temporary
appointments in the executive positions when
continued vacancies will prejudice public service or
endanger public safety as may be determined by the
appointing authority.
(b) Those made prior to March 11, 2010, but to take
effect after said date or appointments to office that
would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the
period of 45 days prior to the May 10, 2010 elections
in violation of Section 261 of the Omnibus Election
Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight
Appointments. Midnight appointments, as defined under Section 1,
are hereby recalled, withdrawn, and revoked. The positions covered
or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. - When necessary to maintain
efficiency in public service and ensure the continuity of government
operations, the Executive Secretary may designate an officer-in-
charge (OIC) to perform the duties and discharge the responsibilities
of any of those whose appointment has been recalled, until the
replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders,
rules and regulations or part thereof inconsistent with the provisions
of this Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this
executive order shall be declared unconstitutional or invalid, the
other sections or provision not affected thereby shall remain in full
force and effect.
ADMELEC Cases
114
SECTION 6. Effectivity. - This Executive order shall take effect
immediately.
DONE in the City of Manila, this 30th day of July, in the year Two
Thousand and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor
General (Sol. Gen. Cadiz). On 6 August 2010, Sol. Gen. Cadiz
instructed a Senior Assistant Solicitor General to inform the officers
and employees affected by EO 2 that they were terminated from
service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without
any knowledge of her termination. She was made to return the office-
issued laptop and cellphone, and was told that her salary ceased as
of 7 August 2010. On 12 August 2010, Atty. Velicaria-Garafil was
informed that her former secretary at the OSG received a copy of a
memorandum on her behalf. The memorandum, dated 9 August
2010, bore the subject "Implementation of Executive Order No. 2
dated 30 July 2010" and was addressed to the OSG's Director of
Finance and Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327)
before this Court on 1 September 2010. The petition prayed for the
nullification of EO 2, and for her reinstatement as State Solicitor II
without loss of seniority, rights and privileges, and with full
backwages from the time that her salary was withheld.26

G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile
transmission an undated copy of DOJ Order No. 556. DOJ Order No.
556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima),
designated Senior Deputy State Prosecutor Richard Anthony D.
Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of the
City Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15
September 2010, Atty. Venturanza asked for clarification of his
status, duties, and functions since DOJ Order No. 556 did not
address the same. Atty. Venturanza also asked for a status quo ante
order to prevent Pros. Fadullon ·from usurping the position and
functions of the City Prosecutor of Quezon City. Atty. Venturanza
also wrote a letter to President Aquino on the same day, and sought
reaffirmation of his promotion as City Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25
August 2010 from Sec. De Lima which directed him to relinquish the
office to which he was appointed, and to cease from performing its
functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus
with Urgent Prayer for Status Quo Ante Order, Temporary
Restraining Order and/or Preliminary Mandatory Injunction (G.R. No.
193 867) before this Court on 14 October 2010.27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the
basis of EO 2. On 3 August 2010, Villanueva and Rosquita sought to
intervene in G.R. No. 192991.28 On 1 October 2010, Executive
Secretary Paquito N. Ochoa, Jr. revoked Rosquita's appointment as
NCIP Commissioner.29 On 13 October 2010, Villanueva and
Rosquita notified this Court that they wanted to intervene in Atty.
Tamondong's petition (G.R. No. 192987) instead.
G.R. No. 212030
ADMELEC Cases
115
Atty. Tamondong was removed from the SBMA Board of Directors
on 30 July 2010. He filed a petition for prohibition, declaratory relief
and preliminary injunction with prayer for temporary restraining order
(G.R. No. 192987) before this Court on 9 August 2010. The petition
prayed for the prohibition of the implementation of EO 2, the
declaration of his appointment as legal, and the declaration of EO 2
as unconstitutional.30
Referral to CA
There were several petitions31 and motions for intervention32 that
challenged the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the
petitions, motions for intervention, as well as various letters, to the
CA for further proceedings, including the reception and assessment
of the evidence from all parties. We defined the issues as follows:
1. Whether the appointments of the petitioners and
intervenors were midnight appointments within the coverage
of EO 2;
2. Whether all midnight appointments, including those of
petitioners and intervenors, were invalid;
3 . Whether the appointments of the petitioners and
intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with
good faith; and
4. Whether EO 2 violated the Civil Service Rules on
Appointment.33
This Court gave the CA the authority to resolve all pending matters
and applications, and to decide the issues as if these cases were
originally filed with the CA.
Rulings of the CA

Even though the same issues were raised in the different petitions,
the CA promulgated separate Decisions for the petitions. The CA
consistently ruled that EO 2 is constitutional. The CA, however,
issued different rulings as to the evaluation of the circumstances of
petitioners' appointments. In the cases of Attys. Velicaria-Garafil and
Venturanza, the CA stated that the OP should consider the
circumstances of their appointments. In the cases of Villanueva,
Rosquita, and Atty. Tamondong, the CA explicitly stated that · the
revocation of their appointments was proper because they were
midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31
August 2012. The CA ruled that EO 2 is not unconstitutional.
However, the CA relied on Sales v. Carreon34 in ruling that the OP
should evaluate whether Atty. Velicaria-Garafil's appointment had
extenuating circumstances that might make it fall outside the ambit of
EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is]
DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as
State Solicitor II at the OSG is hereby referred to the Office of the
President which has the sole authority and discretion to pass upon
the same.
SO ORDERED.35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP
No. 123664. The dispositive portion reads as follows:
ADMELEC Cases
116
WHEREFORE, premises considered, the instant Petition is hereby
DISMISSED. Executive Order No. 2 is hereby declared NOT
UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie
Tamondong's appointment as Director of Subic Bay Metropolitan
Authority is VALID for being a midnight appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether
petitioners' appointments violate Section 15, Article VII of the 1987
Constitution, and (2) whether EO 2 is constitutional. Ruling of the
Court
The petitions have no merit. All of petitioners' appointments are
midnight appointments and are void for violation of Section 15,
Article VII of the 1987 Constitution. EO 2 is constitutional. Villanueva
and Rosquita, petitioners in G.R. No. 209138, did not appeal the
CA's ruling under Rule 45, but instead filed a petition for certiorari
under Rule 65. This procedural error alone warrants an outright
dismissal of G.R. No. 209138. Even if it were correctly filed under
Rule 45, the petition should still be dismissed for being filed out of
time.40 There was also no explanation as to why they did not file a
motion for reconsideration of the CA's Decision. Midnight
Appointments
This ponencia and the dissent both agree that the facts in all these
cases show that "none of the petitioners have shown that their
appointment papers (and transmittal letters) have been issued (and
released) before the ban."41 The dates of receipt by the MRO, which
in these cases are the only reliable evidence of actual transmittal of
the appointment papers by President Macapagal-Arroyo, are dates
clearly falling during the appointment ban. Thus, this ponencia and
the dissent both agree that all the appointments in these cases are
midnight appointments in violation of Section 15, Article VII of the
1987 Constitution.
Constitutionality of EO 2

Based on prevailing jurisprudence, appointment to a government
post is a process that takes several steps to complete. Any valid
appointment, including one made under the exception provided in
Section 15, Article VII of the 1987 Constitution, must consist of the
President signing an appointee's appointment paper to a vacant
office, the official transmittal of the appointment paper (preferably
through the MRO), receipt of the appointment paper by the
appointee, and acceptance of the appointment by the appointee
evidenced by his or her oath of office or his or her assumption to
office.
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of
the 1987 Constitution. Aytona defined "midnight or last minute"
appointments for Philippine jurisprudence.1âwphi1 President Carlos
P. Garcia submitted on 29 December 1961, his last day in office, 350
appointments, including that of Dominador R. Aytona for Central
Bank Governor. President Diosdado P. Macapagal assumed office
on 30 December 1961, and issued on 31 December 1961
Administrative Order No. 2 recalling, withdrawing, and cancelling all
appointments made by President Garcia after 13 December 1961
(President Macapagal's proclamation date). President Macapagal
appointed Andres V. Castillo as Central Bank Governor on 1 January
1962. This Court dismissed Aytona's quo warranto proceeding
against Castillo, and upheld Administrative Order No. 2's cancellation
of the "midnight or last minute" appointments. We wrote:
x x x But the issuance of 350 appointments in one night and the
planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill all vacant
positions irrespective of fitness and other conditions, and thereby to
deprive the new administration of an opportunity to make the
corresponding appointments.
x x x Now it is hard to believe that in signing 350 appointments in
one night, President Garcia exercised such "double care" which was
required and expected of him; and therefore, there seems to be force
to the contention that these appointments fall beyond the intent and
ADMELEC Cases
117
spirit of the constitutional provision granting to the Executive
authority to issue ad interim appointments.
Under the circumstances above described, what with the separation
of powers, this Court resolves that it must decline to disregard the
Presidential .Administrative Order No. 2, cancelling such "midnight"
or "last-minute" appointments.
Of course the Court is . aware of many precedents to the effect that
once an appointment has been issued, it cannot be reconsidered,
specially where the appointee has qualified. But none of them refer
to mass ad interim appointments (three hundred and fifty), issued in
the last hours of an outgoing Chief Executive, in a setting similar to
that outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation and if any
circumstances justify revocation, those described herein should fit
the exception.
Incidentally, it should be stated that the underlying reason for
denying the power to revoke after the appointee has qualified is the
latter's equitable rights. Yet it is doubtful if such equity might be
successfully set up in the present situation, considering the rush
conditional appointments, hurried maneuvers and other happenings
detracting from that degree of good faith, morality and propriety
which form the basic foundation of claims to equitable relief. The
appointees, it might be argued, wittingly or unwittingly cooperated
with the stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public service.
Needless to say, there are instances wherein not only strict legality,
but also fairness, justice and righteousness should be taken into
account.43
During the deliberations for the 1987 Constitution, then Constitutional
Commissioner (now retired Supreme Court Chief Justice) Hilario G.
Davide, Jr. referred to this Court's ruling in Aytona and stated that his
proposal seeks to prevent a President, whose term is about to end,
from preempting his successor by appointing his own people to
sensitive positions.

MR. DAVIDE: The idea of the proposal is that about the end of the
term of the President, he may prolong his rule indirectly by
appointing people to these sensitive positions, like the commissions,
the Ombudsman, the judiciary, so he could perpetuate himself in
power even beyond his term of office; therefore foreclosing the right
of his successor to make appointments to these positions. We
should realize that the term of the President is six years and under
what we had voted on, there is no reelection for him. Yet he can
continue to rule the country through appointments made about the
end of his term to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or an
empirical value, on Aytona's intangible "stratagem to beat the
deadline," and also on the act of "preempting the President's
successor," which shows a lack of "good faith, morality and
propriety." Subject to only one exception, appointments made during
this period are thus automatically prohibited under the Constitution,
regardless of the appointee's qualifications or even of the President's
motives. The period for prohibited appointments covers two months
before the elections until the end of the President's term. The
Constitution, with a specific exception, ended the President's power
to appoint "two months immediately before the next presidential
elections." For an appointment to be valid, it must be made outside
of the prohibited period or, failing that, fall under the specified
exception.
The dissent insists that, during the prohibited period, an appointment
should be viewed in its "narrow sense." In its narrow sense, an
appointment is not a process, but is only an "executive act that the
President unequivocally exercises pursuant to his discretion." 45 The
dissent makes acceptance of the appointment inconsequential. The
dissent holds that an appointment is void if the appointment is made
before the ban but the transmittal and acceptance are made after the
ban. However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made before the
ban even if the acceptance is made after the ban. In short, the
dissent allows an appointment to take effect during the ban, as long
as the President signed and transmitted the appointment before the
ban, even if the appointee never received the appointment paper
before the ban and accepted the appointment only during the ban.
ADMELEC Cases
118
The dissent's view will lead to glaring absurdities. Allowing the
dissent's proposal that an appointment is complete merely upon the
signing of an appointment paper and its transmittal, excluding the
appointee's acceptance from the appointment process, will lead to
the absurdity that, in case of non-acceptance, the position is
considered occupied and nobody else may be appointed to it.
Moreover, an incumbent public official, appointed to another public
office by the President, will automatically be deemed to occupy the
new public office and to have automatically resigned from his first
office upon transmittal of his appointment paper, even if he refuses
to accept the new appointment. This will result in chaos in public
service.
Even worse, a President who is unhappy with an incumbent public
official can simply appoint him to another public office, effectively
removing him from his first office without due process. The mere
transmittal of his appointment paper will remove the public official
from office without due process and even without cause, in violation
of the Constitution.
The dissent's proferred excuse (that the appointee is not alluded to in
Section 15, Article VII) for its rejection of "acceptance by the
appointee" as an integral part of the appointment process ignores the
reason for the limitation of the President's power to appoint, which is
.to prevent the outgoing President from continuing to rule the country
indirectly after the end of his term. The 1986 Constitutional
Commission installed a definite cut-off date as an objective and
unbiased marker against which this once-in-every-six-years
prohibition should be measured.
The dissent's assertion that appointment should be viewed in its
narrow sense (and is not a process) only during the prohibited period
is selective and time-based, and ignores well-settled jurisprudence.
For purposes of complying with the time limit imposed by the
appointment ban, the dissent' s position cuts short the appointment
process to the signing of the appointment paper and its transmittal,
excluding the receipt of the appointment paper and acceptance of
the appointment by the appointee.

The President exercises only one kind of appointing power. There is
no need to differentiate the exercise of the President's appointing
power outside, just before, or during the appointment ban. The
Constitution allows the President to exercise the power of
appointment during the period not covered by the appointment ban,
and disallows (subject to an exception) the President from exercising
the power of appointment during the period covered by the
appointment ban. The concurrence of all steps in the appointment
process is admittedly required for appointments outside the
appointment ban. There is no justification whatsoever to remove
acceptance as a requirement in the appointment process for
appointments just before the start of the appointment ban, or during
the appointment ban in appointments falling within the exception.
The existence of the appointment ban makes no difference in the
power of the President to appoint; it is still the same power to
appoint. In fact, considering the purpose of the appointment ban, the
concurrence of all steps in the appointment process must be strictly
applied on appointments made just before or during the appointment
ban.
In attempting to extricate itself from the obvious consequences of its
selective application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to
validly assume his post and discharge the functions of his new office,
and thus make the appointment effective. There can never be an
instance where the appointment of an incumbent will automatically
result in his resignation from his present post and his subsequent
assumption of his new position; or where the President can simply
remove an incumbent from his current office by appointing him to
another one. I stress that acceptance through oath or any positive
act is still indispensable before any assumption of office may
occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled
jurisprudence during the appointment ban, but apply the same
jurisprudence outside of the appointment ban.
ADMELEC Cases
119
[T]he well-settled rule in our jurisprudence, that an appointment is a
process that begins with the selection by the appointing power and
ends with acceptance of the appointment by the appointee, stands.
As early as the 1949 case of Lacson v. Romero, this Court laid down
the rule that acceptance by the appointee is the last act needed to
make an appointment complete. The Court reiterated this rule in the
1989 case of Javier v. Reyes. In the 1996 case of Garces v. Court of
Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of
Bermudez v. Executive Secretary, cited in the ponencia, affirms this
standing rule in our jurisdiction, to wit:
"The appointment is deemed complete once the last act required of
the appointing authority has been complied with and its acceptance
thereafter by the appointee in order to render it effective."47
The dissent's assertion creates a singular exception to the well-
settled doctrine that appointment is a process that begins with the
signing of the appointment paper, followed by the transmittal and
receipt of the appointment paper, and becomes complete with the
acceptance of the appointment. The dissent makes the singular
exception that during the constitutionally mandated ban on
appointments, acceptance is not necessary to complete the
appointment. The dissent gives no reason why this Court should
make such singular exception, which is contrary to the express
provision of the Constitution prohibiting the President from making
appointments during the ban. The dissent's singular exception will
allow the President, during the ban on appointments, to remove from
office incumbents without cause by simply appointing them to
another office and transmitting the appointment papers the day
before the ban begins, appointments that the incumbents cannot
refuse because their acceptance is not required during the ban.
Adoption by this Court of the dissent's singular exception will
certainly wreak havoc on the civil service.
The following elements should always concur in the making of a valid
(which should be understood as both complete and effective)
appointment: (1) authority to appoint and evidence of the exercise of
the authority; (2) transmittal of the appointment paper and evidence
of the transmittal; (3) a vacant position at the time of appointment;

and (4) receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the qualifications
and none of the disqualifications. The concurrence of all these
elements should always apply, regardless of when the appointment
is made, whether outside, just before, or during the appointment ban.
These steps in the appointment process should always concur and
operate as a single process. There is no valid appointment if the
process lacks even one step. And, unlike the dissent's proposal,
there is no need to further distinguish between an effective and an
ineffective appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is provided
for in the Constitution and laws.48 Discretion is an integral part in the
exercise of the power of appointment.49 Considering that
appointment calls for a selection, the appointing power necessarily
exercises a discretion. According to Woodbury, J., "the choice of a
person to fill an office constitutes the essence of his appointment,"
and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." In
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court
we held:
The power to appoint is, in essence, discretionary. The appointing
power has the right of choice which he may exercise freely according
to his judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to appoint; it
is not a ministerial act of issuing appointment papers to the
appointee. In other words, the choice of the appointee is a
fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to
appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of
ADMELEC Cases
120
appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing authority, directly
or indirectly, of his discretion to pick his own choice. Consequently,
when the qualifications prescribed by Congress can only be met by
one individual, such enactment effectively eliminates the discretion of
the appointing power to choose and constitutes an irregular
restriction on the power of appointment.50
Transmittal
It is not enough that the President signs the appointment paper.
There should be evidence that the President intended the
appointment paper to be issued. It could happen that an appointment
paper may be dated and signed by the President months before the
appointment ban, but never left his locked drawer for the entirety of
his term. Release of the appointment paper through the MRO is an
unequivocal act that signifies the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958,
Governing the Organization and Functions of the Executive Office
and General Matters of Procedure Therein. Initially called the
Records Division, the MRO functioned as an administrative unit of
the Executive Office. Memorandum Order No. 1 assigned the
following functions:
a. Receive, record and screen all incoming correspondence,
telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature
to the President's Private Office; and
(2) Distribute those requiring action within the Office
or requiring staff work prior to presentation to the
President to the appropriate units within the Office.

b. Follow up on correspondence forwarded to entities
outside the Office to assure that prompt replies are made
and copies thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal
papers of the President, and keep them in such condition as
to meet the documentary and reference requirements of the
Office.
e. Keep and maintain a filing and records system for acts,
memoranda, orders, circulars, correspondence and other
documents affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the
Division m accordance with prevailing standard operating
procedure.
g. Keep a separate record of communications or documents
of confidential nature.
h. Have custody of the Great Seal of the Republic of the
Philippines.
i. Prepare and submit to the approving authority, periodic
disposition schedules of non-current records which have no
historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist other
offices in the installation or improvement of their records
management system; and
k. Give instructions or deliver lectures and conduct practical
training to in-service trainees from other offices and to
students from educational institutions on records
management.51
ADMELEC Cases
121
The Records Division was elevated to an Office in 1975, with
the addition of the following functions:
1. Maintain and control vital documents and
essential records to support the functions of the OP
in its day to day activities;
2. Monitor the flow of communications' from their
time of receipt up to their dispatch;
3. Service the documentary, information and
reference requirements of top management and
action officers of the OP, and the reference and
research needs of other government agencies and
the general public;
4. Ensure the proper storage, maintenance,
protection and preservation of vital and presidential
documents, and the prompt disposal of obsolete and
valueless records;
5. Effect the prompt publication/dissemination of
laws, presidential issuances and classified
documents;
6. Provide computerized integrated records
management support services for easy reference
and retrieval of data and information; and
7. To be able to represent the OP and OP officials in
response to Subpoena Duces Tecum and
Testificandum served by courts and other
investigating bodies.52
For purposes of verification of the appointment paper's existence and
authenticity, the appointment paper must bear the security marks
(i.e., handwritten signature of the President, bar code, etc.) and must
be accompanied by a transmittal letter from the MRO.

The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO,
underscores the purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of
1958 to (1) receive, record, and screen all incoming correspondence,
telegrams, documents, and papers; (2) follow up on correspondence
forwarded to entities outside the Office of the President ("OP") to
assure that prompt replies are made and copies thereof furnished
the OP; (3) timely dispatch all outgoing documents and
correspondence; (4) have custody of records of the OP, except
personal papers of the President, and keep them in such condition
as to meet the documentary and reference requirements of the
Office; (5) keep and maintain a filing and records system for Acts,
Memoranda, Orders, Circulars, correspondence, and other pertinent
documents for ready reference and use; ( 6) issue certified copies of
documents on file as requested and in accordance with prevailing
standard operating procedures; (7) maintain and control vital
documents and essential records to support the OP in its day-to-day
activities; (8) monitor the flow of communications from the time of
receipt up to their dispatch; and (9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of all
documents emanating from Malacañang pursuant to its mandate
under Memorandum Order No. 1, Series of 1958. Is the MRO
required to follow a specific procedure in dispatching outgoing
documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment
paper signed by the President? A: Yes. It is observed for the release
of the original copy of the appointment paper signed by the
President.
ADMELEC Cases
122
Q: Can you briefly illustrate the procedure for the release of the
original copy of the appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Office
of the Executive Secretary (OES) forwards the appointment paper
bearing the stamp mark, barcode, and hologram of the Office of the
President, together with a transmittal letter, to the MRO for official
release. Within the same day, the MRO sends the original copy of
the appointment paper together with the transmittal letter and a
delivery receipt which contains appropriate spaces for the name of
the addressee, the date released, and the date received by the
addressee. Only a photocopy of the appointment is retained for the
MRO's official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service
Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum
Circular No. 35, Series of 2003 and Memorandum Circular No. 133,
Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents
forwarded to the MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents and
correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is
it officially released by the MRO to the department or agency
concerned?

A: The document is released within the day by the MRO if the
addressee is within Metro Manila. For example, in the case of the
appointment paper of Dindo Venturanza, the OES forwarded to the
MRO on March 12, 2010 his original appointment paper dated
February 23, 2010 and the transmittal letter dated March 9, 2010
prepared by the OES. The MRO released his appointment paper on
the same day or on March 12, 2010, and was also received by the
DOJ on March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or
department within Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to
established procedure, the MRO cannot issue a certified true copy of
the same because as far as the MRO is concerned, it does not exist
in our official records, hence, not an official document from the
Malacañang. There is no way of verifying the document's existence
and authenticity unless the document is on file with the MRO even if
the person who claims to have in his possession a genuine
document furnished to him personally by the President. As a matter
of fact, it is only the MRO which is authorized to issue certified true
copies of documents emanating from Malacañan being the official
custodian and central repository of said documents. Not even the
OES can issue a certified true copy of documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the
Malacañang Palace. All incoming and outgoing documents and
correspondence must pass through the MRO. As the official
custodian, the MRO is in charge of the official release of documents.
Q: What if an appointment paper was faxed by the Office of the
Executive Secretary to the appointee, is that considered an official
release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the
appointment paper to the appointee. That appointment paper is, at
best, only an "advanced copy."
ADMELEC Cases
123
Q: Assuming the MRO has already received the original appointment
paper signed by the President together with the transmittal letter
prepared by the OES, you said that the MRO is bound to transmit
these documents immediately, that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original
appointment paper has already been forwarded to the MRO, recalls
the appointment and directs the MRO not to transmit the
documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO,
was there any instance when it was directed to recall the
appointment and retrieve the documents already transmitted? A:
Yes, but only in a few instances. Sometimes, when the MRO
messenger is already in transit or while he is already in the agency
or office concerned, we get a call to hold the delivery. Q: You
previously outlined the procedure governing the transmittal of original
copies of appointment papers to the agency or office concerned.
Would you know if this procedure was followed by previous
administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure
has been followed. However, it was unusually disregarded when the
appointments numbering more than 800 were made by then
President Arroyo in March 2010. The MRO did not even know about
some of these appointments and we were surprised when we
learned about them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than
800 persons in the month of March alone. How were you able to
determine this number?
A: My staff counted all the appointments made by then President An-
oyo within the period starting January 2009 until June 2010.

Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by
then President Arroyo in the month of March 2010 compared to the
other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the
graphical representation thereof.
Q: If those documents will be shown to you, will you be able to
recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of
presidential appointees per month since January 2009 until June
2010, and a graphical representation thereof. Can you go over these
documents and tell us the relation of these documents to the ones
you previously mentioned?
A: These are [sic] the Certification with the table of statistics I
prepared after we counted the appointments, as well as the graph
thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how
many appointment papers and transmittal letters were released
through the MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which
were not released through the MRO but apparently through the OES,
there were portions on the stamp of the OES which supposedly
indicated the date and time it was actually received by the agency or
ADMELEC Cases
124
office concerned but were curiously left blank, is this regular or
irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt
attached to the transmittal letter is filled out completely because the
dates when the original appointment papers were actually received
are very material. It is a standard operating procedure for the MRO
personnel to ask the person receiving the documents to write his/her
name, his signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers
apparently released by the OES are concerned, what is the actual
date when the agency or the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were
actually received because the date and time were deliberately or
inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal
letters or the appointment papers is the actual date when it was
released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the
person who received these documents did not indicate the date and
time when it was received because these details are very
important.53
The MRO's exercise of its mandate does not prohibit the President or
the Executive Secretary from giving the appointment paper directly to
the appointee. However, a problem may arise if an appointment
paper is not coursed through the MRO and the appointment paper is
lost or the appointment is questioned. The appointee would then
have to prove that the appointment paper was directly given to him.

Dimaandal's counsel made this manifestation about petitioners'
appointment papers and their transmittal:
Your Honors, we respectfully request for the following markings to be
made:
1. A) The Transmittal Letter pertinent to the appointment of
petitioner DINDO VENTURANZA dated March 9, 2010 as
Exhibit "2-F" for the respondents;
B) The delivery receipt attached in front of the letter
bearing the date March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO
VENTURANZA dated February 23, 2010 as Exhibit
"2-G" for the respondents;
2. A) The Transmittal Letter pertinent to the appointment of
CHELOY E. VELICARIA-GARAFIL turned over to the MRO
on May 13, 2010 consisting of seven (7) pages as Exhibits
"2-H," "2-H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-H-6"
respectively for the respondents;
i. The portion with the name "CHELOY E.
VELICARIAGARAFIL" as "State Solicitor II,
Office of the Solicitor General" located on
the first page of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office
of the Executive Secretary located at the
back of the last page of the -letter showing
receipt by the DOJ with blank spaces for the
date and time when it was actually received
as Exhibit "2-H-8;"
B) The Appointment Paper of CHELOY E.
VELICARIA-GARAFIL dated March 5, 2010 as
Exhibit "2-I" for the respondents;
ADMELEC Cases
125
xxxx
4. A) The Transmittal Letter pertinent to the appointment of
EDDIE U. TAMONDONG dated 8 March 2010 but turned
over to the MRO only on May 6, 2010 consisting of two (2)
pages as Exhibits "2-L" and "2-L-l" respectively for the
respondents;
(a) The portion with the name "EDDIE U.
TAMONDONG" as "Member, representing the
Private Sector, Board of Directors" as Exhibit "2-L-
2";
(b) The portion rubber stamped by the Office of the
Executive Secretary located at the back of the last
page of the letter showing receipt by Ma. Carissa O.
Coscuella with blank spaces for the date and time
when it was actually received as Exhibit "2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the
appointments of x x x FRANCISCA BESTOYONG-
ROSQUITA dated March 8, 2010 but turned over to
the MRO on May 13, 2010 as Exhibit "2-T" for the
respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner,
Representing Region I and the Cordilleras" as
Exhibit "2-T-3·"
(d) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing
receipt by Masli A. Quilaman of NCIP-QC on March
15, 2010 as Exhibit "2-T-4;"

xxxx
D) The Appointment Paper of FRANCISCA
BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit
"2-W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of
IRMA A. VILLANUEVA as Administrator for Visayas, Board
of Administrators, Cooperative Development Authority,
Department of Finance dated March 8, 2010 as Exhibit "2-X"
for the respondents;
(a) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing
receipt by DOF with blank spaces for the date and
time when it was actually received as Exhibit "2-X-1
;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated
March 3, 2010 as Exhibit "2-Y" for the respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File
Maintenance and Retrieval Division of the MRO, supports
Dimaandal's counsel's manifestation that the transmittal of
petitioners' appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as
State Solicitor II of the Office of the Solicitor General, was her
appointment paper released through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 13, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
ADMELEC Cases
126
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as
member of the Board of Directors of Subic Bay Metropolitan
Authority, was her [sic] appointment paper released through the
MRO?
A: No. His appointment paper dated March 1, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 6, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed
as Commissioner of the National Commission on Indigenous
Peoples, representing Region 1 and the Cordilleras, was her
appointment paper released thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 13, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary and received on March 15, 2010.
Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as
Administrator for Visayas of the Cooperative Development Authority,
was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO
on May 4, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MR0.55
The possession of the original appointment paper is not
indispensable to authorize an appointee to assume office. If it were
indispensable, then a loss of the original appointment paper, which
could be brought about by negligence, accident, fraud, fire or theft,
corresponds to a loss of the office.56 However, in case of loss of the
original appointment paper, the appointment must be evidenced by a
certified true copy issued by the proper office, in this case the MRO.
Vacant Position
An appointment can be made only to a vacant office. An appointment
cannot be made to an occupied office. The incumbent must first be
legally removed, or his appointment validly terminated, before one
could be validly installed to succeed him.57
To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson)
occupied the post of provincial fiscal of Negros Oriental. He was later
nominated and confirmed as provincial fiscal of Tarlac. The
ADMELEC Cases
127
President nominated and the Commission on Appointments
confirmed Honorio Romero (Romero) as provincial fiscal of Negros
Oriental as Lacson's replacement. Romero took his oath of office, but
Lacson neither accepted the appointment nor assumed office as
provincial fiscal of Tarlac. This Court ruled that Lacson remained as
provincial fiscal of Negros Oriental, having declined the appointment
as provincial fiscal of Tarlac. There was no vacancy to which
Romero could be legally appointed; hence, Romero's appointment as
provincial fiscal ofNegros Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to
be complete involves several steps. First, comes the nomination by
the President. Then to make that nomination valid and permanent,
the Commission on Appointments of the Legislature has to confirm
said nomination. The last step is the acceptance thereof by the
appointee by his assumption of office. The first two steps, nomination
and confirmation, constitute a mere offer of a post. They are acts of
the Executive and Legislative departments of the Government. But
the last necessary step to make the appointment complete and
effective rests solely with the appointee himself. He may or he may
not accept the appointment or nomination. As held in the case of
Borromeo vs. Mariano, 41 Phil. 327, "there is no power in this
country which can compel a man to accept an office." Consequently,
since Lacson has declined to accept his appointment as provincial
fiscal of Tarlac and no one can compel him to do so, then he
continues as provincial fiscal of Negros Oriental and no vacancy in
said office was created, unless Lacson had been lawfully removed
as such fiscal of Negros Oriental.59
Paragraph (b ), Section 1 of EO 2 considered as midnight
appointments those appointments to offices that will only be vacant
on or after 11 March 2010 even though the appointments are made
prior to 11 March 2010. EO 2 remained faithful to the intent of
Section 15, Article VII of the 1987 Constitution: the outgoing
President is prevented from continuing to rule the country indirectly
after the end of his term.
Acceptance by the Qualified Appointee
 128

Acceptance is indispensable to complete an appointment. Assuming took effect. On the other hand, petitioners admit that they took their
office and taking the oath amount to acceptance of the oaths of office during the appointment ban.
appointment.60 An oath of office is a qualifying requirement for a
public office, a prerequisite to the full investiture of the office.61 Petitioners have failed to raise any valid ground for the Court to
declare EO 2, or any part of it, unconstitutional. Consequently, EO 2
Javier v. Reyes62 is instructive in showing how acceptance is remains valid and constitutional.
indispensable to complete an appointment. On 7 November 1967,
petitioner Isidro M. Javier (Javier) was appointed by then Mayor WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and
Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The 212030 are DENIED, and the petition in G.R. No. 209138 is
Municipal Council confirmed and approved Javier's appointment on DISMISSED. The appointments of petitioners Atty. Cheloy E.
the same date. Javier took his oath of office on 8 November 1967, Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza (G.R.
and subsequently discharged the rights, prerogatives, and duties of No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R.
the office. On 3 January 1968, while the approval of Javier's No. 209138), and Atty. Eddie U. Tamondong (G.R. No. 212030) are
appointment was pending with the CSC, respondent Purificacion C. declared VOID. We DECLARE that Executive Order No. 2 dated 30
Reyes (Reyes), as the new mayor of Malolos, sent to the . CSC a July 2010 is VALID and CONSTITUTIONAL.
letter to recall Javier's appointment. Reyes also designated Police Lt.
Romualdo F. Clemente as Officer-in-Charge of the police
SO ORDERED.
department. The CSC approved Javier's appointment as permanent
on 2 May 1968, and even directed Reyes to reinstate Javier. Reyes,
on the other hand, pointed to the appointment of Bayani Bernardo as
Chief of Police of Malolos, Bulacan on 4 September 1967. This Court
ruled that Javier's appointment prevailed over that of Bernardo. It
cannot be said that Bernardo accepted his appointment because he
never assumed office or took his oath.

Excluding the act of acceptance from the appointment process leads

us to the very evil which we seek to avoid (i.e., antedating of
appointments). Excluding the act of acceptance will only provide
more occasions to honor the Constitutional provision in the breach.
The inclusion of acceptance by the appointee as an integral part of
the entire appointment process prevents the abuse of the
Presidential power to appoint. It is relatively easy to antedate
appointment papers and make it appear that they were issued prior
to the appointment ban, but it is more difficult to simulate the entire
appointment process up until acceptance by the appointee.

Petitioners have failed to show compliance with all four elements of a

valid appointment. They cannot prove with certainty that their
appointment papers were transmitted before the appointment ban

ADMELEC Cases

De Facto Officers
[No. 30188. October 2, 1928]
FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO,
BERNARDO SOLDE and VICENTE ELUM, petitioners, vs. NICOLAS
CAPISTRANO, acting as Judge of First Instance of Oriental Negros,
ALFREDO B. CACNIO, as Provincial Fiscal of Oriental Negros, and
JUAN GADIANI, respondents.
1. 1.COURTS; JURISDICTION ; PROHIBITION.—A writ of
prohibition to a judge of an inferior court will only lie in cases
where he acted without or in excess of his jurisdiction.
ADMELEC Cases
129
1. 2.ID.; ID.—A mere "understanding" as to the distribution of
cases for trial does not deprive the district judge of the
jurisdiction conferred upon him by law.
1. 3.ID.; ID.; APPOINTMENT OF ACTING FISCAL.—When a
regular provincial fiscal fails to discharge any of the duties of
his position, the judge of the Court of First Instance of the
province may
867
VOL. 53, OCTOBER 2, 1928 867
Tayko vs. Capistrano
1. appoint an acting provincial fiscal to discharge the neglected
duty (Sec. 1679, Administrative Code).
1. 4.ID.; ID.; ID.; DISCRETION OF JUDGE IN DETERMINING
WHETHER THE FISCAL HAS DISCHARGED HIS DUTY.—
The determination of the question as to whether the fiscal
has failed to discharge his duty in the prosecution of a crime
lies to a large extent within the sound discretion of the
presiding judge.
1. 5.ID.; TITLE TO, OFFICE "DE JURE" OR "DE FACTO;" "QUO
WARRANTO."—The title to the office of a judge, whether de
jure or de facto, can only be determined in a proceeding of
the nature of quo warranto and cannot be tested by
prohibition.
1. 6.ID. ; ID. ; USURPER.—A de facto judge is one who
exercises the duty of a judicial office under color of an
appointment or election thereto. He differs, on the one hand,
from a mere usurper who undertakes to act officially without
any color of right, and on the other hand, from a judge de
jure, who is in all respects legally appointed and qualified
and whose term of office has not expired.

1. 7.ID.; JUDGE HOLDING OVER AFTER CONCLUSION OF
HIS TERM.—In the absence of any constitutional or
statutory regulation on the subject, the general rule is that an
incumbent of an office will hold over after the conclusion of
his term until the election and qualification of his successor.
1. 8.ID.; ID.; JUDGE "DE FACTO."—A judge who is holding over
in good faith and whose successor has not' been appointed,
is a judge de facto.
1. 9.ID.; VALIDITY OF OFFICIAL ACTS OF "DE FACTO"
JUDGE.—The official acts of a de facto judge are as valid
for all purposes as those of a de jure judge so far as the
public or third persons who are interested therein are
concerned. The rule applies both to civil and criminal
matters.
1. 10."DE FACTO" OFFICER; TITLE CANNOT BE
QUESTIONED IN PROHI-BITION PROCEEDINGS.—The
title of a de facto officer cannot be indirectly questioned in a
proceeding to obtain a writ of prohibition to prevent him from
doing official acts.
ORIGINAL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the court.
Abad Santos, Camus & Delgado and Teopisto Guingona for
petitioners.
Araneta & Zaragoza for respondents.
The respondent Judge in his own behalf.
868
868 PHILIPPINE REPORTS ANNOTATED
Tayko vs. Capistrano
OSTRAND, J.:
This is a petition for a writ of prohibition enjoining the respondent judge
from taking cognizance of certain civil and criminal election cases in
which the petitioners are parties.
ADMELEC Cases
130
The petitioners allege that the respondent judge, previous to this
date, was appointed judge of the Court of First Instance of Oriental
Negros, to hold office during good behavior and until he should reach
the age of 65 years; that he now has reached that age and, therefore,
under the provisions of section 148 of the Administrative Code as
amended, is disqualified from acting as a judge of the Court of First
Instance. The petitioners further allege that in view of the many
election protests and criminal cases for violation of the election law
filed in the Court of First Instance of Oriental Negros arising from the
last election of June 5, 1928, the Honorable Sixto de la Costa was duly
designated and acted as auxiliary judge of the Province of Oriental
Negros; that between the auxiliary judge and the respondent judge
herein there was an understanding, and the assignment of the said
auxiliary judge was made with this understanding, that the said
auxiliary judge so designated would hear and take cognizance of all
election protests and criminal actions then pending or to be filed
arising from the said last general election, and that the respondent
Honorable Nicolas Capistrano would try and hear the ordinary cases
pending in the said court, but, notwithstanding this understanding or
agreement, the respondent judge tried and is still trying to take
cognizance of the election protests and criminal actions in said court;
that the respondent judge declared in open court that he will try the
criminal cases herein mentioned for the reason that the auxiliary judge
refused to try the same on the ground that the preliminary
investigations were held before him, when, in truth and in fact, the said
auxiliary judge did not make the statement imputed to him and was
and is still willing to try all the election protests and criminal cases for
violation of the election law pending in the court of the Province
869
VOL. 53, OCTOBER 2, 1928 869
Tayko vs. Capistrano
of Oriental Negros; that the respondent Honorable Nicolas Capistrano,
in spite of the fact that he was holding and is now pretending to hold
the office of judge of the Court of First Instance of Oriental Negros,
took great interest and active part in the filing of criminal charges
against the petitioners herein to the unjustifiable extent of appointing
a deputy fiscal, who then filed the proper informations, when the
provincial fiscal refused to file criminal charges against the petitioners
for violation of the election law for lack of sufficient evidence to sustain
the same; that said respondent is neither a judge de jure nor de

facto, but that, notwithstanding this fact, he continues to hold the office
of judge of the Court of First Instance of Oriental Negros and pretends
to be a duly qualified and acting judge of the said province; and that
he has tried, and continues to try, to act as such judge and that there
is reasonable ground to believe that he will take cognizance of the
cases in question unless he be restrained by order of this court; that,
in acting as a duly qualified judge notwithstanding the facts alleged in
the fifth, sixth, and seventh paragraphs hereof, the respondent judge
acted and is about to act without and in excess of jurisdiction and also
after the loss of jurisdiction.
To this petition the respondents demur on the ground that the facts
stated do not entitle the petitioners to the relief demanded in that (1)
none of the facts alleged in the petition divest the respondent judge of
his jurisdiction to take cognizance of the cases referred to in the
complaint, and (2) even admitting as true, for the sake of this
demurrer, the facts alleged in paragraph 7 of the petition, the
respondent judge is still a de facto judge and his title to the office and
his jurisdiction to hear the cases referred to in the petition cannot be
questioned by prohibition, as this writ, even when directed against
persons acting as judges, cannot be treated as a substitute for quo
warranto, or be rightfully called upon to perform any of the functions
of that writ.
870
870 PHILIPPINE REPORTS ANNOTATED
Tayko vs. Capistrano
The grounds upon which the petition rests may be reduced to three
propositions: (1) That the assignment of the Auxiliary Judge, Sixto de
la Costa, to Dumaguete was made with the understanding that he was
to hear and take cognizance of all election contests and criminal
causes for violation of the election law and that the respondent judge
was to take cognizance of the ordinary cases and that there was an
understanding between them that this arrangement was to be
followed.
(2) That the respondent judge took great interest and an active part
in the filing of the criminal charges against the petitioners herein to the
unjustifiable extent of appointing a deputy fiscal who filed the proper
informations when the regular provincial fiscal refused to file them for
lack of sufficient evidence.
(3) That the respondent judge is already over 65 years of age and
has, therefore, automatically ceased as judge of the Court of First
ADMELEC Cases
131
Instance of Oriental Negros and that he is neither a judge de
jure nor de facto.
(a) But little need be said as to the first proposition. A writ of
prohibition to a judge of an inferior court will only lie in cases where he
acts without or in excess of his jurisdiction (section 226, Code of Civil
Procedure), and it is obvious that a mere "understanding" as to the
distribution of cases for trial did not deprive the respondent judge of
the jurisdiction conferred upon him by law. It may be noted that it is
not alleged that another judge had taken cognizance of the cases in
question or that they had been definitely assigned to trial before such
other judge.
(b) The second proposition is equally untenable. That the
respondent judge took great interest and an active part in the filing of
the criminal charges against the petitioners to the extent of appointing
a deputy fiscal when the regular provincial fiscal refused to file the
proper informations, did not disqualify him from trying the cases in
question. Section 1679 of the Administrative Code provides that "when
a provincial fiscal shall be disqualified by
871
VOL. 53, OCTOBER 2, 1928 871
Tayko vs. Capistrano
personal interest to act in a particular case or when for any reason he
shall be unable, or shall fail, to discharge any of the duties of his
position, the judge of the Court of First Instance of the province shall
appoint an acting provincial fiscal, * * *." (Italics ours.)
The determination of the question as to whether the fiscal has
failed to discharge his duty in the prosecution of a crime must
necessarily, to a large extent, lie within the sound discretion of the
presiding judge, and there is no allegation in the petition that such
discretion was abused in the present instance. It is true that it is stated
that the appointment of the acting fiscal was "unjustifiable," but that is
only a conclusion of law and not an allegation of facts upon which such
a conclusion can be formed and may, therefore, be disregarded. It
follows that in appointing an acting fiscal, the respondent judge was
well within his jurisdiction.
(c) The third ground upon which the petition is based is the most
important and merits some consideration. It is well settled that the title
to the office of a judge, whether de jure or de facto, can only be
determined in a proceeding in the nature of quo warranto and cannot
be tested by prohibition. But counsel for the petitioners maintains that

the respondent judge is neither a judge de jure nor de facto and that,
therefore, prohibition will lie. In this, counsel is undoubtedly mistaken.
The respondent judge has been duly appointed to the office of
Judge of the Court of First Instance of Oriental Negros, but section
148 of the Administrative Code, as amended, provides that "Judges of
the Court of First Instance and auxiliary judges shall be appointed to
serve until they shall reach the age of sixty-five years." In view of this
provision and assuming, as we must, that the allegations of the petition
are true, it is evident that the respondent is no longer a judge de
jure, but we do not think that it can be successfully disputed that he is
still a judge de facto.
872
872 PHILIPPINE REPORTS ANNOTATED
Tayko vs. Capistrano
Briefly defined, a de facto judge is one who exercises the duties of a
judicial office under color of an appointment or election thereto
(Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand,
from a mere usurper who undertakes to act officially without any color
of right, and on the other hand, from a judge de jure who is in all
respects legally appointed and qualified and whose term of office has
not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Mattoon, 2
Allen [Mass.], 361; Van Slyke vs. Farmers' Mut. Fire Ins. Co., 39 Wis.,
390).
"Apart from any constitutional or statutory regulation on the subject
there seems to be a general rule of law that an incumbent of an office
will hold over after the conclusion of his term until the election and
qualification of a successor" (22 R. C. L., pp. 554-5). When a judge in
good faith remains in office after his title has ended, he is a de
facto officer (Sheehan's Case, 122 Mass., 445).
Applying the principles stated to the facts set forth in the petition before
us, we cannot escape the conclusion that, on the assumption that said
facts are true, the respondent judge must be considered a judge de
facto. His term of office may have expired, but his successor has not
been appointed, and as good f aith is presumed, he must be regarded
as holding over in good faith. The contention of counsel for the
petitioners that the auxiliary judge present in the district must be
considered the regular judge seems obviously erroneous.
In these circumstances the remedy prayed for cannot be granted.
"The rightful authority of a judge, in the full exercise of his public
ADMELEC Cases
132
judicial f unctions, cannot be questioned by any merely private suitor,
nor by any other, excepting in the form especially provided by law. A
judge de facto assumes the exercise of a part of the prerogative of
sovereignty, and the legality of that assumption is open to the attack
of the sovereign power alone. Accordingly, it is a well established
principle, dating from the earliest period and repeatedly confirmed by
an unbroken current of deci-
873
VOL. 53, OCTOBER 2, 1928 873
Tayko vs. Capistrano
sions, that the official acts of a de facto judge are just as valid for all
purposes as those of a de jure judge, so far as the public or third
persons who are interested therein are concerned. The rule is the
same in civil and criminal cases. The principle is one founded in policy
and convenience, for the right of no one claiming a title or interest
under or through the proceedings of an officer having an apparent
authority to act would be saf e, if it were necessary in every case to
examine the legality of the title of such officer up to its original source,
and the title or interest of such person were held to be invalidated by
some accidental defect or flaw in the appointment, election or
qualification of such officer, or in the rights of those from whom his
appointment or election emanated; nor could the supremacy of the
laws be maintained, or their execution enforced, if the acts of the judge
having a colorable, but not a legal title, were to be deemed invalid. As
in the case of judges of courts of record, the acts of a justice de
facto cannot be called in question in any suit to which he is not a party.
The official acts of a de facto justice cannot be attacked collaterally.
An exception to the general rule that the title of a person assuming to
act as judge cannot be questioned in a suit before him is generally
recognized in the case of a special judge, and it is held that a party to
an action before a special judge may question his title to the office of
judge on the proceedings before him, and that the judgment will be
reversed on appeal, where proper exceptions are taken, if the person
assuming to act as special judge is not a judge de jure. The title of
a de facto officer cannot be indirectly questioned in a proceeding to
obtain a writ of prohibition to prevent him from doing an official act, nor
in a suit to enjoin the collection of a judgment rendered by him. Having
at least colorable right to the office his title can be determined only in
a quo warranto proceeding or inf ormation in the nature of a quo
warranto at suit of the sovereign." (15 R. C. L., pp. 519-521.)

874
874 PHILIPPINE REPORTS ANNOTATED
People vs. Yu Chai Ho
The demurrer to the petition is sustained, and inasmuch as it is evident
that the weakness of the petition cannot be cured by amendment, the
present proceedings are hereby dismissed with the costs against the
petitioners jointly and severally. The preliminary injunction
hereinbefore issued is dissolved. So ordered.
[No. L-3913. August 7, 1952]
EULOGIO RODRIGUEZ, Sr., plaintiff and appellant, vs. CARLOS
TAN, defendant and appellee.
_____________
* 78 Phil. 479.
725
VOL. 91, AUGUST 7, 1952 725
Rodriguez vs. Tan
1. 1.SENATOR, OUSTED THROUGH ELECTION PROTEST,
AS A DE FACTO OFFICER; RIGHT TO COMPENSATION,
EMOLUMENTS AND ALLOWANCES.—A senator who had
been proclaimed and had assumed office, but was later on
ousted as a result of an election protest, is a de facto officer
during the time he held the office of senator, and is entitled
to the compensation, emoluments and allowances which our
Constitution provides for the position. This is the policy and
the rule that has been followed consistently in this
jurisdiction.
1. 2.JUDGMENTS; RES JUDICATA; DAMAGES IN ELECTION
PROTEST; ELECTORAL TRIBUNAL, SCOPE OF
POWERS OF.—Where the Senate Electoral Tribunal chose
to pass sub silentio, or ignored altogether, an important
claim for damages in connection with an election protest—a
ADMELEC Cases
133
matter incident to the power and authority given to the
Tribunal by the Constitution, whose jurisdiction over election
cases is ample and unlimited—the clear implication is that it
deemed it unjustified. This matter cannot be passed upon in
another action for recovery of said damages in accordance
with the principle of res judicata.
1. 3.PLEADINGS AND PRACTICE; COMPLAINT, AVERMENT
IN, AS A CONCLUSION OF LAW; MOTION TO DISMISS.—
The averment in a complaint that "defendant usurped the
office of Senator of the Philippines" is a conclusion of law—
not a statement of fact—when the particular facts on which
the alleged usurpation is predicated are not set forth therein.
Such averment cannot be deemed admitted by a motion to
dismiss.
APPEAL from an order of the Court of First Instance of Rizal.
Barcelona, J.
The facts are stated in the opinion of the Court.
Ramon Diokno and Jose W. Diokno for appellant.
Agustin Alvarez Salazar for appellee.
BAUTISTA ANGELO, J.:
Plaintiff seeks to collect from the defendant the aggregate sum of
P18,400 as salaries and allowances, and the sum of P35,524.55 as
damages, upon the plea that the latter usurped the office of Senator
of the Philippines which rightfully belongs to the former from
December 30, 1947, to December 27, 1949.
Plaintiff claims that on December 30, 1947, defendant usurped the
office of Senator of the Philippines, and from
726
726 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
that date until December 1949, he continuously collected the salaries,
emoluments and privileges attendant to that office amounting to
P18,400; that protest having been filed by plaintiff against defendant,
the Senate Electoral Tribunal on December 16, 1949, rendered
judgment declaring plaintiff to have been duly elected to the office; and

that by reason of such usurpation, plaintiff suffered damages in the
amount of P35,524.55 for expenses he incurred in prosecuting the
protest.
On February 2, 1950, defendant filed a motion to dismiss alleging,
on one hand, that the judgment rendered by the Senate Electoral
Tribunal in the protest case is a bar to this action under the principle
of res judicata, and, on the other, that said Tribunal denied without any
reservation the claim of the plaintiff for expenses incurred in
prosecuting the protest.
The issue having been thus joined upon the motion to dismiss, the
Court entered on an order dismissing the complaint with costs. From
this order plaintiff has appealed.
The averment in the complaint that "defendant usurped the office
of Senator of the Philippines" is a conclusion of law,—not a statement
of fact,—inasmuch as the particular facts on which the alleged
usurpation is predicated are not set forth therein. Hence such
averment cannot be deemed admitted by the motion to dismiss
(Fressel vs. Mariano Uy Chaco & Sons & Co., 34 Phil., 122).
Moreover, such averment is negatived by the decision of the Senate
Electoral Tribunal in the protest case which says that defendant was
one of those proclaimed elected as Senator in the general elections
held on November 11, 1947. Defendant, cannot, therefore, be
considered a usurper as claimed in the complaint.
With this preliminary statement, let us now proceed to determine
the only issue involved in this appeal, to wit, whether def endant, who
has been proclaimed, took the oath of office, and discharged the
duties of Senator, can be
727
VOL. 91, AUGUST 7, 1952 727
Rodriguez vs. Tan
ordered to reimburse the salaries and emoluments he has received
during his incumbency to the plaintiff who has been legally declared
elected by the Senate Electoral Tribunal.
Plaintiff claims that, as defendant was found by final judgment not
to have been entitled to the office of Senator, and, as such, he was
during the time he discharged that office a mere de facto officer, he
should reimburse to the plaintiff the salaries and emoluments he has
received on the following grounds; (1) because the salaries and
emoluments follow and are inseparable from legal title to the office
and do not depend on whether the duties of the office are discharged
ADMELEC Cases
134
or not; and (2) because such a rule tends to curb election frauds and
lessens the danger and frequency of usurpation or intrusion into the
office. Plaintiff invites the attention of the Court to the annotation
appearing in 93 A.L.R. 258, 273 et seq., supplemented in 151 A.L.R.
952, 960, et seq., wherein more than 100 cases are cited in support
of the rule.
Defendant, on the other hand, contends that the rule invoked by
plaintiff, while sound and plausible, cannot be invoked in the present
case, since it runs counter to the principle and rule long observed in
this jurisdiction to the effect that one who has been elected to an office,
and has been proclaimed by the corresponding authority, has a right
to assume the office and discharge its functions notwithstanding the
protest filed against his election, and as a necessary consequence he
has likewise the right to collect and receive the salaries and
emoluments thereunto appertaining as a compensation for the
services he has rendered. Def endant avers that plaintiff already
attempted to seek the reimbursement of the salaries and emoluments
he had received in the protest he has filed against him but failed and
the implicit denial of his claim by the Senate Electoral Tribunal
constitutes a bar to his right to collect the same salaries and
emoluments in the present case.
728
728 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
After a careful consideration of the issue in the light of the law and
precedents obtaining in this jurisdiction, we are inclined to uphold the
point of view of the defendant. There is no question that the defendant
acted as a de facto officer during the time he held the office of Senator.
He was one of the candidates of the Liberal Party in the elections of
November 11, 1947, and was proclaimed as one of those who had
been elected by the Commission on Elections, and thereafter he took
the oath of office and immediately entered into the performance of the
duties of the position. Having been thus duly proclaimed as Senator
and having assumed office as required by law, it cannot be disputed
that defendant is entitled to the compensation, emoluments and
allowances which our Constitution provides for the position (article VI,
section 14). This is as it should be. This is in keeping with the ordinary
course of events. This is simple justice. The emolument must go to the
person who rendered the service unless the contrary is provided.
There is no averment in the complaint that he is linked with any

irregularity vitiating his election. This is the policy and the rule that has
been followed consistently in this jurisdiction in connection with
positions held by persons who had been elected thereto but were later
ousted as a result of an election protest. The right of the persons
elected to compensation during their incumbency has always been
recognized. We cannot recall of any precedent wherein the contrary
rule has been upheld.
A case which may be invoked in support of this point of view
is Page vs. U. S. (127 U. S. 67; 32 Law ed. 65), decided by the
Supreme Court of the United States. In that case, one William A. Pirce
was declared elected, received a certificate of election, was sworn in
and took his seat in the Congress of the United States. His election
was contested by Charles H. Page, and as a result the House of
Representatives found that Pirce was not duly elected and declared
his seat vacant. An election
729
VOL. 91, AUGUST 7, 1952 729
Rodriguez vs. Tan
was thereafter held to fill the vacancy and Page was duly elected.
Thereupon Page was sworn in and took his seat. Page later sued to
recover the salary received by Pirce during his incumbency. The
Supreme Court ruled that he was not entitled to it holding that "one
whose credentials showed that he was regularly elected a member of
Congress, and who was sworn in and took his seat, and served, and
drew his salary, was—although his seat was contested, and
subsequently he was declared by Congress not to have been elected,
and his seat was declared vacant—the predecessor of the person
elected to fill the vacancy". This case, though it arose under a special
statute, is significant in that it regarded Pirce as the lawful predecessor
of Page in the office to which he was later legally elected. Pirce was
declared entitled to the salary and emoluments of the office.
We are sympathetic to the rule earnestly advocated by the plaintiff
which holds that the salaries and emoluments should follow the legal
title to the office and should not depend on whether the duties of the
office are discharged or not, knowing that it is predicated on a policy
designed to discourage the Commission of frauds and to lessen the
danger and frequency of usurpation or intrusion into the office which
defeat the will of the people. We are conscious that, if the rule is
adopted, it would indeed have a wholesome effect in future elections
and would serve as a deterring factor in the commission of frauds,
ADMELEC Cases
135
violence and terrorism which at times are committed in some sectors
of our country to the detriment of public interest. But an examination
of the cases relied upon by him, discloses that in some states, like
Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri
and Washington, the doctrine advocated is premised on express
statutory provisions which permit recovery of the damages sustained
by reason of usurpation (Mechem, A Treatise on the Law of Public
Offices and Officers, pp, 223-224; 93 A. L. R. pp. 284-287), whereas
in the rest the ruling
730
730 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
is based on common law (Kreitz vs. Behrensmeyer, 24 A. L. R. 223-
224). Under such predicament, it is indeed hard to see how we can
extend here the force and effect of such doctrine as we are urged,
knowing well that, as a rule, "neither the English nor the American
common law is in force in these Islands, nor are the doctrines derived
therefrom binding upon our courts" (U. S. vs. Cuna, 12 Phil.,
241; Arnedo vs. Llorente and Liongson, 18 Phil., 257, 262), while, on
the other hand, there is nothing in our statutes which would authorize
us to adopt the rule. For us to follow the suggestion of the plaintiff
would be to legislate by judicial ruling which is beyond the province of
this Court. Nor are we justified to follow a common law principle which
runs counter to a precedent long observed in this jurisdiction.
Another reason that may be invoked in opposition to the claim of
the plaintiff is the principle of res judicata. It appears that plaintiff had
already set up this claim in the protest he filed against the defendant
before the Senate Electoral Tribunal, but when the case was decided
on the merits the Tribunal passed up this matter sub silentio. In our
opinion, this silence may be interpreted as a denial of the relief. This
is a matter which can be considered as an incident to the power and
authority given to the Electoral Tribunal by our Constitution, whose
jurisdiction over election cases is ample and unlimited (Sanidad et
al. vs. Vera et al., Case No. 1, Senate Electoral Tribunal), and when
the Tribunal chose to pass sub silentio, or ignore altogether, this
important claim, the clear implication is that it deemed it unjustified.
This matter, therefore, cannot now be passed upon in line with the
doctrine laid down in the case of Kare vs. Locsin, (61 Phil., 541),
wherein this Court, among other things, said:

"Locsin drew his pay by resolution and authority of the Legislature.
The propriety of those payments cannot be questioned on this
complaint. We recognize Locsin's right to receive and to retain the
compensation because the Legislature voted it to him
731
VOL. 91, AUGUST 7, 1952 731
Rodriguez vs. Tan
in spite of Mr. Kare's pending contest and claim to that compensation.
The Legislature's determination of Mr. Locsin's right to compensation
necessarily carries the corollary of Mr. Kare's lack of right to the same
compensation. The Legislature might possibly have required
reimbursement by Locsin had it been its intention to recognize Mr.
Kare's claim to the same compensation; but not having done so,
Locsin's superior right to this compensation is res judicata for the
courts." (Kare vs. Locsin, 61 Phil., pp. 641, 646.)
The same consideration may be made with regard to the claim for
damages contained in the second cause of action of the complaint.
Wherefore, the order appealed from is affirmed, with costs against
the appellant.
Bengzon, Montemayor, and Labrador, JJ., concur.
Parás, C. J., concurs in the result.
PADILLA, J., concurring:
I concur in the affirmance of the order appealed from which dismissed
the complaint, on the ground that the plea of usurpation by the
defendant of the office to which the plaintiff was adjudged by the
proper Electoral Tribunal to be entitled is not an allegation of fact.
Usurpation is per se unlawful A de facto officer enters upon the
performance of the duties and functions of an office under a color of
authority or title. A candidate proclaimed elected to an office by the
agency set up by law to make the proclamation cannot be deemed a
usurper. Cases cited by the dissenter which hold that a person entitled
to an office as adjudged by the courts is also entitled to recover the
fees collected and emoluments of and appertaining to the office from
the ousted holder thereof, are either based on common law or upon
express statutory provisions. In this jurisdiction the common law has
never been applied and there is no statute which allows recovery of
ADMELEC Cases
136
salaries and emoluments received by or paid to an officer who later on
is adjudged not to be entitled to the office.
732
732 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
Nevertheless, if the defendant, endant, directly or indirectly, had
committed unlawful or tortious acts which led to and resulted in his
proclamation as senator-elect, when in truth and in. fact he was not so
elected, he would be answerable for damages. In that event the salary,
fees and emoluments received by or paid to him during his illegal
incumbency would be a proper item of recoverable damage.
In the present case it is not pleaded that the defendant had
committed such acts.
PABLO, M., disidente:
La mayoría admite que el demandado era un senador de facto y no
de jure. Si esto es así, entonces está obligado a restituir al
demandante todos los emolumentos que recibió como senador de
facto.
No es necesario hacer un esfuerzo para llegar a tal conclusión si
se tiene en cuenta que los emolumentos se dan al que es legalmente
elegido, y no a otro. Un sentido ordinario de justicia obliga la
restitución al que haya sido privado de dichos emolumentos por el que
los recibió sin derecho alguno.
Se arguye que en Filipinas no existe una ley que dispone la
restitución de los sueldos recibidos por el funcionario de facto al
funcionario de jure, como en los estados de Indiana, Michigan y
Nueva York, y que el derecho consuetudinario no rige en Filipinas.
Precisamente, porque no existe tal ley, el Tribunal Supremo,
inspirándose en altos principios de justicia, debe establecer como
doctrina la de que el que haya ocupado ilegalmente un cargo debe
restituir al funcionario de jure todos los sueldos que haya recibido. La
regla universal que rigió desde que el hombre comenzó a tener noción
de la justicia es la siguiente: "dar a cada uno lo que es suyo." Si en la
conciencia del hombre existe una noción honda y fuertemente
arraigada, ésta es la de la justicia. Y fué la justicia la fuerza motriz que
derrocó imperios. Las revindicaciones sociales fueron inspiradas por
sentimientos de justicia. Y las convulsions

733
VOL. 91, AUGUST 7, 1952 733
Rodriguez vs. Tan
sociales no son más que signo sintomático del hambre y sed de
justicia.
¿ Qué justificación tiene un funcionario de facto para retener el
sueldo que corresponde al cargo que ilegalmente ocupó? ¿ Qué
justificación tiene para privar del sueldo al que fué legalmente
elegido? Privar de su sueldo al que fué elegido por el sufragio popular
es repugnante a la conciencia universal.
Esta doctrina tendría efecto purificador en las luchas electorales:
no se haría uso en ellas de las malas artes que han sido empleadas
en muchas elecciones. El público en general y especialmente
aquellos que se valen de medios más o menos ilícitos para ganar una
elección tendrían muy en cuenta que un acta de elección obtenida
ilegalmente no proporciona beneficios sino una carga. Quién
desconfiare de la pureza o legitimidad de un acta de elección podría
inclusive rehusar ocupar el cargo.
En Albright contra Sandoval, 54 Law Ed., 502, el Tribunal
Supremo de los Estados Unidos, al que fué apelada la decision del
Tribunal Supremo Territorial de New Mexico, relata los hechos de la
siguiente manera:
"This action was brought for the past fees and emoluments of the
office, amounting, it is alleged, to the sum of six thousand, one
hundred eighty-four dollars and sixteen cents ($6,184.16).
"The grounds of action are, as alleged, that Sandoval, defendant
in error, was duly elected to the office; that Albright, plaintiff in error,
on the 27th of March, 1903, 'usurped the same, and excluded the
plaintiff therefrom, and received and appropriated to his own use the
fees and emoluments' of the office until 19th of November, 1904, when
the plaintiff (defendant in error here), by a judgment in a 'certain
proceeding entitled the Territory of New Mexico on the relation of
Jesus Maria Sandoval against the said George F. Albright, was
restored to the possession of the said office.' The judgment was made
part of the complaint."
Después de considerar las alegaciones de una y otra parte, dice:
"It is clear that the only questions of fact presented by the pleadings
were as to the amount received and the amount expended by
ADMELEC Cases
137
734
734 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
Albright. This was the view taken of them by the supreme court. That
court said: 'The right of office and that the appellee (defendant in error
here) was the de jure officer were fully determined in the former suits,
and cannot be considered in this; therefore the court below properly
sustained the demurrer to all such parts of the answer as sought to
raise this issue. The suits referred to by the court were Territory ex rel.
Sandoval v. Albright, 12 N. M. 293, 78 Pac. 205, 13 N. M. 64, 79 Pac,
719, 11 A. 1½ E. Ann. Cas. 1165, 200 U. S. 9, 50 L. ed. 346, 26 Sup.
Ct. Rep. 210.
"The court therefore addressed itself to the two propositions which
it conceived were left in the case,—the right of Sandoval to recover
the fees received by Albright, and the right of the latter to set off
against them his disbursements for expenses. The court, passing on
the first proposition, found, it said, no statute of the territory 'governing
this subject,' but decided that 'the common law, in the absence of a
statute, authorizes a recovery by the officer de jure in such cases.' On
the second proposition it found that there could be no question of
Albright's good faith, and that it considered the cases made good faith
'the controlling consideration for the allowances of expenses to an
ousted de facto officer/ and affirmed the judgment of the trial court.
* * * * * *
*
"Under these views it is not necessary to decide whether the
judgment in the quo warranto proceedings is conclusive of the issues
in this case, as contended by defendant in error. The decision upon
the respective rights of the parties arising from the statute of the
territory may be rested on the grounds which we have expressed, and
we come to the proposition whether Sandoval can recover the fees
and emoluments received by Albright, and whether, if he can, may the
latter set off his expenses. The first proposition is not controverted by
Albright, although he suggests that there are some well-considered
cases the other way, and he cites Stuhr v. Curran, 44 N. J. L. 181, 43
Am. Rep. 353. He also cites Taylor v. Beckham, 178 U. S. 548, 44 L.
ed. 1187, 20 Sup. Ct. Rep. 890, 1009; Butler v. Pennsylvania, 10 How.
402, 13 L. ed. 472, for the view that there is no such thing as property
in a public office. However, his ultimate concession is that the weight
of authority is to the effect that a de jure officer may recover from

the de facto officer the emoluments of the office, less the reasonable
expenses incurred in earning such fees, when the de facto officer
entered into the office in good faith and under color of title. And this
was the view of the supreme court of the territory. To sustain the first
proposition, the court reviewed Stuhr v. Curran, supra, and cites
against it, United
735
VOL. 91, AUGUST 7, 1952 735
Rodriguez vs. Tan
States use of Crawford v. Addison, 6 Wall. 291, 18 L. ed. 919; Dolan
v. New York, 68 N. Y. 274, 23 Am. Rep. 168; Hunter v. Chandler, 45
Mo. 452; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; Douglass v.
State, 31 Ind. 429; People ex rel. Benoit v. Miller, 24 Mich. 458, 9 Am.
Rep. 131; People ex rel. Dorsey v. Smith, 28 Cal. 21; Nichols v.
MacLean, 101 N. Y. 538, 54 Am. Rep. 730, 5, N. E. 347; Kreitz v.
Bethrensmeyer, 149 111. 503, 24 L. R. A. 59, 36 N. E. 983; Vaux v.
Jefferson, 2 Dyer, 114b; Arris v. Stukely, 2 Mod. 260; Lee v. Drake, 2
Salk. 468; Webb's Case, 8 Coke, 45b; 1 Selwyn, N. P. 81; 1 Chitty,
P1. 112. It is not necessary to make a review of these cases. It is
enough to say that they sustain the proposition for which they are
cited.
Confirmó la decision apelada y declaró que el funcionario de
jure puede recobrar del funcionario de facto los emolumentos del
cargo.
El caso de Page contra Estados Unidos, 32 L. ed. 65, citado por
la mayoría, no tiene aplicación al caso particular; no existe similitud
entre los dos.
En 4 de noviembre de 1884, se celebró una elección en el
Segundo Distrito Congresional de Rhode Island para elegir a un
representante en el 49.° Congreso. William A, Pirce fué declarado
electo, recibió su acta de elección del Gobernador del Estado, presto
juramento y ocupó su puesto en el Congreso de los Estados Unidos
en 4. de marzo de 1885. Charles H. Page protestó contra su elección.
En 25 de enero de 1887 la Cámara de Representantes del
49.° Congreso adoptó la siguiente resolución: "Resolved, that William
A. Pirce was not elected a member of the House of Representatives
of the Forty-ninth Congress from the Second Congressional District of
Rhode Island, and that the seat be declared vacant." La Cámara de
ADMELEC Cases
138
Representantes debía tener buenas razones para no declarar electo
a Page. Se convocó a otra elección para cubrir el cargo de
representante declarado vacante; Charles H. Page, declarado electo,
presentó en 25 de febrero de 1887 su certificado de elección expedido
por el Gobernador del Estado, en el cual consta que él ha sido elegido
en 21 de febrero de 1887 representante del Estado de Rhode Island
en el 49.°
736
736 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
Congreso para cubrir el cargo declarado vacante. Page prestó
juramento y tomó posesión de su cargo.
Pirce cobro su sueldo de $9,468.18 por servicios prestados desde
el 4. de marzo de 1885 hasta el 25 de enero de 1887 en que su cargo
fué declarado vacante.
Page presentó su reclamación contra el Gobierno—no contra
Pirce—pidiendo que se le pagase el sueldo completo del cargo de
representante desde el 3. de marzo de 1885 hasta el 3. de marzo de
1887, alegando que, puesto que Pirce no había sido debidamente
elegido miembro del Congreso, no debía ser considerado como
predecesor suyo, según el sentido y alcance del artículo 51 de los
Estatutos Revisados; y que, por lo tanto, él (Page) debía recibir todo
el sueldo correspondiente al cargo por todo el tiempo en que Pirce lo
había ocupado.
El artículo 51 de los Estatutos Revisados de los Estados Unidos
dice así: "Whenever a vacancy occurs in either House of Congress,
by death or otherwise, of any member or delegate elected or
appointed thereto, after the commencement of the Congress to which
he has been elected or appointed, the person elected or appointed to
fill it shall be compensated and paid f rom the time that the
compensation of his predecessor ceased." El Tribunal Supremo de los
Estados Unidos, al aplicar esta disposición legal, consideró a Pirce
como predecesor de Page, y resolvió que Page solamente tenía
derecho a recibir el sueldo desde que Pirce dejó de ser congresista
en virtud de la resolución que declaraba vacante el cargo.
Si la Cámara de Representantes hubiera resuelto la protesta
declarando que el que fué debidamente elegido era Page y no Pirce,
estos dos asuntos serían iguales. En el asunto citado, se declaró
vacante el cargo; no se declaró debidamente electo a Page, sino que
se convocó una elección. Page, por tanto, no tenía derecho a cobrar

el sueldo recibido por Pirce: solamente tenía derecho a percibir el
sueldo correspondiente al cargo de representante después
737
VOL. 91, AUGUST 7, 1952 737
Rodriguez vs. Tan
de ser declarado vacante y después de ser elegido en la nueva
elección.
Pero en el caso presente no ha sido declarado vacante el cargo
de senador ocupado por el demandado. El Tribunal Electoral del
Senado declaró debidamente elegido al demandante Senador
Rodriguez; si f ué elegido debidamente, tiene que percibir el sueldo
desde que fué elegido, y no desde que dejó de ocupar el cargo el
senador de facto Tan. Si se hubiera declarado vacante el cargo de
senador y el Senador Rodriguez, en elección especial, hubiese sido
elegido, entonces él no tendría derecho a percibir más que el sueldo
desde su elección para cubrir el cargo vacante; 61 no sería más que
el sucesor del Senador Tan. Pero no ocurrió así: el Tribunal Electoral
del Senado declaró que el demandante fué debidamente elegido
Senador en lugar del demandado. Por tanto, dicho demandado—
senador de facto—no tenía derecho a recibir el sueldo, sino el
Senador Rodriguez, y los emolumentos que recibió deben restituirse
al Senador Rodriguez.
En Inglaterra, Irlanda, Terranova y Estados Unidos, excepto en
New Jersey, esta doctrina ha sido adoptada en numerosísimos casos
decididos por los tribunales supremos. Citaremos algunos:
"On the 25th day of May, 1893, he (John Booker) was duly elected to
the office of county clerk of Elizabeth City county, and was thereby
entitled to the certificate of election, and to enter upon the discharge
of the duties of the said office on the 1st day of July of said year, and
to receive the fees and emoluments thereof. He avers that he was
always ready and willing, from and after his election, to qualify as
provided by law, but was prevented from so doing by the defendant,
who, the plaintiff alleges, wrongfully and illegally secured the
certificate of election to said office, and intruded himself into the office,
and took upon himself the discharge of its duties, and continued
illegally to hold the same from the said 1st day of July, 1893, until the
19th day of March, 1894, when, pursuant to the judgment of the circuit
court of Elizabeth City county, affirming the judgment of the county
court of Elizabeth City county, a certificate of election to the said office
ADMELEC Cases
139
was granted to the plaintiff, and the plaintiff then and there qualified
by taking the oaths and executing the bond required by law.
738
738 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
"The plaintiff further avers that the defendant enjoyed the said office,
and collected and converted to his own use the fees and emoluments
thereof, from the said 1st day of July, 1893, to the said 19th day of
March, 1894. * * *
* * * * * *
*
"In the case of Bier v. Gorrell, 30 W. Va. 97, 3 S. E. 32, Judge
Snyder, delivering the opinion, says: 'lt seems to be a principle of
natural justice, as well as law, that where one person has injured
another, or received compensation which in equity and good
conscience belongs to another, he may be required by action to
account to such other for the injury done him. In like manner will an
intruder in office be required to account to the legal officer for injury
done by the intrusion. The legal right to an office confers the right to
receive and appropriate the fees and prerequisites legally incident
thereto. When such officer performs the duties of his office, he may
demand and receive the compensation therefor allowed by law; and
he is as fully entitled to such compensation as he would be in any
other case entitled to pay for skill and labor done for another at his
request. The legal fees and emoluments of an office are a part thereof,
and belong to the rightful incumbent; and where a person receives
such fees and emoluments on the pretense of title to the office, the te
jure officer may recover the profits of the office from him by an action
of assumpsit for money had and received to his use.' See, also,
Dorsey v. Smyth, 28 Cal. 21. "In Nichols v. Maclean, 101 N. Y. 526, 5,
N. E. 347, * * * the court says: * (9 (9 'the right to an office carries with
it the right to the emoluments of the office. An office has a pecuniary
value, although primarily it is an agency for public purposes. The right
to the emoluments of an office follows the true title.' In support of these
propositions, many cases are cited from England, and from other
states of the Union.?' See also, Kessel v. Zeiser, 102 N. Y. 114, 5, N,
E. 754.
* * * * * *
*

"Under our form of government, the perpetuity of our institutions
and the preservation of the liberty of the people depend upon honest
and fair elections; and the highest public policy requires that the laws
should be so framed and administered as to secure fair elections. To
hold that a defeated candidate, who, by an artifice or device, obtains
the certificate of election, and is inducted into office, may retain it until
as the result, it may be, of protracted litigation, the rightful claimant
prevails, and that in the meantime he may receive and retain the fees
and emoluments pertaining to the office without being accountable
therefor, is repugnant to natural justice, and offers an inducement to
the commission of fraud, by permit
739
VOL. 91, AUGUST 7, 1952 739
Rodriguez vs. Tan
ting the perpetrator to enjoy its fruits in security. To hold, that the
injured party must qualify as a condition precedent to his right of action
against the intruder would be to allow the wrongdoer to take
advantage of his own wrong, for, having secured the certificate of
election to which he was not entitled, he has deprived his competitor
of the only evidence which would entitle him to qualify, and to be
inducted into office." (Booker v. Donohoe, [1897, Supreme Court of
Appeals of Virginia] 28 S. E., 584.)
De las cinco decisiones del Estado de Illinois en la A. L. R. citaremos
una:
"At the election in November, A.D. 1886, John B. Kreitz and one
Behrensmeyer were candidates for election 'to the office of county
treasurer of Adams county,. 111., and, on the canvass of the returns,
Kreitz was declared elected by a plurality of 14 votes; * * * * whereupon
he qualified, and entered upon the discharge of the duties of that
office, * * * until his death, .in 1890. Appellee x x x contested the
election of Kreitz, which, after extended litigation, finally. resulted in
appellee being declared duly elected * *. *. On the 6th of April, 1892,
appellee filed a claim against the estate of. John B. Kreitz in the county
court of Adams county, seeking. to recover the sum of $10,000 for
fees and salary received by Kreitz. * * *.
"It is conceded that no statute exists in this state, declaring the
rights of a de jure officer to recover from a de facto officer the salary
paid such de facto officer, who has discharged the duties of the office
ADMELEC Cases
140
under a wrongful or a mistaken purpose. There is no legislation on that
subject in this state. The right of recovery, if it exists, depends',
therefore, on the principles of the common law. The common law is a
system of elementary rules and of general judicial declarations of
principles, which are continually expanding with the progress of
society, adapting themselves to the gradual changes of trade,
commerce, arts, inventions, and the exigencies and usages of the
country. Judicial decisions of common-law courts are the most
authoritative evidence of what constitutes the common law. By chapter
28, Starr 1½ C. Stat. 111., the common law of England is declared in
force in this state. By reference to the decisions of the common law
courts of England, the common law of that country is to be found. An
examination of the decisions of the courts of that country shows a
uniform declaration of the principle that a de jure officer has a right of
action to recover against an officer de facto by reason of the intrusion
of the latter into his office, and his receipt of the emoluments thereof.
Among others, the following opinions of English courts may be
referred to as sustaining this right of recovery: Vaux v. Jeferen, 2 Dyer,
114; Arris v. Stukely, 2 Mod. 260; Lee v. Drake, 2 Salk. 468;
740
740 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
Webb's Case, 8 Coke, 45. By the adoption of the common law of
England, the principle announced in these cases was adopted as the
law of this state, for the principle is of a general nature, and applicable
to our constitution. On the basis of a sound public policy, the principle
commends itself, for the reason that one would be less liable to usurp
or wrongfully retain a public office, and defeat the will of the people or
the appointing power, as loss would result from wrongful retention or
usurpation of an office. The question has frequently been before the
courts of the different states and of the United States', and the great
weight of authority sustains the doctrine of the common law, as shown
by the opinions of the judges in different states; and in most of the
states these are based on the common law, without reference to any
statute. The following cases are in point: United States v. Addison, 73
U. S. 6 Wall. 291, 18 L. ed. 919; Dolan v. New York, 68 N. Y. 274; 23
Am. Rep. 168; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; Douglas
v. State, 31 Ind. 429; Currey v. Wright, 9 Lea, 247; Kessel v. Zeiser,
102 N. Y. 114, 55 Am. Rep. 769; Nichols v. MacLean, 101 N. Y. 526,

54 Am. Rep. 730; People v. Miller, 24 Mich. 458, 9 Am. Rep. 131;
Hunter v. Chandler, 45 Mo. 452; People v. Smyth, 28 Cal. 21; Petit v.
Rosseau, 15 La. Ann. 239." (Kreitz v. Behrensmeyer, [1894, Illinois
Supreme Court] 24 L. R. A., 59).
"McElroy filled said office (tax collector of the City of Bridgeport)
for the term ending April 10, 1899, and was a candidate for election
for the term succeeding this, as was also the plaintiff. As a result of
said election in 1899, McElroy was regularly declared elected; and in
good faith, believing he had been so elected, he qualified anew, and
entered upon the duties of said office for said succeeding term. The
plaintiff made no demand for said office at this time, nor did he qualify
for it; but he at once brought suit In the superior court to determine
whether he had been elected, and upon a full hearing that court
decided against him. He then appealed to the supreme court of errors,
and that court set aside the judgment of the superior court, and
judgment was ultimately rendered in his favor. Immediately thereafter,
to wit, on the 8th of August, 1899, he qualified and took possession of
said office. McElroy, as an officer de facto, occupied the office from
April 10, 1899, to August 8th of the same year, and during this period
he collected taxes to the amount of P636,670.65. It had been for 20
years the invariable custom in said office to retain from the taxes
collected the fees due to the collector therefor, and to turn
741
VOL. 91, AUGUST 7, 1952 741
Rodriguez vs. Tan
over to the city the amount collected, less said fees; and McElroy, as
de facto incumbent of said office, followed said custom.
* * * * * *
* 742
'The next question is whether the plaintiff is entitled to recover from
the de facto officer the fees paid to such officer by the city; and the
answer to this depends upon the answer to the further question
whether this can be done at common law, and without the aid of a
statute. The courts of this country that have had occasion to pass upon
this last question have almost unanimously answered it in the
affirmative. That, in cases like the present, the legal right to the office
carries with it the right to the salary and emoluments thereof; that the
salary follows the office; and that the de facto officer, though he
performs the duties of the office has no legal right to the emoluments
ADMELEC Cases
141
thereof,—are propositions so generally held by the courts as to make
the citation of authorities in support of them almost superfluous. Nearly
all, if not all, cases hereinbefore cited upon both views as to the liability
of the city hold that the de facto officer, for fees and emoluments of
the office received by him, is liable at common law to the officer de
jure. So far as we are aware, the only well-considered case taking a
contrary view of the law is that of Stuhr vs. Curran, 446 N. J. Law, 186,
43 Am. Rep. 353; and that was decided by a divided court, standing
seven to five. We think the able dissenting opinion of Chief Justice
Beasley in that case shows conclusively that at common law, in a case
like the present, the de jure officer is entitled to recover from the de
facto officer. Another well-considered case directly in point in favor of
this view is that of Kreitz vs. Behrensmeyer, 149 111. 496, 36 N. E.
983, 24 L. R. A. 59. As before intimated, this court has not heretofore
had occasion to decide a question similar to the one now under
consideration; but in two cases, at least, the judges who wrote the
opinion of the court have expressed views in harmony with what we
hold to be the law. Thus, Chief Justice Seymour, in Samis vs. King, 40
Conn. 298-310, said: 'The right to the salary of an office, as such,
independent of actual and valuable services rendered, must, on
principle, depend upon the legal possession of the office;' and 'it is a
grave question whether a merely de facto officer, even when he
actually performs the whole duties of the office, can enforce the
payment of the salary. The authorities seem to be that he cannot/ And
Chief Justice Butler, in State vs. Carroll, 38 Conn. 449-471, 9 Am.
Rep. 409, 427, says that a de facto officer 'cannot collect his fees, or
claim any rights incident to the office, without showing himself to be
an officer de jure.'" (Coughlin vs. McElroy, [1902, Supreme Court of
Errors of Connecticut] 50 Atl., 1025.)
742 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
De las cinco decisiones del Estado de Kentucky en la A. L. R. citamos
la siguiente:
"Millard Hubbard and A. S. Ledford were candidates for the office of
sheriff of Clay county at the November election, 1925. The certificate
of election was issued by the election commissioners to Hubbard.
Burchell who was the Democratic nominee for the office of sheriff was
also voted for. He contested Hubbard's election and the right of

Ledford to the office. The trial court found in favor of Hubbard, and
from that finding Ledford prosecuted an appeal. Hubbard also
appealed. Ledford was on the appeal declared elected.
"In January, 1926, Hubbard qualified, assumed the duties of the
office, and continued to discharge them until the 15th day of
December, 1926, when Ledford qualified and assumed the obligations
of the office. He filed this action in the Clay circuit court to recover of
Hubbard the emoluments of the office during the period Hubbard
served.
"* * * * * * the circuit court found that the election had resulted in a tie between
* plaintiff and defendant. The court ordered that the result be
"A de jure officer may at common law recover the fees or salary
paid to a de facto officer and his right to recover does not accrue until
the right to the office is determined by a court of competent
jurisdiction. Kreitz vs. Behrensmeyer, 149 111. 496, 36 N. E. 983, 24
L. R.A. 59; Atchison v. Lucas, 83 Ky. 451; United States ex
rel. Crawford vs. Addison, 6 Wall. 291, 18 L. ed. 919; Naylor vs.
Carter, 167 .Okl. 125, 27 P. (2d) 843, 93 A. L. R. 254, and annotation.
"* * * * * * judgment was entered in favor of plaintiff, and defendant appeals.
* "An official salary is not made dependent upon the amount of work
"The appropriate rule is that where it appears the de facto officer
is not a mere intruder or usurper, but has acted in good faith and under
a fair color of title to the office, the de jure officer is limited in his
recovery of the de facto officer to the fees or salary received, less the
amount necessarily and actually expended in conducting the office.
See Albright v. Sandoval, 216 U. S. 331, 30 S. Ct. 318, 54 L. ed. 502,
affirming judgment Sandoval vs. Albright, 14 N. 345, 93 R 717, ?19;
Id., 14 N. M' 434, 94 P. 947; Lawrence vs. ' 90 Kan. 666, 136 R 315;
Jansky vs. Baldwin, 120 Kan. 24 , 1036, 47 A. L. R. 476; People ex
rel. Benoit vs. Miller, 24 Mich. 458, 9 Am. Rep. 131; Wenner vs. Smith'
4 Utah, 238, 9 P 293; Crosby vs. Hurley, 1 Alcock & N. 431;
Bier vs. Gorrel, 30 W. a. ' S. E' 30, 8 8 Am. St. Rep. 17;
Mayfield vs. Moore, 53 111. 428 Am. p. 52; Lansing vs. Van Gorder,
24 Mich. 456." S. W. rd v. Ledford, [1935, Court of Appeals of
Kentucky] 81 S. W. [2d] 569.)
743
VOL. 91, AUGUST 7, 1952 743
Rodriguez vs. Tan
De las dos decisiones del Estado de Michigan citamos una:
ADMELEC Cases
142
"Plaintiff and defendant were candidates for the office of village
president at the election held in the village of Ecorse on March 9, 1936.
Defendant Voisine was a candidate to succeed himself. According to
the return of the election inspectors, Voisine received a majority of one
vote and was, therefore, declared elected. Plaintiff Hawkins
demanded a recount which was accordingly held by the board of
canvassers, resulting in a majority of 10 votes for defendant Voisine.
Thereafter, on April 25, 1936, plaintiff instituted proceedings in the
nature of quo warranto to try title to the office, and on March 17, 1937,
determined by the canvassers by drawing lots under provisions of 1
Comp. Laws 1929, Sec. 3192 (Stat. Ann., Sec. 6, 481). The judgment
of the circuit court was appealed to the supreme court by defendant
Voisine, and the judgment of the trial court was affirmed. On May 3,
1938, at the drawing of lots plaintiff Hawkins' won. * * *. Plaintiff then
filed suggestion of damages, pursuant to 3 Comp. Laws 1929, Section
15278 (Stat. Ann., Sec. 27.2322, * * *. On trial in the circuit court,
done, but belongs to the office itself without regard to the personal
service of the officer. (People v. Miller, 24 Mich. 458, 9 Am. Rep. 131."
(Hawkins v. Voisine, [1940, Supreme Court of Michigan] 290 N. W.,
827.)
De las dos decisiones del Estado de Deleware citamos una:
"The special count of the declaration alleged that between January 7,
1941, and April 1, 1943, the Levy Court of Kent County, believing that
the defendant had been duly elected to the office of County
Comptroller for Kent County at the general election held on November
5, 1940, for the term of four years beginning on January 7, 1941, and
was entitled to the salary appertaining to the office, paid to the
defendant from the monies of Kent County the total sum of $4,397.63
as the salary due to the duly elected holder of the office for the period
between January 7, 1941, and March 16, 1943, which amount the
defendant received and accepted as the salary appertaining to the
office for the stated period; that thereafter the Superior Court of Kent
County, constituting the Board of Canvass for the election, as directed
by order of the Supreme Court, on March 11, 1943, recanvassed the
votes given at the election for the office of County Comptroller and
ascertained that the plaintiff has been duly elected to the office for the

statutory term beginning on January 7, 1941, and issued to him a
certificate
744
744 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
of election, at the same time rescinding the certificate of election
theretofore issued to the defendant; and that, thereupon, the plaintiff
duly qualified, entered into and now occupies the office; wherefore,
the defendant became liable to pay to the plaintiff and in consideration
thereof promised to pay to him the sum of $4,397.63 received as the
salary of the office.
"The not unusual case is presented in which one whose right to a
public office has been judicially determined seeks to recover from
another in possession under color of title the emoluments of the office.
"The great weight of authority supports the rule that the rightful
incumbent of a public office may recover from an officer de facto the
salary received by the latter during the time of his wrongful tenure,
even though he entered into the office in good faith and under color of
title. The reasons advanced in support of the rule are quite generally
regarded as unanswerable. To prevent embarrassment of the public
service disbursing officers, charged with the duty of paying official
salaries, may rely on the apparent title of an officer de facto, and treat
him as an officer de jure without further inquiry; and the payment of
the salary to a de facto public officer in possession is a good defense
to an action brought by the de jure officer to recover from the public
the same salary after he has established his right to the office. But as
between the de jure officer and the de facto officer, the emoluments
of a public office are incident to the title and not to the possession even
though colorable." (Walker v. Hughes, 1944, Delaware Supreme
Court, 151 A. L. R., 946.)
Una decision reciente del Tribunal Supremo de Apelación del Estado
de Virginia es la siguiente:
"In November, 1939, A. A. Fleming and W. M. McFall were elected to
the respective offices of sheriff and treasurer of Dickenson county, and
duly qualified as such for the term beginning January 1, 1940, and
ending December 31, 1943.
"At the election held in November, 1943, both of the incumbents
were unsuccessful candidates to succeed themselves for the four-
ADMELEC Cases
143
year term beginning January 1, 1944, and ending December 31, 1947.
On the face of the returns Fleming was defeated for the office of sheriff
by J. H. Anderson, who received a certificate of election, qualified, took
over and performed the duties of that office until July 16, 1946.
Likewise, on the face of the returns, McFall was defeated for the office
of treasurer by Charles P. Mullins, who received a certificate of
election, qualified, took over and performed the duties of that office
until July 16, 1946.
745
VOL. 91, AUGUST 7, 1952 745
Rodriguez vs. Tan
"On July 9, 1946, in a proceeding to contest the election, the Circuit
Court of Dickenson county held that, 'because of the fraud and
irregularities and improper conduct of the parties holding the election,
and the friends and adherents of the candidates,' the purported
election was void, and accordingly the certificates of election issued
to Anderson and Mullins, showing them to have been elected as sheriff
and treasurer, respectively, of the county, were canceled as of July
16, 1946. Thereupon, pursuant to Code, section 136, the court
appointed Cowan Edwards, as sheriff, and W. B. Trivett, as treasurer,
for the four year term beginning January 1, 1944.
"On February 12, 1947, Fleming filed a notice of motion for
judgment against Anderson, and each of the latter's deputies, to
recover the salaries and emoluments of office which the defendants
had received from January 1, 1944, to July 16, 1946, amounting, it
was alleged, to approximately $40,000.
"About the same time McFall filed a similar notice of motion for
judgment against Mullins, and the latter's deputies, to recover the
salaries which the defendants had received during the same period,
and alleged to be approximately $26,000.
* * * * * * *
''It is, of course, well settled that, 'Compensation for services
performed by a public officer is an incident to the office and belongs
to the de jure officer. Although he may not in some jurisdictions
recover from the state or municipality which has paid the
compensation to a de facto officer, he nevertheless has the right in
most states upon establishing his title to the office to recover from the

de facto officer whatever sums have been paid that officer by way of
salary, fees, or emoluments, even though the latter may have
performed the duties of the office pursuant to an erroneous judgment,
or may have held a certificate of election and entered into the office in
good faith. It is not a question of intention, but one of legal right to the
compensation in dispute. The underlying principle is that the de facto
officer before entering on the discharge of the duties of the office and
receiving its emoluments is bound to know whether he has title. * * *."
(Fleming v. Anderson et al. y Mcfall v. Mullins et al., [June 14, 1948]
48 S. E. (2d) 209.)
De las varias decisiones transcritas en parte se verá que la causa de
Stuhr contra Curran, de New Jersey, es la única nota discordante en
la doctrina adoptada por varios Tribunales Supremos al efecto de que
el funcionario de jure puede recobrar del funcionario de facto los
emolumentos que éste haya recibido, y esto tiene su explicación:
746
746 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
en New Jersey el que no asume el cargo electivo está sujeto a pena.
En Stuhr contra Curran la votación fué de 6 contra 5, y entre los
disidentes figuraba el Presidente del Tribunal.
No está desprovisto de fundamento la suposición de que la
doctrina anglosajona que dispone la restitución del sueldo al
funcionario de jure afianza la estabilidad del gobierno por elección;
pues, a pesar de los fraudes electorales a que de cuando en cuando
se recurre para ganar una elección, no se emplea la fuerza para
vengar agravios. Los perjudicados acuden a los tribunales, y, si tienen
razón, ocupan el cargo y reciben los emolumentos del que lo ocupó
indebidamente. Los filipinos también tienen acceso a los tribunales;
pero, para los perjudicados, ¿ qué vale una decision favorable cuando
está ya por expirar el cargo, objeto de la protesta, y los emolumentos
se quedan en poder del funcionario de facto? La victoria es huera,
casi inútil.
Res judicata, no tiene aplicación al caso presente. Es verdad que
el demandante suscitó ante el Tribunal Electoral del Senado la
restitución a él por el demandado de los sueldos que hubiese recibido
y que dicho Tribunal no la resolvió expresamente. La mayoría
considera la abstención como una denegación sub silentio. Esto no
constituye decision. ¿ Cómo puede equipararse una omisión a una
ADMELEC Cases
144
denegación? El silencio del tribunal sobre una cuestión suscitada no
equivale a denegación. Denegar una petición es una acción positiva.
El silencio no es actuación: es abstención. En la abstención no existe
decision. Sin decision no existe res judicata. ¿ Como se puede probar
la defensa de res judicata, en el caso presente si no existe decisión?
"Una sentencia es la conclusion de derecho sobre la materia que obra
en autos, o la aplicación del derecho a las alegaciones y a los hechos,
tal y como los ha apreciado el tribunal, o tal y como lo han admitido
las partes, o como se considere que existen en virtud de su
incomparecencia en el curso de unas actuaciones judiciales. La
sentencia es solamente aquello que se pronuncia en cuanto
747
VOL. 91, AUGUST 7, 1952 747
Rodriguez vs. Tan
a las partes de un juicio en vista de lo que se somete al tribunal para
su decision." (Gotamco contra Chan Seng y Razón, 46 Jur. Fil., 567.)
Por otra parte, la abstención del Tribunal Electoral pudo haber sido
motivada por la falta de jurisdicción, y no por carecer de base legal y
justificación la reclamación del demandante, pues la Constitución
dispone que dicho Tribunal "conocerá exclusivamente de todas las
controversias relativas al resultado de las elecciones y a las
calificaciones de los miembros del Senado." El Tribunal Electoral tiene
jurisdicción para decidir quien fué legalmente elegido, tiene facultades
para determinar si el electo está debidamente habilitado para ser
miembro del Congreso; pero no tiene jurisdicción para decidir u
ordenar que los salarios recibidos por el protestado sean restituídos
al protestante vencedor. La facultad de ordenar la restitución de
determinada cantidad de dinero está encomendada a los tribunales
de jurisdicción general, y no al Tribunal Electoral que es de
jurisdicción especial limitada.
Está completamente desprovista de base la presunción de que el
silencio del Tribunal Electoral del Senado equivale a denegación de
la reclamación del demandante. Y aun suponiendo que la presunción
este bien f undada, la decision sub silentio tampoco constituye res
judicata porque la dictó un tribunal sin jurisdicción.
La contención del demandado de que la decision de
Kare contra Locsin resuelve el caso presente, carece de base. Este
Tribunal en dicho asunto dijo: "Locsin cobro su sueldo en virtud de
una resolución y por autorización de la Legislatura. No puede
discutirse en esta demanda la propiedad de esos pagos. * * * Es

posible que la Legislatura pudo haber requerido el reembolso, por
Locsin, si hubiera sido su intención reconocer la reclamación del Sr.
Kare sobre la misma compensación; pero no habiéndolo hecho así, el
derecho preferente de Locsin a esta compensación es cosa juzgada
para los tribunales." En el caso presente no aparece que el
demandado haya cobrado su
748
748 PHILIPPINE REPORTS ANNOTATED
Rodriguez vs. Tan
sueldo "en virtud de una resolución y por autorización de la
Legislatura" o del Senado. El demandado, como cosa rutinaria, recibió
su sueldo como cualquier otro empleado. No recibió su sueldo "en
virtud de una resolución y por autorización de la Legislatura."
Es verdad que el demandante suscitó en el mismo expediente de
protesta ante el Tribunal Electoral del Senado la restitución a él de los
emolumentos recibidos por el demandado; pero dicho Tribunal no
resolvió la cuestión y, aunque hubiera resuelto, su resolución no
tendría ningún efecto porque, como ya hemos dicho, no tenía
jurisdiccións obre la materia. El Tribunal Electoral no es el mismo
Senado que "en virtud de una resolución" puede disponer el pago del
sueldo o disponer la restitución al demandante por el demandado del
sueldo recibido por él o el pago a ambos. No hay paridad, por tanto,
entre el caso presente y el asunto de Kare contra Locsin.
La ley No. 103 dispone que en las disputas industriales y agrícolas
el Tribunal Industrial actúe de acuerdo con la justicia y equidad;
encomienda al recto sentido de los miembros del Tribunal porque no
existe un remedio específico legal que determine la acción que debe
tomar en cada caso particular. Este Tribunal en varias ocasiones
aplicó los principios de la equidad desatendiendo las injusticias de
algunas leyes. No veo la razón por que en casos como el presente
este Tribunal no puede decidir aplicando principios de justicia
generalmente adoptados para afianzar la estabilidad del gobierno y
evitar los golpes de estado que solemos ver en las repúblicas
sudamericanas. "Cuando no haya ley exactamente aplicable al punto
controvertido, se aplicará la costumbre del lugar y, en su defecto, los
principios generales del derecho," (art. 6 del Código Civil.)
La ley electoral es de origen americano. No es, por tanto, impropio
adoptar precedentes americanos en cuanto a su aplicación, El
sufragio popular es la piedra angular de las instituciones
democráticas. Los pueblos anglosa-
ADMELEC Cases
145
749
VOL. 91, AUGUST 7, 1952 749
Rodriguez vs, Tan
jones son los que ejercen el derecho del sufragio de una manera
admirable; cambian pacíficamente de gobernantes sin
derramamiento innecesario de sangre y sin convulsíones morbosas.
Sus prácticas, su interpretación y aplicación de las leyes del sufragio
no deben ser desatendidas; al contrario, deben ser adoptadas si son
razonables y justas.
"Un examen de las decisiones recientes de la Jurisprudencia Filipina,
y en particular las de los últimos años, demuestra que cada vez más
se invocan las autoridades inglesas y americanas para la formación
de lo que pudiera llamarse derecho consuetudinario filipino, como
suplementario del derecho codificado de esta jurisdicción. Un análisis
de dos grupos de decisiones recientes, el primero que comprende
materias tratadas por las leyes españolas, y el segundo las tratadas
por la legislación americana-filipina, y afectadas por el cambio de
soberanía, demuestra que el derecho casuista anglo-americano ha
venido a introducirse prácticamente en todas las materias importantes
del campo jurídico, y que en la gran mayoría de estas materias ha
formado la única base que sirve de guía a este Tribunal en el
desarrollo de la jurisprudencia local.
"Durante los últimos veinte años se ha desarrollado un derecho
consuetudinario filipino o derecho casuístico, basado casi
exclusivamente, salvo cuando pugna con las costumbres e
instituciones locales, en el derecho consuetudinario anglo-americano.
El derecho consuetudinario filipino suple y amplía nuestro derecho
codificado.
'La jurisprudencia de esta jurisdicción se funda en el derecho
consuetudinario inglés, en su forma actual de derecho
consuetudinario anglo-americano, casi en una extension exclusiva.
"Se ha desarrollado, y seguirá desarrollándose, un derecho
consuetudinario en la jurisprudencia de esta jurisdicción (que, con el
fin de diferenciarlo, puede propiamente denominarse derecho
consuetudinario filipino), fundado en el derecho común inglés en su
forma actual de derecho consuetudinario anglo-americano, cuyo
derecho común es efectivo en todas las materias de derecho en esta
jurisdicción on tanto en cuanto no esté en pugna con la fraseología
expresa del derecho escrito ni con las costumbres o instituciones
locales.

"Al interpretar y aplicar el cuerpo del derecho escrito de esta
jurisdicción, y al dictar decisiones en casos no comprendidos en el
derecho escrito, este Tribunal se funda en las teorías y precedentes
de los casos anglo-americanos, con sujeción a la excepción limitada
de aquellos casos en que lo que queda del derecho español escrito
presenta teorías de derecho civil bien definidas, y de los pocos casos
750
750 PHILIPPINE REPORTS ANNOTATED
Jabon, et al. vs. Alo
en que dichos precedentes son incompatibles con las costumbres e
instituciones locales." (Asunto de Shoop, 41 Jur. Fil., 226.)
No debemos olvidar que estamos formando el derecho común filipino
con los elementos más valiosos que nos proporcionan el derecho
romano, español y anglosajón.
En mi humilde opinion, debe revocarse la orden apelada.
Tuason, J., concurs.
Judgment affirmed.
No. L-781. Noviembre 29, 1946]
CEFERINO M. REGALA, recurrente, contra EL JUEZ DEL JuzGADO
DE PRIMERA INSTANCIA DE BATAAN, recurrido.
1. 1.FUNCIONARIOS PÚBLICOS; JUEZ
FACTO"; DESAPROBACIÓN
NOMBRAMIENTO; FALTA DE CONOCIMIENTO; VALIDEZ
DE ACTUACIONES OFICIALES.—Un Juez
desempeña su cargo antes de enterarse de la
desaprobación de su nombramiento es un juez de
facto. Todas sus actuaciones oficiales, como juez de
facto, son tan válidas para todos los fines legales y para toda
clase de asuntos, como las de un juez de jure.
1. 2.PROCEDIMIENTO CRIMINAL; QUERELLA; ENMIENDA
DE FORMA; CASO DE AUTOS.—La inclusion de dos
ADMELEC Cases
146
acusados y la adición de las palabras: "by conspiring,
confederating and helping one another" en la querella
enmendada es una enmienda de forma. En la primera
querella se acusa al recurrente de autor y en
685
VOL. 77, NOVEMBER 29, 1946 685
Regala vs. Court of First Instance of Bataan
1. la enmendada de coautor, pero su responsabilidad es la
misma en ambas. El cambio solo se refiere a la forma de
ejecución del delito; pero no a la sustancia del delito mismo.
La forma de ejecución es más bien materia de pruebas y no
de alegaciones, y los detalles alegados en la querella
enmendada pudieron haberse probado bajo la querella
original.
1. 3.ID.; ID.; ENMIENDA; ERROR AL PERMITIR, DE
PROCEDIMIENTO ; CORRECCIÓN EN APELACIÓN, NO
EN CERTIORARI.—Si el Juez actuó con infracción o no del
Reglamento al permitir la enmienda fué a lo más un error de
procedimiento, y no un abuso de discreción, ni exceso o falta
de jurisdicción. Tal error, si lo es en realidad, puede ser
corregido en apelación, después de dictada sentencia
definitiva en primera instancia, y no en una acción
de certiorari.
"DE
DE
1. 4.CERTIORARI ; CUÁNDO PROCEDE.—Solamente
procede el remedio de certiorari cuando un tribunal, en el
que
ejercicio de sus funciones judiciales, haya actuado sin
jurisdicción o con exceso de ella o con grave abuso de
discreción y que, en la tramitación ordinaria, no tiene el
recurrente el remedio sencillo y expedito de apelación
(Regla No. 67, artículo 1). Si por cada error cometido por un
juzgado inferior se permitiese corregirlo por medio del
recurso de certiorari, los asuntos serían interminables.
JUICIO ORIGINAL en el Tribunal Supremo. Certiorari.

Los hechos aparecen relacionados en la decision del Tribunal.
Sres. Hernández y Laquian en representación del recurrente.
El Juez recurrido en su propia representación
PABLO, M.:
El recurrente es acusado en la causa criminal No. 4307 del Juzgado
de Primera Instancia de Bataan por el delito de asesinato. En mayo
20, 1946 fué informado de la querella y se declaró no culpable. Los
testigos, según aquella, eran Wenceslao Cruz, Conrado Mañalac y
otros.
En junio 6, día designado para la vista, el Fiscal Provincial en vez
de aducir sus pruebas presentó una querella enmendada incluyendo
como acusados a los testigos nombrados en la querella, Wenceslao
Cruz y Conrado Mañalac. En esta segunda querella se alegó que
entre el recurrente y sus dos co-acusados hubo conspiración,
confederación y
686
686 PHILIPPINE REPORTS ANNOTATED
Regala vs. Court of First Instance of Bataan
ayuda mutua para cometer el delito. Admitida por el juzgado la
querella enmendada, el Fiscal Provincial presentó inmediatamente
una moción en la que pidió el sobreseimiento de la querella en cuanto
a los acusados Conrado Mañalac y Wenceslao Cruz para ser
utilizados como testigos de la acusación, alegando las cinco
condiciones que requiere el artículo 9, Regla 115. A esta petición
accedió el Juez en su orden de 6 de junio de 1946.
En junio 14 el recurrente presentó el aviso de apelación contra
dicha orden, y fué denegada el 19 del mismo mes.
En junio 26 el recurrente presentó una moción de reconsideración
que fué denegada en 11 de julio.
Alegando estos hechos, el recurrente presentó su petición original
de certiorari pidiendo que sean anuladas por este Tribunal las
órdenes de 6 de junio y 11 de Julio de 1946 del Juzgado de Primera
Instancia de Bataan. El recurrente alega que si no se diese curso a
su citada apelación se causaría irreparable daño a sus derechos
sustanciales porque no tiene otro remedio fácil, sencillo y adecuado.
En caso de condena, el acusado puede apelar y en el juzgado ad
ADMELEC Cases
147
quem puede discutir todos los errores cometidos por el juzgado
inferior. Es el remedio ordinario que concede la legislación vigente.
El recurrente alega que la orden del juez de 11 de julio denegando
la moción de reconsideración es nula y de ningún valor porque dicho
juez obró sin jurisdicción, pues su nombramiento no ha sido aprobado
por la Comisión de Nombramientos, según publicó un periódico de la
misma fecha. No consta en autos que el juez haya tenido
conocimiento de tal desaprobación antes de dictar su orden,
impugnada de ilegal. Un juez que desempeña su cargo antes de
enterarse de la desaprobación de su nombramiento es un juez de
facto. Todas sus actuaciones oficiales, como juez de facto, son tan
válidas para todos los fines legales y para toda clase de asuntos,
como las de un juez de jure. (Tayko contra Capistrano, 53 Jur. Fil.,
923.)
El recurrente y los disidentes arguyen que el juez, al permitir la
inclusion de dos acusados y la adición de las
687
VOL. 77, NOVEMBER 29, 1946 687
Regala vs. Court of First Instance of Bataan
palabras: "by conspiring, confederating and helping one another" en
la querella enmendada, abusó de su discreción con infracción del
artículo 13, Regla 106 porque se trata de una enmienda substancial.
No creemos que esa enmienda sea tal. En la primera querella se
acusa al recurrente de autor y en la enmendada de coautor, pero su
responsabilidad es la misma en ambas. El cambio sólo se refiere a la
forma de ejecución del delito; pero no a la substancia del delito mismo.
La forma de ejecución es más bien materia de pruebas y no de
alegaciones, y los detalles alegados en la querella enmendada
pudieron haberse probado bajo la querella original.
"Los solicitantes en este expediente de certiorari, acusados en una
querella por asesinato, alegan que el juzgado se excedió de su
jurisdicción y abusó de ella al permitir la enmienda de la querella. En
la querella original se alegaba que Bruno Arévalo iba armado de
cortaplumas y Cecilio Arévalo de revólver. En la querella enmendada,
que fué admitida, se alega que Bruno Arévalo era el que llevaba el
revolver y Cecilio Arévalo el cortaplumas.
"En nuestra opinion, el juzgado no abusó de su discreción. La
enmienda de la querella era meramente de forma. No afecta ni altera
la naturaleza del delito, pues, sea Bruno o Cecilio el que haya
causado la herida mortal, el delito sería el mismo. Tampoco afecta a

la extension de la responsabilidad de los solicitantes, toda vez que,
alegándose en la querella que ambos acusados conspiraron y se
ayudaron el uno al otro para cometer el delito, serían responsables en
la misma medida, sea uno u otro el que infirió la herida que produjo la
muerte del occiso. Es, por tanto, una enmienda puramente de forma
que no altera sustancialmente la querella ni afecta a los derechos de
los acusados." (Arévalo y Arévalo contra Nepomuceno, 63 Jur. Fil.,
665.)
Además, si el juez actuó con infracción o no del Reglamento fué a lo
más un error de procedimiento, y no un abuso de discreción, ni exceso
o falta de jurisdicción. Tal error, si lo es en realidad, puede ser
corregido en apelación, después de dictada sentencia definitiva en
primera instancia, y no en una acción de certiorari.
Solamente procede el remedio de certiorari cuando un tribunal, en
el ejercicio de sus funciones judiciales, haya actuado sin jurisdicción
o con exceso de ella o con grave
688
688 PHILIPPINE REPORTS ANNOTATED
Regala vs. Court of First Instance of Bataan
abuso de discreción y que, en la tramitación ordinaria, no tiene el
recurrente el remedio sencillo y expedito de apelación (Regla 67,
artículo 1). Si por cada error cometido por un juzgado inferior se
permitiese corregirlo por medio del recurso de certiorari, los asuntos
serían interminables.
Se deniega la solicitud con las costas contra el recurrente.
Moran, Pres., Parás, Bengzon, y Padilla,, MM., están
conformes.
FERIA, J., with whom concurs TUASON, J., concurring:
I concur in the result for the following reasons: According to section 1,
Rule 67, certiorari lies when a tribunal or officer exercising judicial
functions has acted without or in excess of its jurisdiction, or with grave
abuse of discretion, and there is no appeal nor any plain, speedy, and
adequate remedy in the ordinary course of law.
There is no doubt that appeal does not lie against an order of a
court admitting or denying the amendment of a complaint or
information, because such order is incidental or interlocutory and not
final in character, that is, it does not put an end to the ordinary
ADMELEC Cases
148
proceedings of the case in court. Interlocutory or incidental order may
be impugned as erroneous in the appellate court, when appeal is
taken from the judgment or order of the lower court which is final in
character.
The question to determine, therefore, is whether or not the
respondent judge acted (a) without or in excess of the court's
jurisdiction, or (b) with grave abuse of discretion, in allowing the
amendment of the information in this case.
(a) As to the first question, it is a well known rule that a court having
jurisdiction over the offense charged and the territory wherein it was
committed, has also jurisdiction to decide all questions incidental to
the criminal proceeding, such as the sufficiency of a complaint or
information, the authority of the fiscal to file or amend an information,
or whether the defendant has been pre-
689
VOL. 77, NOVEMBER 29, 1946 689
Regala vs. Court of First Instance of Bataan
viously convicted or in jeopardy of being convicted or acquitted of the
offense charged, or is insane. If the decision or resolution on such
questions is not in conformity with or against the law, the court would
commit an error, but not exceed its jurisdiction. A judge would act in
excess of the court's jurisdiction if he performs or does an act which
he has no power or authority to do, in connection with the proceeding
over which the court has jurisdiction. But to decide erroneously a
question which it is within the court's jurisdiction to decide, is not acting
beyond or in excess of its jurisdiction. To hold otherwise would be to
sustain the absurdity that a court acts within its jurisdiction if it decides
a case in conformity with the law, and in excess of its jurisdiction if its
decision is erroneous or contrary to law.
From the foregoing, it necessarily follows that the decision or order
of the respondent judge allowing the amendment of the information
after the defendant petitioner has pleaded would be erroneous if it is
an amendment of substance and not of form, but it would not be an
act beyond or in excess of the court's jurisdiction, because the court
has power or jurisdiction to decide that question. The respondent
judge has not, therefore, acted without or in excess of the court's
jurisdiction in allowing the amendment of the information, however
erroneous that resolution may be.
(b) With respect to the second, it goes without saying, for it is of
common sense, that if a person has no power to do an act, and

therefore no discretion to do or not to do it, it cannot be said that he
has acted within, or with grave abuse of, his discretion in doing or not
doing it. No one may abuse a thing that he does not have. If the
respondent judge has no discretion to act in one way or another, as in
the present case, he could not have acted with grave abuse of
discretion, for he can not abuse a discretion which he does not have.
690
690 PHILIPPINE REPORTS ANNOTATED
Regala vs. Court of First Instance of Bataan
Therefore the question is reduced to whether or not the court has
power to allow the amendment in substance of an information after the
defendant has pleaded. If it has no power to permit such amendment,
it does have discretion to allow it or not because discretion supposes
power to do.
Section 13, Rule 106 of the Rules of Court, provides:
"SEC. 13. Amendment.—The information or complaint may be
amended, in substance or form, without leave of court, at any time
before the defendant pleads; and thereafter and during the trial as to
all matters of form, by leave and at the discretion of the court, when
the same can be done without prejudice to the rights of the defendant."
According to the above quoted provisions, after the defendant has
pleaded, the court has power and discretion to allow the amendment
of an information or complaint in matters of form, but not in matters of
substance. The court having no power to allow amendment in
substance it could not have discretion to allow it or not, and hence it
could not have acted with grave abuse of discretion, which the court
did not have. Therefore, the respondent judge has not acted with
grave abuse of discretion in admitting the amendment, even assuming
that the amendment is of substance.
Wherefore, certiorari does not lie in the present case, and the
petition is denied.
HILADO, J., with whom concurs PERFECTO, /., dissenting:
I dissent.
Paragraph 6 of the petition alleges that on May 20, 1946, petitioner
was arraigned upon the information first filed by the Provincial Fiscal
under date of May 6, 1946. In that original information the act imputed
upon the petitioner, and upon him alone, was that of having killed one
ADMELEC Cases
149
Efrain Brillo by shooting with a firearm. After petitioner had thus been
arraigned, the Provincial Fiscal presented an amended information
dated June 5, 1946,
691
VOL. 77, NOVEMBER 29, 1946 691
Regala vs. Court of First Instance of Bataan
charging three persons, namely, petitioner Ceferino M. Regala, one
Conrado Mañalac and one Wenceslao Cruz with the act of having
killed Efrain Brillo by shooting with a firearm, the amended information
charging that said three accused conspired, confederated and helped
one another in thus killing Efrain Brillo.
Paragraph 5 of the respondent's answer expressly admits that
petitioner had already pleaded not guilty to the original information
when the respondent court ordered the discharge of the two new
defendants Conrado Mañalac and Wenceslao Cruz. That discharge
was so ordered upon the Provincial Fiscal's motion of June 5, 1946,
quoted in paragraph 8 of the petition.
It, therefore, appears that the amendment of the information was
made by the Provincial Fiscal and allowed by the respondent
court after the defendant (now petitioner) had pleaded not guilty to the
original information.
Was the amendment merely formal, or was it substantial? To
charge a person with having alone killed another is not the same as to
charge him and two others with the killing. That the first act is
substantially—nay, essentially—different from the second is to my
mind too obvious to require argument. The first act is the act of
only one individual while the second is the act of three. The first act, if
duly proven, will produce the conviction of only one person; while the
second, if duly established, will result in the conviction of three. To say
that the act of one person is substantially the same as the act
of three persons, would virtually be tantamount to saying that one and
three are the same. How, then, can the first and the second acts be
substantially the same? Consequently, in the amended information
petitioner was charged with an act entirely different and distinct from
that charged against him in the original information. Hence, the
amendment was not merely in form but in substance. The subsequent
discharge of the accused Conrado Mañalac and Wenceslao Cruz
could not, of course, alter the principle.
692

692 PHILIPPINE REPORTS ANNOTATED
Regala vs. Court of First Instance of Bataan
The amendment does not refer merely to the form of execution of the
crime. If the one executing were the same person in both cases, then
the statement would be correct. But such is not the situation here—
Ceferino M. Regala, Conrado Mañalac and Wenceslao Cruz, the
alleged perpetrators of the crime according to the amended
information, are not the same as Ceferino M. Regala,
the sole offender according to the original information.
To further support their thesis, the majority affirm that the form of
execution is rather a matter of evidence than of allegations, and that
the details alleged in the amended information could have been
proven under the original information. We beg to point out the
weakness of the argument: by proving the so-called details under the
original information the conviction of the three killers could never have
been attained for the simple reason that two of them were not being
prosecuted under said original information; while by proving the
allegations of the amended information (to test the strength of the
argument we must suppose that Conrado Mañalac and Wenceslao
Cruz were not discharged) the conviction of all three defendants
would have been secured. This difference between the two
hypotheses spells the difference between the original and amended
informations, a difference which necessarily involves a substantial
change in the charge. The charge under the amended information is
no less substantially different from the charge contained in the original
information than the difference between three and one. The case of
Arevalo and Arevalo vs. Nepomuceno (63 Phil., 627), is not in point.
There the accused under the original and amended informations were
the same two persons, Bruno Arevalo and Cecilio Arevalo, the only
difference in the allegations consisting in the detail of which one of
them was armed with a penknife and which was armed with a revolver,
but in the original information, as well as in the amended one, the
accused were the self-same two persons. There it was rightly said that
whether Bruno
693
VOL. 77, NOVEMBER 29, 1946 693
Regala vs. Court of First Instance of Bataan
was armed with a penknife and Cecilio with a revolver or vice versa,
since they were charged with having conspired and helped each other
ADMELEC Cases
150
in the commission of the crime, both could be convicted to the same
extent in one or the other case.
In the case at bar, if it had been alleged in the amended information
that the accused Regala ordered Conrado Mañalac and Wenceslao
Cruz to kill Efrain Brillo and only the said Regala was charged with the
crime, it might be contended with stronger reason that the change was
merely in the form of execution. But such is not the case, as already
demonstrated above.
Another substantial amendment involved in the change from the
original to the amended information is the augmentation of the
jeopardy or danger of punishment to which the accused was
subjected. Under the original information, in order to convict him, the
evidence must establish beyond reasonable doubt that he, by his own
direct act, killed the victim. Under the amended information, after proof
of conspiracy between him and his two co-accused, he could be
convicted as co-author of the crime even without proof of his having
personally and directly killed or physically participated in the killing of
the victim, if sufficient evidence were adduced proving that the other
two or anyone of the other two accused committed the direct act of
killing. The amendment which gives rise to this difference of danger of
punishment can not in any rational sense be called merely formal.
Neither can I agree with the view of the majority that we are here
concerned at most with an error of procedure, and not an abuse of
discretion. Neither can I subscribe to the corollary of said proposition,
that the error is only corregible by appeal and not
through certiorari. That we are dealing with the exercise—according
to my theory, with a grave abuse—of the Court's discretion, is patent
from the provision of Rule 106, section 13 which says that after plea
and during the trial the information or com-
694
694 PHILIPPINE REPORTS ANNOTATED
Regala vs. Court of First Instance of Bataan
plaint may be amended as to all matters of form (and may I add, as to
matters of form only) by leave and "at the discretion of the court,"
when the same can be done without prejudice to the rights of the
defendant.
Rule 106, section 13, in providing that after plea, and during the
trial the information or complaint may be amended "as to all matters
of form," by leave and at the discretion of the court, when the same
can be done without prejudice to the rights of the defendant,

necessarily denies all power and discretion to the court, at that stage
of the proceedings, to allow any amendment in substance.
The present Chief Justice of this court, in his Commentaries on the
Rules of Court (Vol. II, 1940 ed., p. 389), in part says:
"Under this section, the amendment of the complaint or information,
either in substance or in form, is as to the plaintiff, practically a matter
of right, if made before the defendant pleads; thereafter, amendments
are at the discretion of the court and then only as to matters of form. *
* *" (Italics supplied.)
This leads to the conclusion that the respondent court acted with grave
abuse of its discretion in allowing the amendment in question.
And I am of opinion, with all due respect to the majority, that this
action of the lower court may and should be corrected by certiorari.
But it is said that appeal was the proper remedy. I understand this
to mean that the accused, now petitioner, should go into trial under the
amended information, await judgment and, if convicted, appeal
therefrom, and only upon such appeal should he be allowed to
complain against the error which, to my mind, was palpably committed
by the respondent court. Supposing that upon that appeal it should be
decided that the error was really committed by the trial court. What
then would the appellate court do? To correct the error, it must declare
that the amended information was erroneously admitted; and that the
trial court had gravely abused its discretion in so admitting said
pleading. In such a case the amended information
695
VOL. 77, NOVEMBER 29, 1946 695
Regala vs. Court of First Instance of Bataan
will necessarily be held illegally admitted; and I can not see how the
appellate court can then avoid declaring invalid all the proceedings
had thereunder, and to which the accused will have been so injuriously
subjected.
The error under consideration is of such nature by reason of its
incidence, that, if it should be declared to have been committed, all the
proceedings had under the amended information would have to be
annulled and the case would need a re-trial. Such an error should, I
think, be distinguished from an error corregible upon appeal without
need of annulling the proceedings in the court below and remanding
the case for re-trial. The first kind of error strikes at the very foundation
of the proceedings below, while the second merely concerns details
ADMELEC Cases
151
of such proceedings. In the first, appeal will fall far short of being a
speedy and adequate remedy; in the second, it will not. It is in cases
of the first class only where I think certiorari is the proper remedy. All
other cases would fall under the second class, and we can safely say
they constitute by far the greater number.
We must remember that this is not a civil case—it is a criminal
prosecution for murder, during the progress and pendency of which—
it may well last over one year—the accused, who is presumed to be
innocent until validly convicted, will be subjected to the moral and
nervous torture incident to the nature of the case, and even his
personal liberty may be adversely affected if he be denied bail.
In view of the foregoing considerations, I submit that appeal would
f all f ar short of being a speedy and adequate remedy for this
petitioner.
If the amended information is held to be invalid for having been
erroneously admitted, there should be no fear that this accused would
go unpunished without trial. In such a case the amended information
being invalid, the original information must be deemed never to have
been superseded thereby and, therefore, still stands. The accused
should then be prosecuted under the said original
696
696 PHILIPPINE REPORTS ANNOTATED
Regala vs. Court of First Instance of Bataan
information. But if this court should hold that a mistake has been made
in charging the proper offense in the original information, then in that
case the Court of First Instance should be directed to dismiss the
original information and order the filing of a new one charging the
proper offense, provided the defendant would not be thereby placed
in double jeopardy, pursuant to Rule 106, section 13, second
paragraph.
I think petitioner is entitled to the writ of certiorari that he seeks,
and that this court should annul the action of the respondent court in
admitting the amended information and all proceedings had thereafter,
with the proper instructions.
BRIONES, M., disidente:
El artículo 13, Regla 106, del Reglamento de los Tribunales, prescribe
lo siguiente:

"SEC. 13. Amendment.—The information or complaint may be
amended, in substance or form, without leave of court, at any time
before the defendant pleads; and thereafter and during the trial as to
all matters of form, by leave and at the discretion of the court, when
the same can be done without prejudice to the rights of the defendant."
Nos. L-29777-83. March 26, 1971.
GREGORIO SOLIS, petitioner, vs. THE COURT OF APPEALS and
the PEOPLE OP THE PHILIPPINES, respondents.
Judgment; When judgment considered void.—A decision is void
if promulgated after the judge who rendered it had permanently
ceased to be a judge of the court where he sat in judgment. Thus, a
judgment is a nullity if it had been promulgated after the judge had
actually vacated the office and accepted another office; or when the
term of office of the judge has ended; or when he has left the Bench;
or after the fudge had vacated his post in view of the abolition of his
position as Judge-at-Large under Republic Act 1186; or after the
cessation or termination of his incumbency as such judge.
Same; Promulgation of judgment; Section 6 of Rule 116 of old
Rules of Court construed.—Section 6 of Rule 116 of the old Rules of
Court, allowing the dispensing with the presence of the judge in the
reading of a sentence, applies only to the physical absence of the
judge, being construed to mean that the decision of the judge may be
promulgated even without his presence, as long as he is still a judge
of that court. A sentence has been set aside where the judge who
presided in the Court of First Instance of Nueva Ecija had been
extended an ad interim appointment to the Court of First Instance of
Manila, to which position he qualified before the judgment was filed
with the Clerk of the former court. Nullity likewise attached to a
dismissal order when the temporary assignment of the judge that
rendered it had been terminated before the order was issued, because
a new judge for the same court qualified.
Same; Judge; De facto judge, defined.—A judge de facto is
defined as one who has the reputation of being the officer he assumes
to be and yet is not a good officer in point of law because there exists
some defect in his appointment or his right to exercise judicial
functions at the particular time (37 Phil. on page 192); but it is
“essential to the validity of the acts of a de facto judge, that he
ADMELEC Cases
152
is actually acting under some color of right” (case cit. on page 190). In
the present case, Judge Leuterio did not actually act or perform or
exercise the duties of judge when his decision was promulgated, as
he had ceased to be one, and the decision was promulgated under
another presiding judge.
PETITION for review on certiorari of the decision and orders of the
Court of Appeals.
The facts are stated in the opinion of the Court.
54
54 SUPREME COURT REPORTS ANNOTATED
Solis vs. Court of Appeals
Mario R. Silva for petitioner.
The Solicitor General for respondents.
REYES, J.B.L., J.:
Petition of Gregorio Solis for review on certiorari of the decision and
orders rendered by respondent Court of Appeals, in its Cases CA-G.R.
Nos. 14811-R to 14817-R entitled, “People of the Philippines vs.
Gregorio Solis, et al.,” affirming his conviction by former Judge Jose
N. Leuterio of the Court of First Instance of Camarines Sur.
Petitioner Gregorio Solis and several other co-accused were
indicted, tried and found guilty of malversation of public funds in
Criminal Cases Nos. 2510-2516 of the Court of First instance of
Camarines Sur. The judgment was penned and signed on 19 June
1954 by the Honorable Jose N. Leuterio, then Judge-at-Large
assigned to Camarines Sur.
All the accused were summoned to appear for promulgation of the
judgment on 19 June 1954, but no court proceeding was had on that
day, as the President of the Philippines had declared it a special public
holiday.
On 20 June 1954, Republic Act No. 1186, which abolished all
existing positions of Judges-at-Large, took effect without Executive
approval.
On 21 June 1954, the defendants appeared before the court; this
time, the court was presided over by Honorable Perfecto R. Palacio,
judge of another sala of the court. Judge Palacio promulgated the

judgment of Judge Leuterio, against the objections of herein petitioner.
Petitioner Solis appealed the judgment to the Court of
Appeals and the cases were docketed therein as CA-G.R. Nos.
14811-R to 14817-R. In said appellate court, he raised in issue and
attacked the validity of the promulgation of the judgment of the lower
court, for having been made by another judge after the incumbency of
the judge who rendered it had ceased.
55
VOL. 38, MARCH 26, 1971 55
Solis vs. Court of Appeals
The Solicitor-General’s brief, in the Court of Appeals, agreed that the
promulgation was illegal and void. Nevertheless, on 20 November
1965, the Court of Appeals promulgated its decision, modifying
petitioner’s sentence in CA-G.R. No. 14811-R, acquitting him in CA-
G.R. No. 14812-R and CA-G.R. No. 14813-R, and affirming the lower
court’s decision in CA-G.R. Nos. 14814-R to 14817-R; but petitioner’s
new counsel were not served a copy of the appellate court’s decision.
What they received was a notification, almost three (3) years later, that
is, on 25 August 1968, from the bondsman of petitioner, informing
them that the Court of First Instance of Camarines Sur had issued an
order for petitioner Solis to appear therein for execution of judgment
in the criminal cases.
It was only on 5 September 1968 that petitioner’s counsel received
a copy of the Court of Appeals’ decision.
On 29 August 1968 petitioner filed an urgent motion with the Court
of Appeals asking it to restrain the lower court from executing the
decision, to order the recall of the records, and to cause the service of
the decision of the Court of Appeals on petitioner’s counsel. Acting
thereon, the Court of Appeals directed its Deputy Clerk of Court to
send a telegram to the lower court to suspend execution of sentence,
required its Judgment Section to immediately serve a copy of the
decision, and to explain within ten (10) days why no copy had been
served on petitioner’s counsel; but the Court of Appeals did not order
the recall of the records.
On 21 September, the Court of Appeals denied petitioner’s motion
for the recall of the records but granted him a period of twenty (20)
days to file his motion for reconsideration of the decision. Thereupon,
notwithstanding the absence of the records in the Court of Appeals,
petitioner submitted his motion for reconsideration. It was denied on
28 October 1968.
ADMELEC Cases
153
Hence, on 11 November 1968, appellant Solis interposed in this
Court the present petition for review, squarely pre-
56
56 SUPREME COURT REPORTS ANNOTATED
Solis vs. Court of Appeals
senting the issue of the invalidity of the decision of the Court of First
Instance and of the legality of the actuations of the Court of Appeals
in remanding the records even before service of copy of its decision
on petitioner’s counsel and in arbitrarily refusing to have the records
recalled while the case was still pending before it.
The present case of certiorari was considered submitted for
decision without respondents’ brief,1 as the Office of the Solicitor
General manifested that “the only consistent stand that the People can
adopt is to agree with petitioner’s posture.”2
Upon the facts heretofore stated, the judgment of trial judge Jose
N. Leuterio was promulgated (on 21 June 1954) one (1) day after his
position as Judge-at-Large was abolished (on 20 June 1954) by
Republic Act 1186. The judgment is, therefore, void, for it is now firmly
established in our jurisprudence that a decision is void if promulgated
after the judge who rendered it had permanently ceased to be a judge
of the court where he sat in judgment. Thus, a judgment is a nullity if
it had been promulgated after the judge had actually vacated the office
and accepted another office;3 or when the term of office of the judge
has ended;4 or when he has left the Bench;5 or after the judge had
vacated his post in view of the abolition of his position as Judge-at-
Large under Republic Act 1186;6 or after the cessation or termination
of his incumbency as such judge. Section 6 of Rule 116 of the old
Rules of Court, allowing the dispensing with the presence of the judge
in the reading of a sentence, applies only to the physical absence of
the judge, being construed to mean that the decision of the judge may
be promulgated even without his presence, as long as he is still a
judge of that court.7 A sentence
_______________
1 Resolution, 12 November 1970, Rollo, page 206.
2 Manifestation, 9 February 1971, Rollo, pages 209-210.
3 Lino Luna v. Rodriguez, 37 Phil. 186.
4 Garchitorena v. Crescini, 37 Phil. 675.
5 People v. CA & Domalaon, 99 Phil. 786.
6 People v. Bonifacio So, 101 Phil. 1257, unrep.

7 Ong Siu v. Paredes, L-21638, 26 July 1966, 17 SCRA 661.
57
VOL. 38, MARCH 26, 1971 57
Solis vs. Court of Appeals
has been set aside where the judge who presided in the Court of First
Instance of Nueva Ecija had been extended an ad
interim appointment to the Court of First Instance of Manila, to which
position he qualified before the judgement was filed with the Clerk of
the former court.8 Nullity likewise attached to a dismissal order when
the temporary assignment of the judge that rendered it had been
terminated before the order was issued, because a new judge for the
same court qualified.9
The main ground upon which the Court of Appeals held the
contested judgment of the Court of First Instance to be valid is that
“since the approval of Republic Act 1186, effective 20 June 1954, was
not yet publicly or generally known on 21 June 1954, Judge Leuterio
should be considered as a judge de facto of said court and the
promulgation of his appealed decision on said date is valid and legally
effective.”10 This is a misapplication of the doctrine laid down in the
very case cited by the Court of Appeals. In Lino Luna vs.
Rodriguez, supra, a judge de facto was defined as one who has the
reputation of being the officer he assumes to be and yet is not a good
officer in point of law because there exists some defect in his
appointment or his right to exercise judicial functions at the particular
time (37 Phil. on page 192); but it is “essential to the validity of the acts
of a de facto judge, that he is actually acting under some color of right”
(case cit. on page 190). In the present case, Judge Leuterio did not
actually act or perform or exercise the duties of judge when his
decision was promulgated, as he had ceased to be one, and the
decision was promulgated under another presiding judge. The other
cases cited by the Court of Appeals (Regala v. Judge of the Court of
First Instance of Bataan, 77 Phil. 684; U.S. v. Abalos, 1 Phil. 73) were
similarly misapplied, as said decisions refer to the acts of a de
facto judge, not to a case where he did not act.
_______________
8 People v. Soria, L-25175, 1 March 1968, 22 SCRA 948.
9 Siazon v. CFI of Cotabato, L-29354, 27 January 1969, 26 SCRA
664.
ADMELEC Cases
154
Decision of the Court of Appeals, Annex “B” to Petition, page
10
56, Rollo, page 100.
58
58 SUPREME COURT REPORTS ANNOTATED
Solis vs. Court of Appeals
It follows that the Court of Appeals’ decision can not stand, there being
no validly promulgated judgment of the trial court from which an appeal
could be taken. This conclusion renders it unnecessary to pass upon
the alleged error of the Court of Appeals in prematurely remanding the
records to the court of origin and later refusing to recall the same.
FOR THE FOREGOING REASONS, the decision of the
respondent Court of Appeals and the decision of the Court of First
Instance of Camarines Sur are hereby voided and set aside. The
records of the criminal cases are hereby ordered returned to the Court
of First Instance of Camarines Sur, for new adjudication by the judge
presiding therein, in accordance with the evidence already introduced,
and for further proceeding conformable to law. No costs.
Nos. L-29777-83. March 26, 1971.
GREGORIO SOLIS, petitioner, vs. THE COURT OF APPEALS and
the PEOPLE OP THE PHILIPPINES, respondents.
Judgment; When judgment considered void.—A decision is void
if promulgated after the judge who rendered it had permanently
ceased to be a judge of the court where he sat in judgment. Thus, a
judgment is a nullity if it had been promulgated after the judge had
actually vacated the office and accepted another office; or when the
term of office of the judge has ended; or when he has left the Bench;
or after the fudge had vacated his post in view of the abolition of his
position as Judge-at-Large under Republic Act 1186; or after the
cessation or termination of his incumbency as such judge.

Same; Promulgation of judgment; Section 6 of Rule 116 of old
Rules of Court construed.—Section 6 of Rule 116 of the old Rules of
Court, allowing the dispensing with the presence of the judge in the
reading of a sentence, applies only to the physical absence of the
judge, being construed to mean that the decision of the judge may be
promulgated even without his presence, as long as he is still a judge
of that court. A sentence has been set aside where the judge who
presided in the Court of First Instance of Nueva Ecija had been
extended an ad interim appointment to the Court of First Instance of
Manila, to which position he qualified before the judgment was filed
with the Clerk of the former court. Nullity likewise attached to a
dismissal order when the temporary assignment of the judge that
rendered it had been terminated before the order was issued, because
a new judge for the same court qualified.
Same; Judge; De facto judge, defined.—A judge de facto is
defined as one who has the reputation of being the officer he assumes
to be and yet is not a good officer in point of law because there exists
some defect in his appointment or his right to exercise judicial
functions at the particular time (37 Phil. on page 192); but it is
“essential to the validity of the acts of a de facto judge, that he
is actually acting under some color of right” (case cit. on page 190). In
the present case, Judge Leuterio did not actually act or perform or
exercise the duties of judge when his decision was promulgated, as
he had ceased to be one, and the decision was promulgated under
another presiding judge.
PETITION for review on certiorari of the decision and orders of the
Court of Appeals.
The facts are stated in the opinion of the Court.
54
54 SUPREME COURT REPORTS ANNOTATED
Solis vs. Court of Appeals
Mario R. Silva for petitioner.
The Solicitor General for respondents.
REYES, J.B.L., J.:
ADMELEC Cases
155
Petition of Gregorio Solis for review on certiorari of the decision and
orders rendered by respondent Court of Appeals, in its Cases CA-G.R.
Nos. 14811-R to 14817-R entitled, “People of the Philippines vs.
Gregorio Solis, et al.,” affirming his conviction by former Judge Jose
N. Leuterio of the Court of First Instance of Camarines Sur.
Petitioner Gregorio Solis and several other co-accused were
indicted, tried and found guilty of malversation of public funds in
Criminal Cases Nos. 2510-2516 of the Court of First instance of
Camarines Sur. The judgment was penned and signed on 19 June
1954 by the Honorable Jose N. Leuterio, then Judge-at-Large
assigned to Camarines Sur.
All the accused were summoned to appear for promulgation of the
judgment on 19 June 1954, but no court proceeding was had on that
day, as the President of the Philippines had declared it a special public
holiday.
On 20 June 1954, Republic Act No. 1186, which abolished all
existing positions of Judges-at-Large, took effect without Executive
approval.
On 21 June 1954, the defendants appeared before the court; this
time, the court was presided over by Honorable Perfecto R. Palacio,
judge of another sala of the court. Judge Palacio promulgated the
judgment of Judge Leuterio, against the objections of herein petitioner.
Petitioner Solis appealed the judgment to the Court of
Appeals and the cases were docketed therein as CA-G.R. Nos.
14811-R to 14817-R. In said appellate court, he raised in issue and
attacked the validity of the promulgation of the judgment of the lower
court, for having been made by another judge after the incumbency of
the judge who rendered it had ceased.
55
VOL. 38, MARCH 26, 1971 55
Solis vs. Court of Appeals
The Solicitor-General’s brief, in the Court of Appeals, agreed that the
promulgation was illegal and void. Nevertheless, on 20 November
1965, the Court of Appeals promulgated its decision, modifying
petitioner’s sentence in CA-G.R. No. 14811-R, acquitting him in CA-
G.R. No. 14812-R and CA-G.R. No. 14813-R, and affirming the lower
court’s decision in CA-G.R. Nos. 14814-R to 14817-R; but petitioner’s
new counsel were not served a copy of the appellate court’s decision.
What they received was a notification, almost three (3) years later, that
is, on 25 August 1968, from the bondsman of petitioner, informing

them that the Court of First Instance of Camarines Sur had issued an
order for petitioner Solis to appear therein for execution of judgment
in the criminal cases.
It was only on 5 September 1968 that petitioner’s counsel received
a copy of the Court of Appeals’ decision.
On 29 August 1968 petitioner filed an urgent motion with the Court
of Appeals asking it to restrain the lower court from executing the
decision, to order the recall of the records, and to cause the service of
the decision of the Court of Appeals on petitioner’s counsel. Acting
thereon, the Court of Appeals directed its Deputy Clerk of Court to
send a telegram to the lower court to suspend execution of sentence,
required its Judgment Section to immediately serve a copy of the
decision, and to explain within ten (10) days why no copy had been
served on petitioner’s counsel; but the Court of Appeals did not order
the recall of the records.
On 21 September, the Court of Appeals denied petitioner’s motion
for the recall of the records but granted him a period of twenty (20)
days to file his motion for reconsideration of the decision. Thereupon,
notwithstanding the absence of the records in the Court of Appeals,
petitioner submitted his motion for reconsideration. It was denied on
28 October 1968.
Hence, on 11 November 1968, appellant Solis interposed in this
Court the present petition for review, squarely pre-
56
56 SUPREME COURT REPORTS ANNOTATED
Solis vs. Court of Appeals
senting the issue of the invalidity of the decision of the Court of First
Instance and of the legality of the actuations of the Court of Appeals
in remanding the records even before service of copy of its decision
on petitioner’s counsel and in arbitrarily refusing to have the records
recalled while the case was still pending before it.
The present case of certiorari was considered submitted for
decision without respondents’ brief,1 as the Office of the Solicitor
General manifested that “the only consistent stand that the People can
adopt is to agree with petitioner’s posture.”2
Upon the facts heretofore stated, the judgment of trial judge Jose
N. Leuterio was promulgated (on 21 June 1954) one (1) day after his
position as Judge-at-Large was abolished (on 20 June 1954) by
Republic Act 1186. The judgment is, therefore, void, for it is now firmly
established in our jurisprudence that a decision is void if promulgated
ADMELEC Cases
156
after the judge who rendered it had permanently ceased to be a judge
of the court where he sat in judgment. Thus, a judgment is a nullity if
it had been promulgated after the judge had actually vacated the office
and accepted another office;3 or when the term of office of the judge
has ended;4 or when he has left the Bench;5 or after the judge had
vacated his post in view of the abolition of his position as Judge-at-
Large under Republic Act 1186;6 or after the cessation or termination
of his incumbency as such judge. Section 6 of Rule 116 of the old
Rules of Court, allowing the dispensing with the presence of the judge
in the reading of a sentence, applies only to the physical absence of
the judge, being construed to mean that the decision of the judge may
be promulgated even without his presence, as long as he is still a
judge of that court.7 A sentence
_______________
1 Resolution, 12 November 1970, Rollo, page 206.
2 Manifestation, 9 February 1971, Rollo, pages 209-210.
3 Lino Luna v. Rodriguez, 37 Phil. 186.
4 Garchitorena v. Crescini, 37 Phil. 675.
5 People v. CA & Domalaon, 99 Phil. 786.
6 People v. Bonifacio So, 101 Phil. 1257, unrep.
7 Ong Siu v. Paredes, L-21638, 26 July 1966, 17 SCRA 661.
57
VOL. 38, MARCH 26, 1971 57
Solis vs. Court of Appeals
has been set aside where the judge who presided in the Court of First
Instance of Nueva Ecija had been extended an ad
interim appointment to the Court of First Instance of Manila, to which
position he qualified before the judgement was filed with the Clerk of
the former court.8 Nullity likewise attached to a dismissal order when
the temporary assignment of the judge that rendered it had been
terminated before the order was issued, because a new judge for the
same court qualified.9
The main ground upon which the Court of Appeals held the
contested judgment of the Court of First Instance to be valid is that
“since the approval of Republic Act 1186, effective 20 June 1954, was
not yet publicly or generally known on 21 June 1954, Judge Leuterio
should be considered as a judge de facto of said court and the
promulgation of his appealed decision on said date is valid and legally

effective.”10 This is a misapplication of the doctrine laid down in the
very case cited by the Court of Appeals. In Lino Luna vs.
Rodriguez, supra, a judge de facto was defined as one who has the
reputation of being the officer he assumes to be and yet is not a good
officer in point of law because there exists some defect in his
appointment or his right to exercise judicial functions at the particular
time (37 Phil. on page 192); but it is “essential to the validity of the acts
of a de facto judge, that he is actually acting under some color of right”
(case cit. on page 190). In the present case, Judge Leuterio did not
actually act or perform or exercise the duties of judge when his
decision was promulgated, as he had ceased to be one, and the
decision was promulgated under another presiding judge. The other
cases cited by the Court of Appeals (Regala v. Judge of the Court of
First Instance of Bataan, 77 Phil. 684; U.S. v. Abalos, 1 Phil. 73) were
similarly misapplied, as said decisions refer to the acts of a de
facto judge, not to a case where he did not act.
_______________
8 People v. Soria, L-25175, 1 March 1968, 22 SCRA 948.
9 Siazon v. CFI of Cotabato, L-29354, 27 January 1969, 26 SCRA
664.
10 Decision of the Court of Appeals, Annex “B” to Petition, page
56, Rollo, page 100.
58
58 SUPREME COURT REPORTS ANNOTATED
Solis vs. Court of Appeals
It follows that the Court of Appeals’ decision can not stand, there being
no validly promulgated judgment of the trial court from which an appeal
could be taken. This conclusion renders it unnecessary to pass upon
the alleged error of the Court of Appeals in prematurely remanding the
records to the court of origin and later refusing to recall the same.
FOR THE FOREGOING REASONS, the decision of the
respondent Court of Appeals and the decision of the Court of First
Instance of Camarines Sur are hereby voided and set aside. The
records of the criminal cases are hereby ordered returned to the Court
of First Instance of Camarines Sur, for new adjudication by the judge
presiding therein, in accordance with the evidence already introduced,
and for further proceeding conformable to law. No costs.
ADMELEC Cases
157
No. L-23258. July 1, 1967.
ROBERTO R. MONROY, petitioner, vs. HON. COURT OF APPEALS
and FELIPE DEL ROSARIO, respondents.
________________
4 Enriquez vs. Bautista, 79 Phil. 220, 222 (1947); accord, Islas vs.
Platon. 47 Phil. 162 (1924).
621
VOL. 20, JULY 1, 1967 621
Monroy vs. Court of Appeals
Elections; Commission on Elections; Nature of
functions; Supreme Court; Jurisdiction to review rulings of
Commission.— Decisions, orders and rulings of the Commission on
Elections on administrative questions affecting elections are
reviewable only by the Supreme Court. Since the power of the
Commission are limited to matters connected with the conduct of
elections, necessarily its adjudicatory or quasi-judicial powers are
likewise limited to controversies connected with the conduct of
elections. This phrase covers all the administrative process of
preparing and operating the election machinery so that the people
could exercise their right to vote at the given time. All questions and
controversies that may arise therefrom are to be resolved exclusively
by the Commission, subject to review only by the Supreme Court.
Same; Withdrawal of certificate of candidacy.—The approval, by
the Commission on Elections, of the withdrawal of a certificate of
candidacy for a Congressional seat does not give rise to any
administrative question or controversy reviewable by the Supreme
Court.
Same; Legal effect of withdrawal of candidacy is an issue
cognizable by the courts.—The legal issue of whether a mayor, who
filed a certificate of candidacy for the position of Congressman and
who later withdrew said certificate with the approval of the
Commission on Elections, forfeited his position as mayor properly falls
within the cognizance of the courts. It did not give rise to any ruling of
the Commission on Elections reviewable by the Supreme Court.
Same; Withdrawal of certificate of candidacy does not restore
candidate to former position.—An elective provincial, municipal or city

official running for an office, other than the one which he is actually
holding, is considered resigned from his office from the moment of the
filing of his certificate of candidacy. The forfeiture is automatic and
irrevocably effective upon the filing of the certificate of candidacy for
another office. Only the 'moment and act of filing are considered.
Once the certificate is filed, the position is forever forfeited and
nothing, save a new election or appointment, can restore the ousted
official. The forfeiture is not dependent upon future contingencies,
unforeseen or unforeseeable, since the vacating is expressly made as
of the moment of the filing of the certificate of candidacy.
Same; Effect of withdrawal of certificate of candidacy.— The
withdrawal of a certif icate of candidacy does not necessarily render it
void ab initio. Once filed, the permanent legal effects produced
thereby remain even if the certificate itself be subsequently withdrawn.
Supreme Court; Court of Appeals; Factual findings.—The
factual finding of the Court of Appeals that the petitioner's certificate
of candidacy was filed with his consent is binding on the Supreme
Court.
622
622 SUPREME COURT REPORTS
ANNOTATED
Monroy vs. Court of Appeals
Public Officers; Administrative Law; De facto officer, Rightful
incumbent may recover salary received by de facto officer.— The
rightful incumbent of a public office may recover from a de facto officer
the salary received by the latter during the time of his wrongful tenure,
even though he entered into the office in good faith and under color of
title. Possession of the title to the office, not of the office itself, is
decisive. A de facto officer, not having good title, takes the salaries at
his risk and must, therefore, account to the de jure officer for whatever
amount of salary he received during the period of his wrongful
retention of public office.
Same; Application of the rule to case at bar.—Where a mayor
withdrew his certificate of candidacy for Congressman and then re-
assumed the position of mayor, thus preventing the vice-mayor from
discharging the duties of the position of mayor, the mayor should
reimburse to the vice-mayor, as the rightful occupant of the position of
mayor, the salaries which he had received. The ruling in Rodriguez vs,
Tan. 91 Phil. 724, that no such reimbursement should be made, is not
ADMELEC Cases
158
applicable to the case at bar because the Tan case involved a
proclaimed elective official who was later ousted.
Same; Rationale of de facto doctrine.—The de facto doctrine
was formulated, not for the protection of the de facto officer principally,
but rather for the protection of the public and individuals who get
involved in the official acts of persons discharging the duties of an
office without being lawful officers.
PETITION for review by certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
E. M. Fernando, E, Quisumbing-Fernando and Norberto
Quisumbing for petitioner.
Sycip, Salazar, Luna & Associates for respondents.
BENGZON, J.P., J.:
Petitioner Roberto Monroy was the incumbent Mayor of Navotas,
Rizal, when on September 15, 1961, his certificate of candidacy as
representative of the first district of Rizal in the forthcoming elections
was f iled with the Commission on Elections. Three days later, or on
September 18, 1961, petitioner filed a letter withdrawing said
certificate of candidacy. The Commission on Elections, per
resolution,1
_______________
1
The records of this case do not include a copy of this resolution.
Hence, it nowhere appears when this resolution was issued.
623
VOL. 20, JULY 1, 1967 623
Monroy vs. Court of Appeals
approved the withdrawal. But on September 21, 1961, respondent
Felipe del Rosario, then the vice-mayor of Navotas, took his oath of
office as municipal mayor on the theory that petitioner had forfeited
the said office upon his f iling of the certificate of candidacy in question.
Upon these facts, the Court of First Instance of Rizal, sitting in
Pasig, held in the suit for injunction instituted by petitioner against
respondents that (a) the former had ceased to be mayor of Navotas,

Rizal, after his certificate of candidacy was filed on September 15,
1961; (b) respondent del Rosario became municipal mayor upon his
having assumed office as such on September 21, 1961; (c) petitioner
must reimburse, as actual damages, the salaries to which respondent
was entitled as Mayor from September 21, 1961 up to the time he can
reassume said office; and (d) petitioner must pay respondent ?
1,000.00 as moral damages.
This judgment was, on appeal by petitioner to the Court of Appeals,
affirmed in toto except for the award of moral damages which was
eliminated. The same Court reaffirmed its stand upon petitioner's filing
a motion to reconsider. Hence, this petition for certiorari to review the
ruling of the Court of Appeals.
Petitioner first argues that both the lower court and the Court of
Appeals had done what they had no jurisdiction to do—review a
resolution of the Commission on Elections. The submission is without
merit. The Constitution empowers the Commission on Elections to
"x x x decide, save those involving the right to vote, all administrative
questions affecting elections, including the determination of the
number and location of polling places, and the appointment of election
inspectors and of other election officials. x x x"2 (Italics supplied)
And the decisions, orders and rulings of the Commission on these
administrative questions are reviewable only by the Supreme
Court.3 Since the powers of the Commission are limited to matters
connected with the "conduct of elec-
________________
2 Philippine Constitution, Art. X, sec. 2,
3 Ibid; see also: See. 5, Rev. Election Code.
624
624 SUPREME COURT REPORTS ANNOTATED
Monroy vs. Court of Appeals
tions," necessarily its adjudicatory or quasi-judicial powers are
likewise limited to controversies connected with the "conduct of
elections." This phrase covers all the administrative process of
preparing and operating the election machinery so that the people
could exercise their right to vote at the given time.4 All questions and
controversies that may arise therefrom are to be resolved exclusively
by the Commission, subject to review only by the Supreme Court.
ADMELEC Cases
159
However, in this case there appears to be no decision, order or
ruling of the Commission on any administrative question or
controversy. There was no dispute before the Commission.
Respondent never contested the filing of petitioner's certificate of
candidacy. Neither has he disputed before that body the withdrawal
thereof. And even if there was a controversy before the Commission,
the same did not and could not possibly have anything to do with the
conduct of elections. What the parties are actually controverting is
whether or not petitioner was still the municipal mayor after September
15, 1961. This purely legal dispute has absolutely no bearing or effect
on the conduct of the elections for the seat of Congressman for the
first district of Rizal. The election can go on irrespective of whether
petitioner is considered resigned from his position of municipal mayor
or not. The only interest and, for that matter, jurisdiction, of the
Commission on Elections in this regard is to know who are the running
candidates for the forthcoming elections, for that affects the conduct
of election. So when petitioner withdrew the certificate announcing his
candidacy for Congressman, as far as the Commission could be
concerned, petitioner was no longer interested in running for that seat.
The matter of his having forfeited his present position and the possible
legal effect thereon by the withdrawal of his certificate was completely
out of the picture. Hence, that purely legal question properly fell within
the cognizance of the courts.
Now the withdrawal of his certif icate of candidacy did not restore
petitioner to his former position. Sec. 27 of the Rev. Election Code
providing that—
_______________
4 See: Guevara vs. Commission on Elections, L-12596 July 31,
1968.
625
VOL. 20, JULY 1, 1967 625
Monroy vs, Court of Appeals
"Any elective provincial, municipal or city official running for an office,
other than the one which he is actually holding, shall be considered
resigned from his office from the moment of the filing of his certificate
of candidacy,"

makes the forfeiture automatic and permanently effective upon the
filing of the certificate of candidacy for another office. Only
the moment and act of filing are considered. Once the certificate is
filed, the seat is forfeited forever and nothing save a new election or
appointment can restore the ousted official. Thus, as We had
occasion to remark, through Justice J.B.L. Reyes, in Castro v.
Gatuslao, 98 Phil, 94, 196:
"x x x The wording of the law plainly indicates that only the date of
filing of the certificate of candidacy should be taken into account. The
law does not make the forfeiture dependent upon future
contingencies, unforeseen and unforeseeable, since the vacating is
expressly made as of the moment of the filing of the certificate of
candidacy. x x x" (Italics supplied)
Petitioner's contention that the certificate of candidacy was filed
without his knowledge and consent and, hence, the Commission's
approval of its withdrawal invalidated such certificate for all legal
purposes, is untenable. It nowhere appears that the Commission's
resolution expressly invalidated the certif icate. The withdrawal of a
certif icate of candidacy does not necessarily render the certificate
void ab initio. Once filed, the permanent legal effects produced
thereby remain even if the certificate itself be subsequently withdrawn.
Moreover, both the trial court and the Court of Appeals expressly
found as a fact that the certificate in question was filed with petitioner's
knowledge and consent. And since the nature of the remedy taken by
petitioner before Us would allow a discussion of purely legal questions
only, such fact is deemed conceded.5
Petitioner would next maintain that respondent Court of Appeals
likewise erred in affirming a lower court judgment requiring petitioner
to pay respondent Del Rosario by way of actual damages the salaries
he was allegedly entitled to receive from September 21, 1961, to the
date of petitioner's vacation of his office as mayor. In sup-
_______________
5 See: Ramos v. Pepsi-Cola, L-22533, Feb. 9, 1967.
626
626 SUPREME COURT REPORTS ANNOTATED
Monroy vs. Court of Appeals
ADMELEC Cases
160
port of this he relies solely upon Rodriguez v. Tan, 91 Phil. 724,
holding that a senator who had been proclaimed and had assumed
office but was later on ousted in an election protest, is a de
facto officer during the time he held the office of senator, and can
retain the emoluments received even as against the successful
protestant. Petitioner's factual premise is the appellate court's finding
that he was a de facto officer when he continued occupying the office
of mayor after September 15, 1961.
However, We agree with the Court of Appeals that the Rodriguez
case is not applicable here for absence of factual and legal similarities.
The Rodriguez case involved a senator who had been proclaimed as
duly elected, assumed the office and was subsequently ousted as a
result of an election contest. These peculiar facts called for the
application of an established precedent in this jurisdiction that the
candidate duly proclaimed must assume office notwithstanding a
protest filed against him and can retain the compensation paid during
his incumbency. But the case at bar does not involve
a proclaimed elective official who will be ousted because of an
election contest. The present case for injunction and quo
warranto involves the forfeiture of the office of municipal mayor by the
incumbent occupant thereof and the claim to that office by the vice-
mayor because of the operation of Sec. 27 of the Rev. Election Code.
The established precedent invoked in the Rodriguez case can not
therefore be applied in this case.
It is the general rule then, i.e., "that the rightful incumbent of a
public office may recover from an officer de facto the salary received
by the latter during the time of his wrongful tenure, even though he
entered into the office in good faith and under color of title" 6 that
applies in the present case. The resulting hardship occasioned by the
operation of this rule to the de facto officer who did actual work is
recognized; but it is far more cogently acknowledged that the de
facto doctrine has been formulated, not for the protection of the de
facto officer principally, but rather for the protection of the public and
individuals who get involved in the official acts of persons discharging
_______________
6 Walker v. Hughes, 36 A 2d 47, 151 ALR 946, 949-950.
627
VOL. 20, JULY 10, 1967 627

Insurance Company of North America vs. Republic
the duties of an office without being lawful officers. 7 The question of
compensation involves different principles and concepts however.
Here, it is possession of title, not of the office, that is decisive. A de
facto officer, not having good title, takes the salaries at his risk and
must therefore account to the de jure officer for whatever amount of
salary he received during the period of his wrongful retention of the
public office.8
Wherefore, finding no error in the judgment appealed from, the
same is, as :it is hereby, affirmed in toto. Costs against petitioner. So
ordered
G.R. No. 90762. May 20, 1991.*
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON,
petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E.
PETILLA in his capacity as Chief Executive of the Province of Leyte
and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial
Treasurer FLORENCIO LUNA, respondents.
Administrative Law; Public Officers; Local
Government; Appointments; In the absence of any contrary provision
in the Local Government Code, the provisions of Commonwealth Act
No. 588 and the Revised Administrative Code of 1987, empowering
the President to make temporary appointments in case of any vacancy
in appointive positions, may, in the best interest of public service, also
be applied in case of vacancy in the position of Vice-Governor, as in
the case at bar.—Under the circumstances of this case and
considering the silence of the Local Government Code, the Court rules
that, in order to obviate the dilemma resulting from an interregnum
created by the vacancy, the President, acting through her alter ego,
the Secretary of Local Government, may remedy the situation. We
declare valid the temporary appointment extended to the petitioner to
act as the Vice-Governor. The exigencies of public service demanded
nothing less than the immediate appointment of an acting Vice-
Governor. The records show that it was primarily for this contingency
ADMELEC Cases
161
that Undersecretary Jacinto Rubillar corrected and reconsidered his
previous position and acknowledged the need for an acting Vice-
Governor. It may be noted that under Commonwealth Act No. 588 and
the Revised Administrative Code of 1987, the President is empowered
to make temporary appointments in certain public offices, in case of
any vacancy that may occur. Albeit both laws deal only with the filling
of vacancies in appointive positions. However, in the absence of any
contrary provision in the Local Government Code and in the best
interest of public service, we see no cogent reason why the procedure
thus outlined by the two laws may not be similarly applied in the
present case. The respondents contend that the provincial board is
the correct appointing power. This argument has no merit. As between
the President who has supervision over local governments as
provided by law and the members of the board who are junior to the
vice-governor, we have no problem ruling in favor of the President,
until the law provides otherwise.
_______________
*EN BANC.
252
252 SUPREME COURT REPORTS
ANNOTATED
Menzon vs. Petilla
Same; Same; Same; Same; The mode of succession provided
for permanent vacancies, under Sec. 49 in connection with Sec. 52 of
the Local Government Code, in the Office of Vice-Governor, may
likewise be observed in case of a temporary vacancy occurring in the
same office.—The appointment of the petitioner, moreover, is in full
accord with the intent behind the Local Government Code. There is no
question that Section 49 in connection with Section 52 of the Local
Government Code shows clearly the intent to provide for continuity in
the performance of the duties of the Vice-Governor. x x x By virtue of
the surroundings circumstance of this case, the mode of succession
provided for permanent vacancies may likewise be observed in case
of a temporary vacancy occurring in the same office. In this case, there
was a need to fill the vacancy. The petitioner is himself the member of
the Sangguniang Panlalawigan who obtained the highest number of

votes. The Department Secretary acted correctly in extending the
temporary appointment.
Same; Same; Same; Same; Even granting that the President,
acting through the Secretary of Local Government, has no power to
appoint petitioner, at the very least, petitioner is a de facto officer
entitled to compensation.—And finally, even granting that the
President, acting through the Secretary of Local Government,
possesses no power to appoint the petitioner, at the very least, the
petitioner is a de facto officer entitled to compensation. There is no
denying that the petitioner assumed the Office of the Vice-Governor
under color of a known appointment. As revealed by the records, the
petitioner was appointed by no less than the alter ego of the President,
the Secretary of Local Government, after which he took his oath of
office before Senator Alberto Romulo in the Office of Department of
Local Government Regional Director Res Salvatierra. Concededly, the
appointment has the color of validity. The respondents themselves
acknowledged the validity of the petitioner’s appointment and dealt
with him as such. It was only when the controversial Resolution No.
505 was passed by the same persons who recognized him as the
acting Vice-Governor that the validity of the appointment of the
petitioner was made an issue and the recognition withdrawn. The
petitioner, for a long period of time, exercised the duties attached to
the Office of the Vice-Governor. He was acclaimed as such by the
people of Leyte. Upon the principle of public policy on which the de
facto doctrine is based and basic considerations of justice, it would be
highly iniquitous to now deny him the salary due him for the services
he actually rendered as the acting Vice-Governor of the province of
Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])
253
VOL. 197, MAY 20, 1991 253
Menzon vs. Petilla
MOTION for reconsideration of the resolution of the Court.
The facts are stated in the resolution of the Court.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
ADMELEC Cases
162
RESOLUTION
GUTIERREZ, JR., J.:
This is a motion for reconsideration of the resolution of the Court dated
August 28, 1990 which initially denied the petition for certiorari and
mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D.
Menzon. In the August 28 resolution, the Court stated that Mr. Menzon
cannot successfully assert the right to be recognized as Acting Vice-
Governor and, therefore, his designation was invalid. In this motion,
the primary issue is the right to emoluments while actually discharging
the duties of the office.
The facts of the case are as follows: On February 16, 1988, by
virtue of the fact that no Governor had been proclaimed in the province
of Leyte, the Secretary of Local Government Luis Santos designated
the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior
member of the Sangguniang Panlalawigan was also designated by
Secretary Luis Santos to act as the Vice-Governor for the province of
Leyte.
The petitioner took his oath of office before Senator Alberto
Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero
inquired from the Undersecretary of the Department of Local
Government, Jacinto T. Rubillar, Jr., as to the legality of the
appointment of the petitioner to act as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T.
Rubillar, Jr. stated that since B.P. 337 has no provision relating to
succession in the Office of the Vice-Governor in case of a temporary
vacancy, the appointment of the petitioner as the temporary Vice-
Governor is not necessary since the Vice-Governor who is temporarily
performing the functions of the
254
254 SUPREME COURT REPORTS ANNOTATED
Menzon vs. Petilla
Governor, could concurrently assume the functions of both offices.
As a result of the foregoing communications between Tente U.
Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan,
in a special session held on July 7, 1989, issued Resolution No. 505

where it held invalid the appointment of the petitioner as acting Vice-
Governor of Leyte. The pertinent portion of the resolution reads:
“WHEREAS, the circumstances obtaining at present in the Office of
the Vice-Governor is that there is no permanent (sic) nor a vacancy in
said office. The Honorable Leopoldo E. Petilla assumed the Office of
the Vice-Governor after he took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not only to
take cognizance of the aforesaid official communication of the
Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr.,
duly seconded by the Honorable Rogelio L. Granados and the
Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable
Aurelio D. Menzon as Acting Vice-Governor of Leyte.” (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional
Counsel, Atty. Zosimo Alegre, sought clarification from
Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989
opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and
explained his opinion. The pertinent portion of the letter reads:
“This has reference to your letter dated July 10, 1989, requesting for
clarification of our letter to Provincial Administrator Tente U. Quintero
dated June 22, 1989, which states in substance, that “there is no
succession provided for in case of temporary vacancy in the office of
the vice-governor and that the designation of a temporary vice-
governor is not necessary.
We hold the view that the designation extended by the Secretary
of Local Government in favor of one of the Sangguniang Panlalawigan
Members of Leyte to temporarily discharge the powers and duties of
the vice-governor during the pendency of the electoral controversy in
the Office of the Governor, does not contradict the stand we have on
the matter. The fact that the Sangguniang Panlalawigan member was
255
VOL. 197, MAY 20, 1991 255
Menzon vs. Petilla
temporarily designated to perform the functions of the vice-governor
could not be considered that the Sangguniang member succeeds to
the office of the latter, for it is basic that designation is merely an
imposition of additional duties to be performed by the designee in
addition to the official functions attached to his office. Furthermore, the
ADMELEC Cases
163
necessity of designating an official to temporarily perform the functions
of a particular public office, would depend on the discretion of the
appointing authority and the prevailing circumstances in a given area
and by taking into consideration the best interest of public service.
On the basis of the foregoing and considering that the law is silent
in case of temporary vacancy, in the Office of the Vice-Governor, it is
our view that the peculiar situation in the Province of Leyte, where the
electoral controversy in the Office of the Governor has not yet been
settled, calls for the designation of the Sangguniang Member to act as
vice-governor temporarily.” (Rollo, p. 31)
In view of the clarificatory letter of Undersecretary Rubillar, the
Regional Director of the Department of Local Government, Region 8,
Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed
to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the
latter that Resolution No. 505 of the Sangguniang Panlalawigan be
modified accordingly. The letter states:
“In view thereof, please correct previous actions made by your office
and those of the Sangguniang Panlalawigan which may have tended
to discredit the validity of Atty. Aurelio Menzon’s designation as acting
vice-governor, including the payment of his salary as Acting Vice-
Governor, if he was deprived of such.” (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to
Acting-Governor Petilla, reiterating his earlier request.
Despite these several letters of request, the Acting Governor and
the Sangguniang Panlalawigan, refused to correct Resolution No. 505
and correspondingly to pay the petitioner the emoluments attached to
the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court
a petition for certiorari and mandamus. The petition sought the
nullification of Resolution No. 505 and for the payment of his salary for
his services as the acting Vice-Governor of Leyte.
256
256 SUPREME COURT REPORTS ANNOTATED
Menzon vs. Petilla
In the meantime, however, the issue on the governorship of Leyte was
settled and Adelina Larrazabal was proclaimed the Governor of the
province of Leyte.
During the pendency of the petition, more particularly on May 16,
1990, the provincial treasurer of Leyte, Florencio Luna allowed the
payment to the petitioner of his salary as acting Vice-Governor of

Leyte in the amount of P17,710.00, for the actual services rendered
by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by
Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of
the above resolution requested Governor Larrazabal to direct the
petitioner to pay back to the province of Leyte all the emoluments and
compensation which he received while acting as the Vice-Governor of
Leyte.
On September 21, 1990, the petitioner filed a motion for
reconsideration of our resolution. The motion prayed that this Court
uphold the petitioner’s right to receive the salary and emoluments
attached to the office of the Vice-Governor while he was acting as
such.
The petitioner interposes the following reason for the allowance of
the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS
FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICE-
GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE
JUSTICE AND EQUITY.
The controversy basically revolves around two issues: 1) Whether or
not there was a vacancy?; and 2) Whether or not the Secretary of
Local Government has the authority to make temporary
appointments?
The respondents argue that there exists no vacancy in the Office
of the Vice-Governor which requires the appointment of the petitioner.
They further allege that if indeed there was a need to appoint an acting
Vice-Governor, the power to appoint is not vested in the Secretary of
Local Government. Absent any provision in the Local Government
Code on the mode of succession in case of a temporary vacancy in
the Office of the Vice-
257
VOL. 197, MAY 20, 1991 257
Menzon vs. Petilla
Governor, they claim that this constitutes an internal problem of the
Sangguniang Panlalawigan and was thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no
vacancy whenever the office is occupied by a legally qualified
incumbent. A sensu contrario, there is a vacancy when there is no
ADMELEC Cases
164
person lawfully authorized to assume and exercise at present the
duties of the office. (see Stocking v. State, 7 Ind. 326, cited in
Mechem. A Treatise on the Law on Public Offices and Officers, at p.
61)
Applying the definition of vacancy to this case, it can be readily
seen that the office of the Vice-Governor was left vacant when the duly
elected Vice-Governor Leopoldo Petilla was appointed Acting
Governor. In the eyes of the law, the office to which he was elected
was left barren of a legally qualified person to exercise the duties of
the office of the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla,
notwithstanding his succession to the Office of the Governor,
continued to simultaneously exercise the duties of the Vice-Governor.
The nature of the duties of a Provincial Governor call for a full-time
occupant to discharge them. More so when the vacancy is for an
extended period. Precisely, it was Petilla’s automatic assumption to
the acting Governorship that resulted in the vacancy in the office of
the Vice-Governor. The fact that the Secretary of Local Government
was prompted to appoint the petitioner shows the need to fill up the
position during the period it was vacant. The Department Secretary
had the discretion to ascertain whether or not the Provincial Governor
should devote all his time to that particular office. Moreover, it is
doubtful if the Provincial Board, unilaterally acting, may revoke an
appointment made by a higher authority.
Disposing the issue of vacancy, we come to the second issue of
whether or not the Secretary of Local Government had the authority
to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession
in the event of a temporary vacancy in the Office of the Vice-Governor.
However, the silence of the law must not be understood to convey that
a remedy in law is wanting.
258
258 SUPREME COURT REPORTS ANNOTATED
Menzon vs. Petilla
The circumstances of the case reveal that there is indeed a necessity
for the appointment of an acting Vice-Governor. For about two years
after the governatorial elections, there had been no de jure permanent
Governor for the province of Leyte, Governor Adelina Larrazabal, at

that time, had not yet been proclaimed due to a pending election case
before the Commission on Elections.
The two-year interregnum which would result from the
respondents’ view of the law is disfavored as it would cause
disruptions and delays in the delivery of basic services to the people
and in the proper management of the affairs of the local government
of Leyte. Definitely, it is incomprehensible that to leave the situation
without affording any remedy was ever intended by the Local
Government Code.
Under the circumstances of this case and considering the silence
of the Local Government Code, the Court rules that, in order to obviate
the dilemma resulting from an interregnum created by the vacancy,
the President, acting through her alter ego, the Secretary of Local
Government, may remedy the situation. We declare valid the
temporary appointment extended to the petitioner to act as the Vice-
Governor. The exigencies of public service demanded nothing less
than the immediate appointment of an acting Vice-Governor.
The records show that it was primarily for this contingency that
Undersecretary Jacinto Rubillar corrected and reconsidered his
previous position and acknowledged the need for an acting Vice-
Governor.
It may be noted that under Commonwealth Act No. 588 and the
Revised Administrative Code of 1987, the President is empowered to
make temporary appointments in certain public offices, in case of any
vacancy that may occur. Albeit both laws deal only with the filling of
vacancies in appointive positions. However, in the absence of any
contrary provision in the Local Government Code and in the best
interest of public service, we see no cogent reason why the procedure
thus outlined by the two laws may not be similarly applied in the
present case. The respondents contend that the provincial board is
the correct appointing power. This argument has no merit. As between
the President who has supervision over local governments as
provided by law and the members of the board who are junior to the
259
VOL. 197, MAY 20, 1991 259
Menzon vs. Petilla
vice-governor, we have no problem ruling in favor of the President,
until the law provides otherwise.
ADMELEC Cases
165
A vacancy creates an anomalous situation and finds no
approbation under the law for it deprives the constituents of their right
of representation and governance in their own local government.
In a republican form of government, the majority rules through their
chosen few, and if one of them is incapacitated or absent, etc., the
management of governmental affairs to that extent, may be
hampered. Necessarily, there will be a consequent delay in the
delivery of basic services to the people of Leyte if the Governor or the
Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or
prejudice the province of Leyte, is for higher officials to decide or, in
proper cases, for the judiciary to adjudicate. As shown in this case
where for about two years there was only an acting Governor steering
the leadership of the province of Leyte, the urgency of filling the
vacancy in the Office of the Vice-Governor to free the hands of the
acting Governor to handle provincial problems and to serve as the
buffer in case something might happen to the acting Governor
becomes unquestionable. We do not have to dwell ourselves into the
fact that nothing happened to acting Governor Petilla during the two-
year period. The contingency of having simultaneous vacancies in
both offices cannot just be set aside. It was best for Leyte to have a
full- time Governor and an acting Vice-Governor. Service to the public
is the primary concern of those in the government. It is a continuous
duty unbridled by any political considerations.
The appointment of the petitioner, moreover, is in full accord with
the intent behind the Local Government Code. There is no question
that Section 49 in connection with Section 52 of the Local Government
Code shows clearly the intent to provide for continuity in the
performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession
in case of a permanent vacancy, viz: Section 49:
“In case a permanent vacancy arises when a Vice-Governor assumes
the Office of the Governor, x x x refuses to assume office, fails to
260
260 SUPREME COURT REPORTS ANNOTATED
Menzon vs. Petilla
qualify, dies, is removed from office, voluntary resigns or is otherwise
permanently incapacitated to discharge the functions of his office, the
sangguniang panlalawigan x x x member who obtained the highest
 166

number of votes in the election immediately preceding, x x x shall which the de facto doctrine is based and basic considerations of
assume the office for the unexpired term of the Vice-Governor . . . . ” justice, it would be highly iniquitous to now deny him the salary due
By virtue of the surroundings circumstance of this case, the mode of him for the services he actually rendered as the acting Vice-Governor
succession provided for permanent vacancies may likewise be of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])
observed in case of a temporary vacancy in the same office. In this WHEREFORE, the COURT hereby GRANTS the motion for
case, there was a need to fill the vacancy. The petitioner is himself the reconsideration. The additional compensation which the petitioner has
member of the Sangguniang Panlalawigan who obtained the highest received, in the amount exceeding the salary authorized by law for the
number of votes. The Department Secretary acted correctly in position of Senior Board Member, shall be considered as payment for
extending the temporary appointment. the actual services rendered as acting Vice-Governor and may be
In view of the foregoing, the petitioner’s right to be paid the salary retained by him.
attached to the Office of the Vice Governor is indubitable. The SO ORDERED.
compensation, however, to be remunerated to the petitioner, following
the example in Commonwealth Act No. 588 and the Revised
Administrative Code, and pursuant to the proscription against double
compensation must only be such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law for the
Office of the Vice-Governor.
And finally, even granting that the President, acting through the
Secretary of Local Government, possesses no power to appoint the
petitioner, at the very least, the petitioner is a de facto officer entitled
to compensation.
There is no denying that the petitioner assumed the Office of the
Vice-Governor under color of a known appointment. As revealed by
the records, the petitioner was appointed by no less than the alter ego G.R. No. 191672. November 25, 2014.*
of the President, the Secretary of Local Government, after which he
took his oath of office before Senator Alberto Romulo in the Office of DENNIS A. B. FUNA, petitioner, vs. THE CHAIRMAN, CIVIL
Department of Local Government Regional Director Res Salvatierra. SERVICE COMMISSION, FRANCISCO T. DUQUE III, and
Concededly, the appointment has the color of validity. The EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF
respondents themselves acknowledged the validity of the petitioner’s THE PRESIDENT, respondents.
appointment and dealt with him as such. It was only when the
controversial Resolution No. 505 was passed by the same persons Constitutional Law; Judicial Review; Limitations of the Power of
who recognized him as the acting Vice-Governor that the validity of Judicial Review.—Like almost all powers conferred by the
the appointment of the petitioner was made Constitution, the power of judicial review is subject to limitations, to
261 wit: (1) there must be an actual case or controversy calling for the
VOL. 197, MAY 20, 1991 261 exercise of judicial power; (2) the person challenging the act must
have the standing to question the validity of the subject act or
Menzon vs. Petilla
issuance; otherwise stated, he must have a personal and substantial
an issue and the recognition withdrawn.
interest in the case such that he has sustained, or will sustain, direct
The petitioner, for a long period of time, exercised the duties
injury as a result of its enforcement; (3) the question of constitutionality
attached to the Office of the Vice-Governor. He was acclaimed as
such by the people of Leyte. Upon the principle of public policy on

ADMELEC Cases

_______________
* EN BANC.
167
VOL. 742, NOVEMBER 25, 2014 167
Funa vs. Duque III
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
Same; Same; The Supreme Court (SC) has exercised its power
of judicial review in cases otherwise rendered moot and academic by
supervening events on the basis of certain recognized exceptions.—
This Court has exercised its power of judicial review in cases
otherwise rendered moot and academic by supervening events on the
basis of certain recognized exceptions, namely: (1) there is a grave
violation of the Constitution; (2) the case involves a situation of
exceptional character and is of paramount public interest; (3) the
constitutional issue raised requires the formulation of controlling
principles to guide the Bench, the Bar and the public; and (4) the case
is capable of repetition yet evading review. The situation now
obtaining definitely falls under the requirements for the review of a
moot and academic case. For the guidance of and as a restraint upon
the future, the Court will not abstain from exercising its power of
judicial review, the cessation of the controversy notwithstanding. We
proceed to resolve the substantive issue concerning the
constitutionality of Duque’s ex officio designation as member of the
Board of Directors or Trustees of the GSIS, PHILHEALTH, ECC and
HDMF.
Same; Constitutional Commissions; To safeguard the
independence of these Commissions, the 1987 Constitution, among
others, imposes under Section 2, Article IX-A of the Constitution
certain inhibitions and disqualifications upon the Chairmen and
members to strengthen their integrity.—Section 1, Article IX-A of the
1987 Constitution expressly describes all the Constitutional
Commissions as “independent.” Although their respective functions
are essentially executive in nature, they are not under the control of
the President of the Philippines in the discharge of such functions.
Each of the Constitutional Commissions conducts its own proceedings
under the applicable laws and its own rules and in the exercise of its
own discretion. Its decisions, orders and rulings are subject only to
ADMELEC Cases
167
review on certiorari by the Court as provided by Section 7, Article IX-
A of the 1987 Constitution. To safeguard the independence of these
Commissions, the 1987 Constitution, among others, imposes under
Section 2, Article IX-A of the Constitution certain inhibitions and
disqualifications upon the Chairmen and members to strengthen their
integrity, to wit: (a) Holding any other office or employment during their
tenure; (b) Engaging in the practice of any profession;
168
168 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
(c) Engaging in the active management or control of any
business which in any way may be affected by the functions of his
office; and (d) Being financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies or instrumentalities,
including government-owned or -controlled corporations or their
subsidiaries.
Administrative Law; Ex Officio; Words and Phrases; The term ex
officio means “from office; by virtue of office.” It refers to an “authority
derived from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official position.”—
As to the meaning of ex officio, the Court has decreed in Civil Liberties
Union v. Executive Secretary, 194 SCRA 317 (1991), that — x x x x
The term ex officio means “from office; by virtue of office.” It refers to
an “authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the
official position.” Ex officio likewise denotes an “act done in an official
character, or as a consequence of office, and without any other
appointment or authority other than that conferred by the office.” An ex
officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment.
x x x x x x x The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his
principal office.
Constitutional Law; Civil Service Commission; Section 3, Article
IX-B of the 1987 Constitution describes the Civil Service Commission

(CSC) as the central personnel agency of the government and is
principally mandated to establish a career service and adopt
measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service; to strengthen the
merit and rewards system; to integrate all human resources
development programs for all levels and ranks; and to institutionalize
a management climate conducive to public accountability.—Section 3,
Article IX-B of the 1987 Constitution describes the CSC as the central
personnel agency of the government and is principally mandated to
establish a career service and adopt measures to promote morale,
efficiency, integrity, responsiveness, progressiveness, and courtesy in
the civil
169
VOL. 742, NOVEMBER 25, 2014 169
Funa vs. Duque III
service; to strengthen the merit and rewards system; to integrate
all human resources development programs for all levels and ranks;
and to institutionalize a management climate conducive to public
accountability.
Same; Same; The Supreme Court (SC) also notes that Duque’s
designation as member of the governing Boards of the Government
Service Insurance System (GSIS), Philippine Health Insurance
Corporation (PHILHEALTH), Employees’ Compensation Commission
(ECC) and Home Development Mutual Fund (HDMF) entitles him to
receive per diem, a form of additional compensation that is disallowed
by the concept of an ex officio position by virtue of its clear
contravention of the proscription set by Section 2, Article IX-A of the
1987 Constitution.—When the CSC Chairman sits as a member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he
may exercise these powers and functions, which are not anymore
derived from his position as CSC Chairman, such as imposing interest
on unpaid or unremitted contributions, issuing guidelines for the
accreditation of health care providers, or approving restructuring
proposals in the payment of unpaid loan amortizations. The Court also
notes that Duque’s designation as member of the governing Boards
of the GSIS, PHILHEALTH, ECC and HDMF entitles him to
receive per diem, a form of additional compensation that is disallowed
by the concept of an ex officio position by virtue of its clear
contravention of the proscription set by Section 2, Article IX-A of the
ADMELEC Cases
168
1987 Constitution. This situation goes against the principle behind
an ex officio position, and must, therefore, be held unconstitutional.
Same; Same; Apart from violating the prohibition against holding
multiple offices, Duque’s designation as member of the governing
Boards of the Government Service Insurance System
(GSIS), Philippine Health Insurance Corporation (PHILHEALTH),
Employees’ Compensation Commission (ECC) and Home
Development Mutual Fund (HDMF) impairs the independence of the
Civil Service Commission (CSC).—Apart from violating the prohibition
against holding multiple offices, Duque’s designation as member of
the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF
impairs the independence of the CSC. Under Section 17, Article VII of
the Constitution, the President exercises control over all government
offices in the Executive Branch. An office that is legally not under the
control of the President is not part of the Executive Branch.
170
170 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
Same; Same; The Civil Service Commission (CSC) Chairman
cannot be a member of a government entity that is under the control
of the President without impairing the independence vested in the
CSC by the 1987 Constitution.—As provided in their respective
charters, PHILHEALTH and ECC have the status of a government
corporation and are deemed attached to the Department of Health and
the Department of Labor, respectively. On the other hand, the GSIS
and HDMF fall under the Office of the President. The corporate
powers of the GSIS, PHILHEALTH, ECC and HDMF are exercised
through their governing Boards, members of which are all appointed
by the President of the Philippines. Undoubtedly, the GSIS,
PHILHEALTH, ECC and HDMF and the members of their respective
governing Boards are under the control of the President. As such, the
CSC Chairman cannot be a member of a government entity that is
under the control of the President without impairing the independence
vested in the CSC by the 1987 Constitution.
Same; Same; De Jure Officers; In view of the application of the
prohibition under Section 2, Article IX-A of the 1987 Constitution,
Duque did not validly hold office as Director or Trustee of the
Government Service Insurance System (GSIS), Philippine Health
Insurance Corporation (PHILHEALTH), Employees’ Compensation

Commission (ECC) and Home Development Mutual Fund (HDMF)
concurrently with his position of Civil Service Commission (CSC)
Chairman. Accordingly, he was not to be considered as a de jure
officer while he served his term as Director or Trustee of these
government-owned and -controlled corporations (GOCCs).—In view
of the application of the prohibition under Section 2, Article IX-A of the
1987 Constitution, Duque did not validly hold office as Director or
Trustee of the GSIS, PHILHEALTH, ECC and HDMF concurrently with
his position of CSC Chairman. Accordingly, he was not to be
considered as a de jure officer while he served his term as Director or
Trustee of these GOCCs. A de jure officer is one who is deemed, in
all respects, legally appointed and qualified and whose term of office
has not expired.
Administrative Law; De Facto Officers; Words and Phrases; A de
facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face.—A de facto officer is one who
derives his appointment from one having colorable authority to
171
VOL. 742, NOVEMBER 25, 2014 171
Funa vs. Duque III
appoint, if the office is an appointive office, and whose
appointment is valid on its face. He may also be one who is in
possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent is not a mere
volunteer. Consequently, the acts of the de facto officer are just as
valid for all purposes as those of a de jure officer, insofar as the public
or third persons who are interested therein are concerned.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and
Prohibition.
The facts are stated in the opinion of the Court.
Melanio Elvis M. Balayan for petitioner.
The Solicitor General for respondents.
BERSAMIN, J.:
ADMELEC Cases
169
The independence of the Civil Service Commission (CSC) is
explicitly mandated under Section 1,1 Article IX-A of the 1987
Constitution. Additionally, Section 2, 2 Article IX-A of the 1987
Constitution prohibits its Members, during their tenure, from holding
any other office or employment. These constitutional provisions 3 are
central to this special civil action for certiorari
_______________
1 Section 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit.
2 Section 2. No member of a Constitutional Commission shall,
during his tenure, hold any other office or employment. Neither shall
he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise
or privilege granted by the Government, any of its subdivisions,
agencies, or instrumentalities, including government-owned or -
controlled corporations or their subsidiaries.
3 Rollo, p. 8.
172
172 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
and prohibition brought to assail the designation of Hon. Francisco
T. Duque III, Chairman of the CSC, as a member of the Board of
Directors or Trustees in an ex officio capacity of the (a) Government
Service Insurance System (GSIS); (b) Philippine Health Insurance
Corporation (PHILHEALTH), (c) the Employees’ Compensation
Commission (ECC), and (d) the Home Development Mutual Fund
(HDMF).
Antecedents
On January 11, 2010, then President Gloria Macapagal-Arroyo
appointed Duque as Chairman of the CSC. The Commission on
Appointments confirmed Duque’s appointment on February 3, 2010.
On February 22, 2010, President Arroyo issued Executive Order
No. 864 (EO 864), whose complete text is quoted as follows:

EXECUTIVE ORDER NO. 864
INCLUSION OF THE CHAIRMAN OF THE CIVIL SERVICE
COMMISSION IN THE BOARD OF TRUSTEES/DIRECTORS OF
THE GOVERNMENT SERVICE INSURANCE SYSTEM, PHILIPPINE
HEALTH INSURANCE CORPORATION, EMPLOYEES’
COMPENSATION COMMISSION AND THE HOME DEVELOPMENT
MUTUAL FUND
WHEREAS, Section 2(1), Article IX-B of the 1987 Philippine
Constitution provides that the civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government,
including government-owned or -controlled corporations with original
charters;
WHEREAS, Section 3, Article IX-B of the 1987 Constitution
mandates, among others, that the Civil Service Commission (CSC),
as the central personnel agency of the government, shall establish a
career service and adopt measures to promote morale, efficiency,
integrity,
173
VOL. 742, NOVEMBER 25, 2014 173
Funa vs. Duque III
responsiveness, progressiveness, and courtesy in the civil service,
and 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;
WHEREAS, Section 14, Chapter 3, Title I-A, Book V of the
Administrative Code of 1987 (Executive Order No. 292) expressly
states that the Chairman of the CSC shall be a member of the Board
of Directors or of other governing bodies of government entities whose
functions affect the career development, employment, status, rights,
privileges, and welfare of government officials and employees, such
as the Government Service Insurance System, Foreign Service
Board, Foreign Trade Service Board, National Board for Teachers,
and such other similar boards as may be created by law;
WHEREAS, Presidential Decree No. 1 dated September 24, 1972,
explicitly empowers the President of the Republic of the Philippines
to reorganize the entire Executive Branch of the National
Government, as a vital and priority measure to effect the desired
ADMELEC Cases
170
changes and reforms in the social, economic and political structure of
the country;
WHEREAS, Section 18(a), Article IV of Republic Act No. 7875 (An
Act Instituting a National Health Insurance Program For All Filipinos
and Establishing the Philippine Health Insurance Corporation For The
Purpose) or otherwise known as the “National Health Insurance Act of
1995,” Section 42(G) of Republic Act No. 8291 (An Act Amending
Presidential Decree No. 1146, as amended, Expanding and
Increasing the Coverage of Benefits of the Government Service
Insurance System, Instituting Reforms Therein and For Other
Purposes) or otherwise known as “The Government Service
Insurance System Act of 1997, Article 176, Chapter 3 of Presidential
Decree No. 626 (Employees’ Compensation and State Insurance
Fund), and Presidential Decree No. 1530 (Instituting a System of
Voluntary Contributions for Housing Purpose[s]) or otherwise known
as the “Pag-ibig Fund” reveal that while the Chairman of the CSC is
not
174
174 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
included in the list of those who could sit as a member of the Board
of Directors of the PhilHealth or of the Board of Trustees of the GSIS,
ECC and the Pag-ibig Fund, said laws did not expressly repeal Section
14, Chapter 3, Title I-A, Book V of the Administrative Code of 1987
and Presidential Decree No. 1;
WHEREAS, it is settled that repeals by implication are not favored
as laws are presumed to be passed with deliberation and full
knowledge of all laws existing on the subject;
WHEREAS, a scrutiny of the mandated functions and duties of the
Board of Trustees of the GSIS, ECC and HDMF and the Board of
Directors of the PhilHealth shows that the same are all geared towards
the advancement of the welfare of government officials and
employees, which functions fall within the province of the CSC;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,
President of the Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby order and direct:
Section 1. The Chairman of the Civil Service Commission shall
sit as an Ex Officio member of the Board of Trustees of the
Government Service Insurance System, Employees’ Compensation

Commission and the Home Development Mutual Fund and the Board
of Directors of the Philippine Health Insurance Corporation pursuant
to Section 14, Chapter 3, Title I-A, Book V of Executive Order No. 292
(Administrative Code of 1987).
Section 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 22nd day of February, in the year
of Our Lord, Two Thousand and Ten.4
Pursuant to EO 864, Duque was designated as a member of the
Board of Directors or Trustees of the following govern-
_______________
4 Id., at pp. 13-15.
175
VOL. 742, NOVEMBER 25, 2014 175
Funa vs. Duque III
ment-owned or government-controlled corporations (GOCCs):
(a) GSIS; (b) PHILHEALTH; (c) ECC; and (d) HDMF.
On April 8, 2010, petitioner Dennis A. B. Funa, in his capacity as
taxpayer, concerned citizen and lawyer, filed the instant petition
challenging the constitutionality of EO 864, as well as Section 14,
Chapter 3, Title I-A, Book V of Executive Order No. 292 (EO 292),
otherwise known as The Administrative Code of 1987, and the
designation of Duque as a member of the Board of Directors or
Trustees of the GSIS, PHIC, ECC and HDMF for being clear violations
of Section 1 and Section 2, Article IX-A of the 1987 Constitution.
The Case
The Court is confronted with the proper interpretation of Section 1
and Section 2, Article IX-A of the 1987 Constitution and Section 14,
Chapter 3, Title I-A, Book V of EO 292 to ascertain the constitutionality
of the designation of Duque, in an ex officio capacity, as Director or
Trustee of the GSIS, PHIC, ECC and HDMF.
Petitioner asserts that EO 864 and Section 14, Chapter 3, Title I-
A, Book V of EO 292 violate the independence of the CSC, which was
constitutionally created to be protected from outside influences and
political pressures due to the significance of its government
ADMELEC Cases
171
functions.5 He further asserts that such independence is violated by
the fact that the CSC is not a part of the Executive Branch of
Government while the concerned GOCCs are considered
instrumentalities of the Executive Branch of the Government.6 In this
situation, the President may exercise his power of control over the
CSC consider-
_______________
5 Id., at p. 16.
6 Id., at pp. 18-19.
176
176 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
ing that the GOCCs in which Duque sits as Board member are
attached to the Executive Department.7
Petitioner argues that Section 14, Chapter 3, Title I-A, Book V of
EO 292 unduly and unconstitutionally expands the role of the CSC,
which is primarily centered on personnel-related concerns involving
government workers, to include insurance, housing and health matters
of employees in the government service.8 He observes that the
independence of the CSC will not be compromised if these matters
are instead addressed by entering into a memorandum of agreement
or by issuing joint circulars with the concerned agencies, rather than
allowing a member of the CSC to sit as a member of the governing
Boards of these agencies.9
Petitioner notes that the charters of the GSIS, PHILHEALTH, ECC
and HDMF do not mention that the CSC Chairman sits as a member
of their governing Boards in an ex officio capacity.10 Such being the
case, the President may not amend the charters, which are enacted
by Congress, by the mere issuance of an executive order.11
Petitioner posits that EO 864 and Section 14, Chapter 3, Title I-A,
Book V of EO 292 violate the prohibition imposed upon members of
constitutional commissions from holding any other office or
employment.12 A conflict of interest may arise in the event that a Board
decision of the GSIS, PHILHEALTH, ECC and HDMF concerning
personnel-related matters is elevated to the CSC considering that
such GOCCs
_______________

7 Id., at pp. 19-22; ECC is a GOCC attached to the Department
of Labor and Employment, PHILHEALTH to the Department of Health,
and HDMF and GSIS to the Office of the President.
8 Id., at pp. 21-22.
9 Id., at p. 23.
10 Id., at pp. 23-28.
11 Id., at pp. 27-28.
12 Id., at p. 31.
177
VOL. 742, NOVEMBER 25, 2014 177
Funa vs. Duque III
have original charters, and their employees are governed by CSC
laws, rules and regulations.13
In their Comment, respondents maintain that Duque’s membership
in the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF
is constitutional. They explain that EO 864 and Section 14, Chapter 3,
Title I-A, Book V of EO 292 preserve the independence of the CSC
considering that GOCCs with original charters such as the GSIS,
PHILHEALTH, ECC and HDMF are excluded from the supervision and
control that secretaries and heads exercise over the departments to
which these GOCCs are attached.14 Ultimately, these GOCCs are
exempted from the executive control of the President.15
As to the matter of conflict of interest, respondents point out that
Duque is just one member of the CSC, or of the Boards of the GSIS,
PHILHEALTH, ECC and HDMF, such that matters resolved by these
bodies may be resolved with or without Duque’s participation.16
Respondents submit that the prohibition against holding any other
office or employment under Section 2, Article IX-A of the 1987
Constitution does not cover positions held without additional
compensation in ex officio capacities. Relying on the pronouncement
in Civil Liberties Union v. Executive Secretary,17 they assert that since
the 1987 Constitution, which provides a stricter prohibition against the
holding of multiple offices by executive officials, allows them to hold
positions in ex officio capacities, the same rule is applicable to
members of the Constitutional Commissions.18 Moreover, the
mandatory
_______________
ADMELEC Cases
172
13 Id., at pp. 35-36.
14 Id., at pp. 72-76.
15 Id., at p. 76.
16 Id., at p. 78.
17 G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA
317.
18 Rollo, p. 80.
178
178 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
tenor of Section 14, Chapter 3, Title I-A, Book V of EO 292 clearly
indicates that the CSC Chairman’s membership in the governing
bodies mentioned therein merely imposes additional duties and
functions as an incident and necessary consequence of his
appointment as CSC Chairman.19
Respondents insist that EO 864 and Section 14, Chapter 3, Title I-
A, Book V of EO 292, as well as the charters of the GSIS,
PHILHEALTH, ECC and HDMF, are consistent with each other. While
the charters of these GOCCs do not provide that CSC Chairman shall
be a member of their respective governing Boards, there is likewise
no prohibition mentioned under said charters.20 EO 864, issued in
conformity with Section 14, Chapter 3, Title I-A, Book V of EO 292,
could not have impliedly amended the charters of the GSIS,
PHILHEALTH, ECC and HDMF because the former relates to the law
on the CSC while the latter involve the creation and incorporation of
the respective GOCCs.21 As their subject matters differ from each
other, the enactment of the subsequent law is not deemed to repeal
or amend the charters of the GOCCs, being considered prior laws.22
Issue
Does the designation of Duque as member of the Board of
Directors or Trustees of the GSIS, PHILHEALTH, ECC and HDMF, in
an ex officio capacity, impair the independence of the CSC and violate
the constitutional prohibition against the holding of dual or multiple
offices for the Members of the Constitutional Commissions?
_______________
19 Id., at p. 81.

20 Id., at pp. 85-86.
21 Id., at p. 86.
22 Id., at pp. 86-87.
179
VOL. 742, NOVEMBER 25, 2014 179
Funa vs. Duque III
Our Ruling
The Court partially grants the petition. The Court upholds the
constitutionality of Section 14, Chapter 3, Title I-A, Book V of EO 292,
but declares unconstitutional EO 864 and the designation of Duque in
an ex officio capacity as a member of the Board of Directors or
Trustees of the GSIS, PHILHEALTH, ECC and HDMF.
1.
Requisites of judicial review
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have the standing to question the
validity of the subject act or issuance; otherwise stated, he must have
a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.23
Here, the Office of the Solicitor General (OSG) only disputes
the locus standi of petitioner who has filed this suit in his capacity as
taxpayer, concerned citizen and lawyer.24 In view of the earlier
dispositions by the Court in similar public law cases initiated by
petitioner, we again affirm his locus standi to bring a suit of this nature.
In Funa v. Agra,25 the Court has recently held:
_______________
23 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary
of Budget and Management, G.R. No. 164987, April 24, 2012, 670
SCRA 373, 382.
24 Rollo, pp. 68-72.
ADMELEC Cases
173
25 G.R. No. 191644, February 19, 2013, 691 SCRA 196, 207-208.
180
180 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
x x x [T]he locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer to bring a suit of this nature has
already been settled in his favor in rulings by the Court on several
other public law litigations he brought. In Funa v. Villar, for one, the
Court has held:
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. 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. 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 nontraditional 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. In David,
the Court laid out the bare minimum norm before the so-called
“nontraditional 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;
181
VOL. 742, NOVEMBER 25, 2014 181
Funa vs. Duque III
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. (Bold emphasis
supplied)
In Funa v. Ermita, the Court recognized the locus standi of the
petitioner as a taxpayer, a concerned citizen and a lawyer because
the issue raised therein involved a subject of transcendental
importance whose resolution was necessary to promulgate rules to
guide the Bench, Bar, and the public in similar cases.
The Court notes, however, that during the pendency of this
petition, Duque’s designation as Director or Trustee of the GSIS,
PHILHEALTH, ECC and HDMF could have terminated or been
rendered invalid by the enactment of Republic Act No. 10149, 26 thus
causing this petition and the main issue tendered herein moot and
academic. Pertinent provisions of Republic Act No. 10149, which took
effect on June 6, 2011, state:
_______________
26 An Act to Promote Financial Viability and Fiscal Discipline in
Government-Owned or -Controlled Corporations and to Strengthen
the Role of the State in its Governance and Management to Make
Them More Responsive to the Needs of Public Interest and for Other
Purposes.
182
182 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
SEC. 13. Number of Directors/Trustees.—The present number
of Directors/Trustees provided in the charter of the GOCCs shall be
maintained.
SEC. 14. Ex Officio Alternates.—The ex officio members of the
GOCC may designate their respective alternates who shall be the
officials next-in-rank to them and whose acts shall be considered the
acts of their principals.
ADMELEC Cases
174
SEC. 15. Appointment of the Board of Directors/
Trustees of GOCCs.—An Appointive Director shall be appointed by
the President of the Philippines from a short list prepared by the GCG.
The GCG shall formulate its rules and criteria in the selection and
nomination of prospective appointees and shall cause the creation of
search committees to achieve the same. All nominees included in the
list submitted by the GCG to the President shall meet the Fit and
Proper Rule as defined in this Act and such other qualifications which
the GCG may determine taking into consideration the unique
requirements of each GOCC. The GCG shall ensure that the short list
shall exceed by at least fifty percent (50%) of the number of
directors/trustees to be appointed. In the event that the President does
not see fit to appoint any of the nominees included in the short list, the
President shall ask the GCG to submit additional nominees.
xxxx
SEC. 17. Term of Office.—Any provision in the charters of each
GOCC to the contrary notwithstanding, the term of office of each
Appointive Director shall be for one (1) year, unless sooner removed
for cause: Provided, however, That the Appointive Director shall
continue to hold office until the successor is appointed. An Appointive
Director may be nominated by the GCG for reappointment by the
President only if one obtains a performance score of above average
or its equivalent or higher in the immediately preceding year of tenure
as Appointive Director based on the performance criteria for
Appointive Directors for the GOCC.
183
VOL. 742, NOVEMBER 25, 2014 183
Funa vs. Duque III
Appointed to any vacancy shall be only for the unexpired term of
the predecessor. The appointment of a director to fill such vacancy
shall be in accordance with the manner provided in Section 15 of this
Act.
Any provision of law to the contrary notwithstanding, all incumbent
CEOs and appointive members of the Board of GOCCs shall, upon
approval of this Act, have a term of office until June 30, 2011, unless
sooner replaced by the President: Provided, however, That the
incumbent CEOs and appointive members of the Board shall continue
in office until the successor have been appointed by the President.

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 use or value.27
2.
Unconstitutionality of Duque’s designation as member of the
governing boards of the GSIS, PHIC,ECC and HDMF
Nonetheless, this Court has exercised its power of judicial review
in cases otherwise rendered moot and academic by supervening
events on the basis of certain recognized exceptions, namely: (1)
there is a grave violation of the Constitution; (2) the case involves a
situation of exceptional character and is of paramount public interest;
(3) the constitutional issue raised requires the formulation of
controlling principles to guide the Bench, the Bar and the public; and
(4) the case is capable of repetition yet evading review.28
_______________
27 Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612
SCRA 308, 319.
28 Funa v. Villar, G.R. No. 192791, April 24, 2012, 670 SCRA 579,
592, citing David v. Macapagal-Arroyo, G.R. Nos. 171396,
184
184 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
The situation now obtaining definitely falls under the requirements
for the review of a moot and academic case. For the guidance of and
as a restraint upon the future,29 the Court will not abstain from
exercising its power of judicial review, the cessation of the controversy
notwithstanding. We proceed to resolve the substantive issue
concerning the constitutionality of Duque’s ex officio designation as
member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.
The underlying principle for the resolution of the present
controversy rests on the correct application of Section 1 and Section
2, Article IX-A of the 1987 Constitution, which provide:
ADMELEC Cases
175
Section 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit.
Section 2. No Member of a Constitutional Commission shall,
during his tenure, hold any other office or employment. Neither shall
he engage in the practice of any profession or in the active
management or control of any business which in any way may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise
or privilege granted by the Government, any of its subdivisions,
agencies, or instrumentalities, including government-owned or -
controlled corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution expressly describes
all the Constitutional Commissions as “independent.” Although their
respective functions are essentially ex-
_______________
171409, 171485, 171483, 171400, 171489 & 171424, May 3,
2006, 489 SCRA 160, 214-215.
29 Javier v. Commission on Elections, Nos. L-68379-81,
September 22, 1986, 144 SCRA 194, 198.
185
VOL. 742, NOVEMBER 25, 2014 185
Funa vs. Duque III
ecutive in nature, they are not under the control of the President of
the Philippines in the discharge of such functions. Each of the
Constitutional Commissions conducts its own proceedings under the
applicable laws and its own rules and in the exercise of its own
discretion. Its decisions, orders and rulings are subject only to review
on certiorari by the Court as provided by Section 7, Article IX-A of the
1987 Constitution.30 To safeguard the independence of these
Commissions, the 1987 Constitution, among others,31 imposes under
Section 2, Article IX-A of the Constitution certain inhibitions and dis-
_______________
30 Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990,
192 SCRA 358, 360.

31 The Constitution further vests the Commissions with the
following characteristics to insure their independence:
(a) They are constitutionally created, and may not be abolished
by statute.
(b) Each is expressly described as independent.
(c) Each is conferred certain powers and functions which cannot
be reduced by statute.
(d) The Chairmen and members cannot be removed except by
impeachment.
(e) The Chairmen and members are given a fairly long term of
office of seven years.
(f) The Chairmen and members may not be reappointed or
appointed in an acting capacity.
xxxx
(g) The salaries of the chairman and members are relatively high
and may not be decreased during continuance in office.
(h) The Commissions enjoy fiscal autonomy.
xxxx
(i) Each Commission may promulgate its own procedural rules,
provided they do not diminish, increase or modify substantive rights
[though subject to disapproval by the Supreme Court].
(j) The Chairmen and members are subject to certain
disqualifications calculated to strengthen their integrity.
(k) The Commissions may appoint their own officials and
employees in accordance with Civil Service Law. (Per
Nachura, Outline Reviewer in Political Law, pp. 325-326, 2009 ed.)
186
186 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
qualifications upon the Chairmen and members to strengthen their
integrity, to wit:
(a) Holding any other office or employment during their tenure;
(b) Engaging in the practice of any profession;
(c) Engaging in the active management or control of any business
which in any way may be affected by the functions of his office; and
(d) Being financially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the Government, any
of its subdivisions, agencies or instrumentalities, including
government-owned or -con-trolled corporations or their subsidiaries.32
ADMELEC Cases
176
The issue herein involves the first disqualification above
mentioned, which is the disqualification from holding any other office
or employment during Duque’s tenure as Chairman of the CSC. The
Court finds it imperative to interpret this disqualification in relation to
Section 7, paragraph (2), Article IX-B of the Constitution and the
Court’s pronouncement in Civil Liberties Union v. Executive Secretary.
Section 7, paragraph (2), Article IX-B reads:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of
his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or -controlled
corporations or their subsidiaries.
_______________
32 Nachura, id., at p. 326.
187
VOL. 742, NOVEMBER 25, 2014 187
Funa vs. Duque III
In Funa v. Ermita,33 where petitioner challenged the concurrent
appointment of Elena H. Bautista as Undersecretary of the
Department of Transportation and Communications and as Officer-in-
Charge of the Maritime Industry Authority, the Court reiterated the
pronouncement in Civil Liberties Union v. The Executive Secretary on
the intent of the Framers on the foregoing provision of the 1987
Constitution, to wit:
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice
President, Members of the Cabinet, their deputies and assistants.
xxxx

Since the evident purpose of the framers of the 1987 Constitution
is to impose a stricter prohibition on the President, Vice President,
members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation. The phrase
“unless otherwise provided in this Constitution” must be given a literal
interpretation to refer only to those particular instances cited in the
Constitution itself,
_______________
33 Supra note 27.
188
188 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
to wit: the Vice President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in
those instances provided under Section 7, pars. (2) and (3), Article VII;
and the Secretary of Justice being ex officio member of the Judicial
and Bar Council by virtue of Section 8(1), Article VIII.34
Being an appointive public official who does not occupy a Cabinet
position (i.e., President, the Vice President, Members of the Cabinet,
their deputies and assistants), Duque was thus covered by the general
rule enunciated under Section 7, paragraph (2), Article IX-B. He can
hold any other office or employment in the Government during his
tenure if such holding is allowed by law or by the primary functions of
his position.
Respondents insist that Duque’s ex officio designation as member
of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF
is allowed by the primary functions of his position as the CSC
ADMELEC Cases
177
Chairman. To support this claim, they cite Section 14, Chapter 3, Title
I-A, Book V of EO 292, to wit:
Section 14. Membership of the Chairman in Boards.—The
Chairman shall be a member of the Board of Directors or of other
governing bodies of government entities whose functions affect the
career development, employment status, rights, privileges, and
welfare of government officials and employees, such as the
Government Service Insurance System, Foreign Service Board,
Foreign Trade Service Board, National Board for Teachers, and such
other similar boards as may be created by law.
As to the meaning of ex officio, the Court has decreed in Civil
Liberties Union v. Executive Secretary that —
_______________
34 Supra note 17 at pp. 329-331.
189
VOL. 742, NOVEMBER 25, 2014 189
Funa vs. Duque III
x x x x The term ex officio means “from office; by virtue of office.”
It refers to an “authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed
to the official position.” Ex officio likewise denotes an “act done in an
official character, or as a consequence of office, and without any other
appointment or authority other than that conferred by the office.” An ex
officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment. x x x
xxxx
The ex officio position being actually and in legal contemplation
part of the principal office, it follows that the official concerned has no
right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. x x x35
Section 3, Article IX-B of the 1987 Constitution describes the CSC
as the central personnel agency of the government and is principally
mandated to establish a career service and adopt measures to

promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service; to strengthen the
merit and rewards system; to integrate all human resources
development programs for all levels and ranks; and to institutionalize
a management climate conducive to public accountability. Its specific
powers and functions are as follows:
(1) Administer and enforce the constitutional and statutory
provisions on the merit system for all levels and ranks in the Civil
Service;
(2) Prescribe, amend and enforce rules and regulations for
carrying into effect the provisions of the Civil Service Law and other
pertinent laws;
_______________
35 Id., at pp. 333-335.
190
190 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
(3) Promulgate policies, standards and guidelines for the Civil
Service and adopt plans and programs to promote economical,
efficient and effective personnel administration in the government;
(4) Formulate policies and regulations for the administration,
maintenance and implementation of position classification and
compensation and set standards for the establishment, allocation and
reallocation of pay scales, classes and positions;
(5) Render opinion and rulings on all personnel and other Civil
Service matters which shall be binding on all heads of departments,
offices and agencies and which may be brought to the Supreme Court
on certiorari;
(6) Appoint and discipline its officials and employees in
accordance with law and exercise control and supervision over the
activities of the Commission;
(7) Control, supervise and coordinate Civil Service examinations.
Any entity or official in government may be called upon by the
Commission to assist in the preparation and conduct of said
examinations including security, use of buildings and facilities as well
as personnel and transportation of examination materials which shall
be exempt from inspection regulations;
ADMELEC Cases
178
(8) Prescribe all forms for Civil Service examinations,
appointments, reports and such other forms as may be required by
law, rules and regulations;
(9) Declare positions in the Civil Service as may properly be
primarily confidential, highly technical or policy determining;
(10) Formulate, administer and evaluate programs relative to the
development and retention of qualified and competent work force in
the public service;
(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. Officials and employees who fail to comply
with such decisions, orders, or rulings shall be liable for contempt of
the
191
VOL. 742, NOVEMBER 25, 2014 191
Funa vs. Duque III
Commission. Its decisions, orders, or rulings shall be final and
executory. Such decisions, orders, or rulings may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty (30)
days from receipt of a copy thereof;
(12) Issue subpoena and subpoena duces tecum for the
production of documents and records pertinent to investigation and
inquiries conducted by it in accordance with its authority conferred by
the Constitution and pertinent laws;
(13) Advise the President on all matters involving personnel
management in the government service and submit to the President
an annual report on the personnel programs;
(14) Take appropriate action on all appointments and other
personnel matters in the Civil Service including extension of Service
beyond retirement age;
(15) Inspect and audit the personnel actions and programs of the
departments, agencies, bureaus, offices, local government units and
other instrumentalities of the government including government-
owned or -controlled corporations; conduct periodic review of the
decisions and actions of offices or officials to whom authority has been
delegated by the Commission as well as the conduct of the officials

and the employees in these offices and apply appropriate sanctions
when necessary;
(16) Delegate authority for the performance of any functions to
departments, agencies and offices where such functions may be
effectively performed;
(17) Administer the retirement program for government officials
and employees, and accredit government services and evaluate
qualifications for retirement;
(18) Keep and maintain personnel records of all officials and
employees in the Civil Service; and
192
192 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
(19) Perform all functions properly belonging to a central
personnel agency and such other functions as may be provided by
law.36
On the other hand, enumerated below are the specific duties and
responsibilities of the CSC Chairman, namely:
(1) Direct all operations of the Commission;
(2) Establish procedures for the effective operations of the
Commission;
(3) Transmit to the President rules and regulations, and other
guidelines adopted by the Chairman which require Presidential
attention including annual and other periodic reports;
(4) Issue appointments to, and enforce decisions on
administrative discipline involving officials and employees of the
Commission;
(5) Delegate authority for the performance of any function to
officials and employees of the Commission;
(6) Approve and submit the annual and supplemental budget of
the Commission; and
(7) Perform such other functions as may be provided by law.37
Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the
CSC Chairman’s membership in a governing body is dependent on
the condition that the functions of the government entity where he will
ADMELEC Cases
179
sit as its Board member must affect the career development,
employment status, rights, privileges, and welfare of government
officials and employees. Based on this, the Court finds no irregularity
in Section 14, Chapter 3, Title I-A, Book V of EO 292 because matters
affecting the career development, rights and welfare of government
employees are among the primary functions of the CSC and
_______________
36 Section 12, Chapter 3, Title I-A, Book V of EO 292.
37 Section 13, Chapter 3, Title I-A, Book V of EO 292.
193
VOL. 742, NOVEMBER 25, 2014 193
Funa vs. Duque III
are consequently exercised through its Chairman. The CSC
Chairman’s membership therein must, therefore, be considered to be
derived from his position as such. Accordingly, the constitutionality of
Section 14, Chapter 3, Title I-A, Book V of EO 292 is upheld.
However, there is a need to determine further whether Duque’s
designation as Board member of the GSIS, PHILHEALTH, ECC and
HDMF is in accordance with the 1987 Constitution and the condition
laid down in Section 14, Chapter 3, Title I-A, Book V of EO 292. It is
necessary for this purpose to examine the functions of these
government entities under their respective charters, to wit:
The GSIS Charter, Republic Act No. 8291
SECTION 41. Powers and Functions of the GSIS.
—The GSIS shall exercise the following powers and functions:
(a) to formulate, adopt, amend and/or rescind such rules and
regulations as may be necessary to carry out the provisions and
purposes of this Act, as well as the effective exercise of the powers
and functions, and the discharge of duties and responsibilities of the
GSIS, its officers and employees;
(b) to adopt or approve the annual and supplemental budget of
receipts and expenditures including salaries and allowances of the
GSIS personnel; to authorize such capital and operating expenditures
and disbursements of the GSIS as may be necessary and proper for
the effective management and operation of the GSIS;
(c) to invest the funds of the GSIS, directly or indirectly, in
accordance with the provisions of this Act;

(d) to acquire, utilize or dispose of, in any manner recognized by
law, real or personal property in the Philippines or elsewhere
necessary to carry out the purposes of this Act;
194
194 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
(e) to conduct continuing actuarial and statistical studies and
valuations to determine the financial condition of the GSIS and taking
into consideration such studies and valuations and the limitations
herein provided, readjust the benefits, contributions, premium rates,
interest rates or the allocation or reallocation of the funds to the
contingencies covered;
(f) to have the power of succession;
(g) to sue and be sued;
(h) to enter into, make, perform and carry out contracts of every
kind and description with any person, firm or association or
corporation, domestic or foreign;
(i) to carry on any other lawful business whatsoever in pursuance
of, or in connection with the provisions of this Act;
(j) to have one or more offices in and outside of the Philippines,
and to conduct its business and exercise its powers throughout and in
any part of the Republic of the Philippines and/or in any or all foreign
countries, states and territories: Provided, That the GSIS shall
maintain a branch office in every province where there exists a
minimum of fifteen thousand (15,000) membership;
(k) to borrow funds from any source, private or government,
foreign or domestic, only as an incident in the securitization of housing
mortgages of the GSIS and on account of its receivables from any
government or private entity;
(l) to invest, own or otherwise participate in equity in any
establishment, firm or entity;
(m) to approve appointments in the GSIS except
appointments to positions which are policy determining,
primarily confidential or highly technical in nature according to
the Civil Service rules and regulations: Provided, That all
positions in the GSIS shall be governed by a compensation and
position classification system and qualifications standards
approved by the GSIS Board of Trustees based on a
comprehensive job analysis
ADMELEC Cases
180
195
VOL. 742, NOVEMBER 25, 2014 195
Funa vs. Duque III
and audit of actual duties and responsibilities: Provided,
further, That the compensation plan shall be comparable with the
prevailing compensation plans in the private sector and shall be
subject to the periodic review by the Board no more than once
every four (4) years without prejudice to yearly merit reviews or
increases based on productivity and profitability;
(n) to design and adopt an Early Retirement Incentive Plan
(ERIP) and/or financial assistance for the purpose of retirement
for its own personnel;
(o) to fix and periodically review and adjust the rates of interest
and other terms and conditions for loans and credits extended to
members or other persons, whether natural or juridical;
(p) to enter into agreement with the Social Security System
or any other entity, enterprise, corporation or partnership for the
benefit of members transferring from one system to another
subject to the provision of Republic Act No. 7699, otherwise
known as the Portability Law;
(q) to be able to float proper instrument to liquefy long-term
maturity by pooling funds for short-term secondary market;
(r) to submit annually, not later than June 30, a public report to
the President of the Philippines and the Congress of the Philippines
regarding its activities in the administration and enforcement of this
Act during the preceding year including information and
recommendations on broad policies for the development and
perfection of the programs of the GSIS;
(s) to maintain a provident fund, which consists of
contributions made by both the GSIS and its officials and
employees and their earnings, for the payment of benefits to
such officials and employees or their heirs under such terms and
conditions as it may prescribe;
196
196 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III

(t) to approve and adopt guidelines affecting investments,
insurance coverage of government properties, settlement of claims,
disposition of acquired assets, privatization or expansion of
subsidiaries, development of housing projects, increased benefit and
loan packages to members, and the enforcement of the provisions of
this Act;
(u) any provision of law to the contrary notwithstanding, to
authorize the payment of extra remuneration to the officials and
employees directly involved in the collection and/or remittance of
contributions, loan repayments, and other monies due to the GSIS at
such rates and under such conditions as it may adopt. Provided, That
the best interest of the GSIS shall be observed thereby;
(v) to determine, fix and impose interest upon unpaid premiums
due from employers and employees;
(w) to ensure the collection or recovery of all indebtedness,
liabilities and/or accountabilities, including unpaid premiums or
contributions in favor of the GSIS arising from any cause or source
whatsoever, due from all obligors, whether public or private. The
Board shall demand payment or settlement of the obligations referred
to herein within thirty (30) days from the date the obligation becomes
due, and in the event of failure or refusal of the obligor or debtor to
comply with the demand, to initiate or institute the necessary or proper
actions or suits, criminal, civil or administrative or otherwise, before
the courts, tribunals, commissions, boards, or bodies of proper
jurisdiction within thirty (30) days reckoned from the expiry date of the
period fixed in the demand within which to pay or settle the account;
(x) to design and implement programs that will promote and
mobilize savings and provide additional resources for social security
expansion and at the same time afford individual members
appropriate returns on their savings/investments. The programs shall
be so designed as to spur socio-economic takeoff and maintain
continued growth; and
197
VOL. 742, NOVEMBER 25, 2014 197
Funa vs. Duque III
(y) to exercise such powers and perform such other acts as may
be necessary, useful, incidental or auxiliary to carry out the provisions
of this Act, or to attain the purposes and objectives of this Act.
The PHILHEALTH Charter, Republic Act No. 7875
ADMELEC Cases
181
SEC. 16. Powers and Functions.—The Corporation shall have
the following powers and functions:
(a) to administer the National Health Insurance Program;
(b) to formulate and promulgate policies for the sound
administration of the Program;
(c) to set standards, rules, and regulations necessary to ensure
quality of care, appropriate utilization of services, fund viability,
member satisfaction, and overall accomplishment of Program
objectives;
(d) to formulate and implement guidelines on contributions and
benefits; portability of benefits, cost containment and quality
assurance; and health care provider arrangements, payment,
methods, and referral systems;
(e) to establish branch offices as mandated in Article V of this
Act;
(f) to receive and manage grants, donations, and other forms of
assistance;
(g) to sue and be sued in court;
(h) to acquire property, real and personal, which may be
necessary or expedient for the attainment of the purposes of this Act;
(i) to collect, deposit, invest, administer, and disburse the
National Health Insurance Fund in accordance with the provisions of
this Act;
(j) to negotiate and enter into contracts with health care
institutions, professionals, and other persons, juridical or natural,
regarding the pricing, payment mechanisms, design and
implementation of administra-
198
198 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
tive and operating systems and procedures, financing, and
delivery of health services;
(k) to authorize Local Health Insurance Offices to negotiate and
enter into contracts in the name and on behalf of the Corporation with
any accredited government or private sector health provider
organization, including but not limited to health maintenance
organizations, cooperatives and medical foundations, for the provision
of at least the minimum package of personal health services
prescribed by the Corporation;

(l) to determine requirements and issue guidelines for the
accreditation of health care providers for the Program in accordance
with this Act;
(m) to supervise the provision of health benefits with the power
to inspect medical and financial records of health care providers and
patients who are participants in or members of the Program, and the
power to enter and inspect accredited health care institutions, subject
to the rules and regulations to be promulgated by the Corporation;
(n) to organize its office, fix the compensation of and
appoint personnel as may be deemed necessary and upon the
recommendation of the president of the Corporation;
(o) to submit to the President of the Philippines and to both
Houses of Congress its Annual Report which shall contain the status
of the National Health Insurance Fund, its total disbursements,
reserves, average costing to beneficiaries, any request for additional
appropriation, and other data pertinent to the implementation of the
Program and publish a synopsis of such report in two (2) newspapers
of general circulation;
(p) to keep records of the operations of the Corporation and
investments of the National Health Insurance Fund; and
(q) to perform such other acts as it may deem appropriate for the
attainment of the objectives of the Corporation and for the proper
enforcement of the provisions of this Act.
199
VOL. 742, NOVEMBER 25, 2014 199
Funa vs. Duque III
The HDMF Charter, Republic Act No. 9679
SEC. 13. Powers and Functions of the Fund.—The Fund shall
have the powers and functions specified in this Act and the usual
corporate powers:
(a) To formulate, adopt, amend and/or rescind such rules and
regulations as may be necessary to carry out the provisions and
purposes of this Act, as well as the effective exercise of the powers
and functions, and the discharge of duties and responsibilities of the
Fund, its officers and employees;
(b) To adopt or approve the annual and supplemental budget of
receipts and expenditures including salaries and allowances of the
Fund personnel, to authorize such capital and operating expenditures
ADMELEC Cases
182
and disbursements of the Fund as may be necessary and proper for
the effective management and operation of the Fund;
(c) To submit annually to the President of the Philippines not later
than March 15, a report of its activities and the state of the Fund during
the preceding year, including information and recommendations for
the development and improvement thereof;
(d) To invest not less than seventy percent (70%) of its investible
funds to housing, in accordance with this Act;
(e) To acquire, utilize, or dispose of, in any manner recognized
by law, real or personal properties to carry out the purposes of this
Act;
(f) To set up its own accounting and computer systems; to
conduct continuing actuarial and statistical studies and valuations to
determine the financial viability of the Fund and its project; to require
reports, compilations and analysis of statistical and economic data, as
well as make such other studies and surveys as may be needed for
the proper administration and development of the Fund;
(g) To have the power of succession; to sue and be sued; to
adopt and use a corporate seal;
200
200 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
(h) To enter into and carry out contracts of every kind and
description with any person, firm or association or corporation,
domestic or foreign;
(i) To borrow funds from any source, private or government,
foreign or domestic;
(j) To invest, own or otherwise participate in equity in any
establishment, or entity; to form, organize, invest in or establish and
maintain a subsidiary or subsidiaries in relation to any of its purposes;
(k) To approve appointments in the Fund except
appointments to positions which are policy determining,
primarily confidential or highly technical in nature according to
the civil service rules and regulations: Provided, That all
positions in the Fund shall be governed by a compensation and
position classification system and qualification standards
approved by the Fund’s Board of Trustees based on a
comprehensive job analysis, wage compensation study and
audit of actual duties and responsibilities: Provided, further, That

the compensation plan shall be comparable with prevailing
compensation plans in the private sector and shall be subject to
the periodic review of the Board no more than once every four (4)
years without prejudice to yearly merit reviews or increases
based on productivity and profitability. The Fund shall, therefore,
be exempt from any laws, rules and regulations on salaries and
compensations;
(l) To maintain a provident fund, which shall consist of
contributions made by both the Fund and its officers and
employees and their earnings, for the payment of benefits to
such officials and employees or their heirs under such terms and
conditions as it may prescribe;
(m) To design and adopt an early retirement incentive plan
(ERIP) for its own personnel;
201
VOL. 742, NOVEMBER 25, 2014 201
Funa vs. Duque III
(n) To establish field offices and to conduct its business and
exercise its powers in these places;
(o) To approve restructuring proposal for the payment of due but
unremitted contributions and unpaid loan amortizations under such
terms and conditions as the Board of Trustees may prescribe;
(p) To determine, fix and impose interest and penalties upon
unpaid contributions due from employers and employees;
(q) To ensure the collection and recovery of all indebtedness,
liabilities and/or accountabilities, including unpaid contributions in
favor of the Fund arising from any cause or source or whatsoever, due
from all obligors, whether public or private; to demand payment of the
obligations referred to herein, and in the event of failure or refusal of
the obligor or debtor to comply with the demand, to initiate or institute
the necessary or proper actions or suits, criminal, civil, administrative,
or otherwise, before the courts, tribunals, commissions, boards or
bodies of proper jurisdiction: Provided, however, That the Fund may
compromise or release, in whole or in part, any interest, penalty or civil
liability to the Fund in connection with the collection of contributions
and the lending operations of the Fund, under such terms and
conditions as prescribed by the Board of Trustees: Provided,
further, That the Board may, upon recommendation of the Chief
Executive Officer, deputize any member of the Fund’s legal staff to act
ADMELEC Cases
183
as special sheriff in foreclosure cases, in the sale or attachment of the
debtor’s properties, and in the enforcement of court writs and
processes in cases involving the Fund. The special sheriff of the Fund
shall make a report to the proper court after any action taken by him,
which shall treat such action as if it were an act of its own sheriffs in
all respects;
(r) To design and implement other programs that will further
promote and mobilize savings and provide additional resources for the
mutual benefit of the members with appropriate returns on the
savings/investments. The program shall be so designed as to spur
socio-economic takeoff and maintain continued growth;
202
202 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
(s) To conduct continuing actuarial and statistical studies and
valuations to determine the financial condition of the Fund and taking
into consideration such studies and valuations and the limitations
herein provided, readjust the benefits, contributions, interest rates of
the allocation or reallocation of the funds to the contingencies covered;
and
(t) To exercise such powers and perform such acts as may be
necessary, useful, incidental or auxiliary to carry out the provisions of
this Act.
The ECC Charter, Presidential Decree No. 626
ART. 177. Powers and duties.—The Commission shall have the
following powers and duties:
(a) To assess and fix a rate of contribution from all employers;
(b) To determine the rate of contribution payable by an employer
whose records show a high frequency of work accidents or
occupational disease due to failure by the said employer to observe
adequate safety measures;
(c) To approve rules and regulations governing the processing of
claims and the settlement of disputes arising therefrom as prescribed
by the System;
(d) To initiate policies and programs toward adequate
occupational health and safety and accident prevention in the working
environment, rehabilitation other than those provided for under Art.
190 hereof, and other related programs and activities, and to
appropriate funds therefor. (As amended by Sec. 3, P.D. 1368)

(e) To make the necessary actuarial studies and calculations
concerning the grant of constant help and income benefits for
permanent disability or death, and the rationalization of the benefits
for permanent disability and death under the Title with benefits
payable by the System for similar contingencies; Provided, That the
Commission may upgrade benefits and add new ones subject to
approval of the President; and Provided, further, That the actuarial
stability of the State Insurance
203
VOL. 742, NOVEMBER 25, 2014 203
Funa vs. Duque III
Fund shall be guaranteed; Provided, finally, That such increases
in benefits shall not require any increases in contribution, except as
provided for in paragraph (b) hereof. (As amended by Sec. 3, P.D.
1641)
(f) To appoint the personnel of its staff, subject to civil
service law and rules, but exempt from WAPCO law and
regulations;
(g) To adopt annually a budget of expenditures of the
Commission and its staff chargeable against the State Insurance
Fund: Provided, that the SSS and GSIS shall advance on a quarterly
basis the remittances of allotment of the loading fund for this
Commission’s operational expenses based on its annual budget as
duly approved by the Ministry of Budget and Management. (As
amended by Sec. 3, P.D. 1921)
(h) To have the power to administer oath and affirmation, and to
issue subpoena and subpoena duces tecum in connection with any
question or issue arising from appealed cases under this Title;
(i) To sue and be sued in court;
(j) To acquire property, real or personal, which may be necessary
or expedient for the attainment of the purposes of this Title;
(k) To enter into agreements or contracts for such services or aid
as may be needed for the proper, efficient and stable administration
of the program;
(l) To perform such other acts as it may deem appropriate for the
attainment of the purposes of the Commission and proper
enforcement of the provisions of this Title. (As amended by Sec. 18,
P.D. 850) (Emphasis supplied)
ADMELEC Cases
184
The GSIS, PHILHEALTH, ECC and HDMF are vested by their
respective charters with various powers and functions to carry out the
purposes for which they were created. While powers and functions
associated with appointments, compensation and benefits affect the
career development, employment status, rights, privileges, and
welfare of government
204
204 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
officials and employees, the GSIS, PHILHEALTH, ECC and HDMF
are also tasked to perform other corporate powers and functions that
are not personnel-related. All of these powers and functions, whether
personnel-related or not, are carried out and exercised by the
respective Boards of the GSIS, PHILHEALTH, ECC and HDMF.
Hence, when the CSC Chairman sits as a member of the governing
Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions, which are not anymore derived from his
position as CSC Chairman, such as imposing interest on unpaid or
unremitted contributions,38 issuing guidelines for the accreditation of
health care providers,39 or approving restructuring proposals in the
payment of unpaid loan amortizations.40 The Court also notes that
Duque’s designation as member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF entitles him to receive per diem,41 a
form of additional compensation that is disallowed by the concept of
an ex officio position by virtue of its clear contravention of the
proscription set by Section 2, Article IX-A of the 1987 Constitution.
This situation goes against the principle behind an ex officio position,
and must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices,
Duque’s designation as member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF impairs the independence of the CSC.
Under Section 17,42 Article VII of the Constitution, the President
exercises control over all government offices in the Executive Branch.
An office that is legally not under the control of the President is not
part of the
_______________
38 RA 8291, Section 43(h).
39 RA 7875, Section 16(l).

40 RA 9679, Section 13(o).
41 See RA 8291, Section 42; RA 7875, Section 18(d); PD 626,
Article 176(b); RA 9679, Section 14.
42 Section 17. The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the
laws be faithfully executed.
205
VOL. 742, NOVEMBER 25, 2014 205
Funa vs. Duque III
Executive Branch.43 The Court has aptly explained in Rufino v.
Endriga:44
Every government office, entity, or agency must fall under the
Executive, Legislative, or Judicial branches, or must belong to one of
the independent constitutional bodies, or must be a quasi-judicial body
or local government unit. Otherwise, such government office, entity, or
agency has no legal and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches
of government. The CCP is also not one of the independent
constitutional bodies. Neither is the CCP a quasi-judicial body nor a
local government unit. Thus, the CCP must fall under the Executive
branch. Under the Revised Administrative Code of 1987, any agency
“not placed by law or order creating them under any specific
department” falls “under the Office of the President.”
Since the President exercises control over “all the executive
departments, bureaus, and offices,” the President necessarily
exercises control over the CCP which is an office in the Executive
branch. In mandating that the President “shall have control of all
executive . . . offices,” x x x Section 17, Article VII of the 1987
Constitution does not exempt any executive office — one performing
executive functions outside of the independent constitutional bodies
— from the President’s power of control. There is no dispute that the
CCP performs executive, and not legislative, judicial, or quasi-judicial
functions.
The President’s power of control applies to the acts or
decisions of all officers in the Executive branch. This is true
whether such officers are appointed by the President or by heads
of depart-
_______________
ADMELEC Cases
185
43 Liban v. Gordon, G.R. No. 175352, July 15, 2009, 593 SCRA
68, 85.
44 G.R. Nos. 139554 & 139565, July 21, 2006, 496 SCRA 13, 63-
65.
206
206 SUPREME COURT REPORTS ANNOTATED
Funa vs. Duque III
ments, agencies, commissions, or boards. The power of
control means the power to revise or reverse the acts or
decisions of a subordinate officer involving the exercise of
discretion.
In short, the President sits at the apex of the Executive branch,
and exercises “control of all the executive departments, bureaus, and
offices.” There can be no instance under the Constitution where an
officer of the Executive branch is outside the control of the President.
The Executive branch is unitary since there is only one President
vested with executive power exercising control over the entire
Executive branch. Any office in the Executive branch that is not under
the control of the President is a lost command whose existence is
without any legal or constitutional basis. (Emphasis supplied)
As provided in their respective charters, PHILHEALTH and ECC
have the status of a government corporation and are deemed attached
to the Department of Health45 and the Department of
Labor,46 respectively. On the other hand, the GSIS and HDMF fall
under the Office of the President.47 The corporate powers of the GSIS,
PHILHEALTH, ECC and HDMF are exercised through their governing
Boards, members of which are all appointed by the President of the
Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF
and the members of their respective governing Boards are under the
control of the President. As such, the CSC Chairman cannot be a
member of a government entity that is
_______________
45 Section 14, RA 7875.
46 Article 176, PD 626.
47 Section 23, Chapter 8, Title II, Book III of EO 292. The
Agencies under the Office of the President.—The agencies under the
 186

Office of the President refer to those offices placed under the supported on equitable grounds since it seems unjust that the public
chairmanship of the President, those under the supervision and should
control of the President, those under the administrative supervision of
the Office of the President, those attached to it for policy and program _______________
coordination, and those that are not placed by law or order creating
them under any special department. 48 Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574
SCRA 817, 830.
207 49 Supra note 17 at pp. 339-340.
VOL. 742, NOVEMBER 25, 2014 207
208
Funa vs. Duque III 208 SUPREME COURT REPORTS ANNOTATED
under the control of the President without impairing the
independence vested in the CSC by the 1987 Constitution. Funa vs. Duque III

3. benefit by the services of an officer de facto and then be freed from

Effect of declaration of unconstitutionality all liability to pay any one for such services. Any per diem, allowances
of Duque’s designation as member of the governing Boards of or other emoluments received by the respondents by virtue of actual
the GSIS, PHILHEALTH, ECC and HDMF — The De Facto Officer services rendered in the questioned positions may therefore be
Doctrine retained by them.

In view of the application of the prohibition under Section 2, Article

A de facto officer is one who derives his appointment from one
IX-A of the 1987 Constitution, Duque did not validly hold office as
having colorable authority to appoint, if the office is an appointive
Director or Trustee of the GSIS, PHILHEALTH, ECC and HDMF
office, and whose appointment is valid on its face.50 He may also be
concurrently with his position of CSC Chairman. Accordingly, he was one who is in possession of an office, and is discharging its duties
not to be considered as a de jure officer while he served his term as
under color of authority, by which is meant authority derived from an
Director or Trustee of these GOCCs. A de jure officer is one who is
appointment, however irregular or informal, so that the incumbent is
deemed, in all respects, legally appointed and qualified and whose
not a mere volunteer.51 Consequently, the acts of the de facto officer
term of office has not expired.48
are just as valid for all purposes as those of a de jure officer, insofar
That notwithstanding, Duque was a de facto officer during his as the public or third persons who are interested therein are
tenure as a Director or Trustee of the GSIS, PHILHEALTH, ECC and concerned.52
HDMF. In Civil Liberties Union v. Executive Secretary,49 the Court has
In order to be clear, therefore, the Court holds that all official
said:
actions of Duque as a Director or Trustee of the GSIS, PHILHEALTH,
During their tenure in the questioned positions, respondents may
ECC and HDMF, were presumed valid, binding and effective as if he
be considered de facto officers and as such entitled to emoluments for
was the officer legally appointed and qualified for the office. 53 This
actual services rendered. It has been held that “in cases where there clarification is necessary in order to protect the sanctity and integrity
is no de jure, officer, a de facto officer, who, in good faith has had of the dealings by the public with persons whose ostensible authority
possession of the office and has discharged the duties pertaining
emanates from the State. Duque’s official actions covered by this
thereto, is legally entitled to the emoluments of the office, and may in
clarification extend but are not limited to the issuance of Board
an appropriate action recover the salary, fees and other
resolutions and memoranda approving appointments to positions in
compensations attached to the office. This doctrine is, undoubtedly,

ADMELEC Cases
 187

the concerned GOCCs, promulgation of policies and guidelines on

compensation and employee benefits, and adop-
_______________

50 Dimaandal v. Commission on Audit, G.R. No. 122197, June

26, 1998, 291 SCRA 322, 330.
51 Id.; see also Civil Service Commission v. Joson, Jr., G.R. No.
154674, May 27, 2004, 429 SCRA 773, 786.
52 Supra note 48 at pp. 829-830.
53 See Señeres v. Commission on Elections, G.R. No. 178678,
April 16, 2009, 585 SCRA 557, 575.
209
VOL. 742, NOVEMBER 25, 2014 209
Funa vs. Duque III
tion of programs to carry out the corporate powers of the GSIS,
PHILHEALTH, ECC and HDMF.
WHEREFORE, the petition is PARTIALLY GRANTED. The
Court UPHOLDS THE CONSTITUTIONALITY of Section 14, Chapter
3, Title I-A, Book V of Executive Order No. 292; ANNULS AND
VOIDS Executive Order No. 864 dated February 22, 2010 and the
designation of Hon. Francisco T. Duque III as a Member of the Board
of Directors/Trustees of the Government Service Insurance System;
Philippine Health Insurance Corporation; Employees’ Compensation
Commission; and Home Development Mutual Fund in an ex
officio capacity in relation to his appointment as Chairman of the Civil
Service Commission for being UNCONSTITUTIONAL AND
VIOLATIVE of Sections 1 and 2, Article IX-A of the 1987 Constitution;
and DECLARES that Hon. Francisco T. Duque III was a de
facto officer during his tenure as Director/Trustee of the Government
Service Insurance System; Philippine Health Insurance Corporation;
Employees’ Compensation Commission; and Home Development
Mutual Fund.
No pronouncement on costs of suit.
SO ORDERED.

ADMELEC Cases

Civil Service
G.R. No. 98107. August 18, 1997.*
BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and NATIONAL HOUSING CORPORATION,
respondents.
Constitutional Law; Statutes; Civil Service
Commission; National Service Corporation; NASECO which had been
organized under the general incorporation statute and a subsidiary of
the National Investment Development Corporation, which in turn was
a subsidiary of the Philippine National Bank, is excluded from the
purview of the Civil Service Commission.—Constitution now provides:
“The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government owned or controlled corporations with original charter.”
(Article IX-B, Section 2[1]) In National Service Corporation (NASECO)
v. National Labor Relations Commission, we had the occasion to apply
the present Constitution in deciding whether or not the employees of
NASECO are covered by the Civil Service Law or the Labor Code
notwithstanding that the case arose at the time when the 1973
Constitution was still in effect. We ruled that the
___________________
* FIRST DIVISION.
529
VOL. 277, AUGUST 18, 1997 529
Juco vs. National Labor Relations
Commission
NLRC has jurisdiction over the employees of NASECO on the
ground that it is the 1987 Constitution that governs because it is the
Constitution in place at the time of the decision. Furthermore, we ruled
that the new phrase “with original charter” means that government-
owned and controlled corporations refer to corporations chartered by
special law as distinguished from corporations organized under the
Corporation Code. Thus, NASECO which had been organized under
the general incorporation statute and a subsidiary of the National
Investment Development Corporation, which in turn was a subsidiary
ADMELEC Cases
188
of the Philippine National Bank, is excluded from the purview of the
Civil Service Commission.
National Housing Authority; Labor Law; Labor
Unions; Certification Elections; NHA is now within the jurisdiction of
the Department of Labor and Employment, it being a government-
owned and/or controlled corporation without an original charter. NHA
workers or employees undoubtedly have the right to form unions or
employee’s organization and that there is no impediment to the
holding of a certification election among them as they are covered by
the Labor Code.—In the case at bench, the National Housing
Corporation is a government- owned corporation organized in 1959 in
accordance with Executive Order No. 399, otherwise known as the
Uniform Charter of Government Corporation, dated January 1, 1959.
Its shares of stock are and have been one hundred percent (100%)
owned by the Government from its incorporation under Act 1459, the
former corporation law. The government entities that own its shares of
stock are the Government Service Insurance System, the Social
Security System, the Development Bank of the Philippines, the
National Investment and Development Corporation and the People’s
Homesite and Housing Corporation. Considering the fact that the NHA
had been incorporated under Act 1459, the former corporation law, it
is but correct to say that it is a government-owned or controlled
corporation whose employees are subject to the provisions of the
Labor Code. This observation is reiterated in the recent case of Trade
Union of the Philippines and Allied Services (TUPAS) v. National
Housing Corporation, where we held that the NHA is now within the
jurisdiction of the Department of Labor and Employment, it being a
government-owned and/or controlled corporation without an original
charter. Furthermore, we also held that the workers or employees of
the NHC (now NHA) undoubtedly have the right to form unions or
employee’s organization and that there is no impediment to the
holding of a certification election among them as they are covered by
the Labor Code.
530
530 SUPREME COURT REPORTS ANNOTATED
Juco vs. National Labor Relations Commission
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Ricardo C. Valmonte for petitioner.
The Solicitor General for respondents.
HERMOSISIMA, JR., J.:
This is a petition for certiorari to set aside the Decision of the National
Labor Relations Commission (NLRC) dated March 14, 1991, which
reversed the Decision dated May 21, 1990 of Labor Arbiter Manuel R.
Caday, on the ground of lack of jurisdiction.
Petitioner Benjamin C. Juco was hired as a project engineer of
respondent National Housing Corporation (NHC) from November 16,
1970 to May 14, 1975. On May 14, 1975, he was separated from the
service for having been implicated in a crime of theft and/or
malversation of public funds.
On March 25, 1977, petitioner filed a complaint for illegal dismissal
against the NHC with the Department of Labor.
On September 17, 1977, the Labor Arbiter rendered a decision
dismissing the complaint on the ground that the NLRC had no
jurisdiction over the case.1
Petitioner then elevated the case to the NLRC which rendered a
decision on December 28, 1982, reversing the decision of the Labor
Arbiter.2
Dissatisfied with the decision of the NLRC, respondent NHC
appealed before this Court and on January 17, 1985, we rendered a
decision, the dispositive portion thereof reads as follows:
“WHEREFORE, the petition is hereby GRANTED. The questioned
decision of the respondent National Labor Relations Commis-
______________________
1 Rollo, pp. 20-21.
2 Id., pp. 22-26.
531
VOL. 277, AUGUST 18, 1997 531
Juco vs. National Labor Relations Commission
sion is SET ASIDE. The decision of the Labor Arbiter dismissing the
case before it for lack of jurisdiction is REINSTATED.”3
ADMELEC Cases
189
On January 6, 1989, petitioner filed with the Civil Service Commission
a complaint for illegal dismissal, with preliminary mandatory
injunction.4
On February 6, 1989, respondent NHC moved for the dismissal of
the complaint on the ground that the Civil Service Commission has no
jurisdiction over the case.5
On April 11, 1989, the Civil Service Commission issued an order
dismissing the complaint for lack of jurisdiction. It ratiocinated that:
“The Board finds the comment and/or motion to dismiss meritorious.
It was not disputed that NHC is a government corporation without an
original charter but organized/created under the Corporation Code.
Article IX, Section 2(1) of the 1987 Constitution provides:
‘The civil service embraces all branches, subdivisions,
instrumentalities and agencies of the Government, including
government owned and controlled corporations with original charters.’
(italics supplied)
From the aforequoted constitutional provision, it is clear that
respondent NHC is not within the scope of the civil service and is
therefore beyond the jurisdiction of this Board. Moreover, it is pertinent
to state that the 1987 Constitution was ratified and became effective
on February 2, 1987.
WHEREFORE, for lack of jurisdiction, the instant complaint is
hereby dismissed.”6
On April 28, 1989, petitioner filed with respondent NLRC a complaint
for illegal dismissal with preliminary mandatory injunction against
respondent NHC.7
___________________
3 Id., pp. 27-37.
4 Id., pp. 38-42.
5 Id., pp. 43-47.
6 Id., p. 52.
7 Id., pp. 53-58.
532
532 SUPREME COURT REPORTS ANNOTATED
Juco vs. National Labor Relations Commission

On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R.
Caday ruled that petitioner was illegally dismissed from his
employment by respondent as there was evidence in the record that
the criminal case against him was purely fabricated, prompting the trial
court to dismiss the charges against him. Hence, he concluded that
the dismissal was illegal as it was devoid of basis, legal or factual.
He further ruled that the complaint is not barred by prescription
considering that the period from which to reckon the reglementary
period of four years should be from the date of the receipt of the
decision of the Civil Service Commission promulgated on April 11,
1989. He also ratiocinated that:
“It appears x x x complainant filed the complaint for illegal dismissal
with the Civil Service Commission on January 6, 1989 and the same
was dismissed on April 11, 1989 after which on April 28, 1989, this
case was filed by the complainant. Prior to that, this case was ruled
upon by the Supreme Court on January 17, 1985 which enjoined the
complainant to go to the Civil Service Commission which in fact,
complainant did. Under the circumstances, there is merit on the
contention that the running of the reglementary period of four (4) years
was suspended with the filing of the complaint with the said
Commission. Verily, it was not the fault of the respondent for failing to
file the complaint as alleged by the respondent but due to, in the words
of the complainant, a ‘legal knot’ that has to be untangled.” 8
Thereafter, the Labor Arbiter rendered a decision, the dispositive
portion of which reads:
“Premises considered, judgment is hereby rendered declaring the
dismissal of the complainant as illegal and ordering the respondent to
immediately reinstate him to his former position without loss of
seniority rights with full back wages inclusive of allowance and to his
other benefits or equivalent computed from the time it is withheld from
him when he was dismissed on March 27, 1977, until actually
reinstated.”9
___________________
8 Id., p. 68.
9 Id., p. 69.
533
VOL. 277, AUGUST 18, 1997 533
ADMELEC Cases
190
Juco vs. National Labor Relations Commission
On June 1, 1990, respondent NHC filed its appeal before the NLRC
and on March 14, 1991, the NLRC promulgated a decision which
reversed the decision of Labor Arbiter Manuel R. Caday on the ground
of lack of jurisdiction.10
The primordial issue that confronts us is whether or not public
respondent committed grave abuse of discretion in holding that
petitioner is not governed by the Labor Code.
Under the laws then in force, employees of governmentowned
and/or controlled corporations were governed by the Civil Service Law
and not by the Labor Code. Hence,
Article 277 of the Labor Code (PD 442) then provided:
“The terms and conditions of employment of all government
employees, including employees of government-owned and controlled
corporations shall be governed by the Civil Service Law, rules and
regulations x x x.”
The 1973 Constitution, Article II-B, Section 1(1), on the other hand
provided:
“The Civil Service embraces every branch, agency, subdivision
and instrumentality of the government, including government-owned
or controlled corporations.”
Although we had earlier ruled in National Housing Corporation v.
Juco,11 that employees of government-owned and/or controlled
corporations, whether created by special law or formed as subsidiaries
under the general Corporation Law, are governed by the Civil Service
Law and not by the Labor Code, this ruling has been supplanted by
the 1987 Constitution. Thus, the said Constitution now provides:
“The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government owned or controlled corporations with original charter.”
(Article IX-B, Section 2[1])
___________________
10 Id., pp. 78-86.
11 134 SCRA 172 (1985).
534
534 SUPREME COURT REPORTS ANNOTATED

Juco vs. National Labor Relations Commission
In National Service Corporation (NASECO) v. National Labor
Relations Commission,12 we had the occasion to apply the present
Constitution in deciding whether or not the employees of NASECO are
covered by the Civil Service Law or the Labor Code notwithstanding
that the case arose at the time when the 1973 Constitution was still in
effect. We ruled that the NLRC has jurisdiction over the employees of
NASECO on the ground that it is the 1987 Constitution that governs
because it is the Constitution in place at the time of the decision.
Furthermore, we ruled that the new phrase “with original char-ter”
means that government-owned and controlled corporations refer to
corporations chartered by special law as distinguished from
corporations organized under the Corporation Code. Thus, NASECO
which had been organized under the general incorporation statute and
a subsidiary of the National Investment Development Corporation,
which in turn was a subsidiary of the Philippine National Bank, is
excluded from the purview of the Civil Service Commission.
We see no cogent reason to depart from the ruling in the aforesaid
case.
In the case at bench, the National Housing Corporation is a
government-owned corporation organized in 1959 in accordance with
Executive Order No. 399, otherwise known as the Uniform Charter of
Government Corporation, dated January 1, 1959. Its shares of stock
are and have been one hundred percent (100%) owned by the
Government from its incorporation under Act 1459, the former
corporation law. The government entities that own its shares of stock
are the Government Service Insurance System, the Social Security
System, the Development Bank of the Philippines, the National
Investment and Development Corporation and the People’s Homesite
and Housing Corporation.13 Considering the fact that the NHA had
been incorporated under Act 1459, the former corporation law, it is but
correct to say that it is a government-
____________________
12
168 SCRA 122 (1988).
13
National Housing Corporation vs. Juco, 134 SCRA 172 (1985).
535
VOL. 277, AUGUST 18, 1997 535
Juco vs. National Labor Relations Commission
ADMELEC Cases
191
owned or controlled corporation whose employees are subject to the
provisions of the Labor Code. This observation is reiterated in the
recent case of Trade Union of the Philippines and Allied Services
(TUPAS) v. National Housing Corporation,14 where we held that the
NHA is now within the jurisdiction of the Department of Labor and
Employment, it being a government-owned and/or controlled
corporation without an original charter. Furthermore, we also held that
the workers or employees of the NHC (now NHA) undoubtedly have
the right to form unions or employee’s organization and that there is
no impediment to the holding of a certification election among them as
they are covered by the Labor Code.
Thus, the NLRC erred in dismissing petitioner’s complaint for lack
of jurisdiction because the rule now is that the Civil Service covers
only government-owned or controlled corporations with original
charters.15 Having been incorporated under the Corporation Law, its
relations with its personnel are governed by the Labor Code and come
under the jurisdiction of the National Labor Relations Commission.
One final point. Petitioners have been tossed from one forum to
another for a simple illegal dismissal case. It is but apt that we put an
end to his dilemma in the interest of justice.
WHEREFORE, the decision of the NLRC in NLRC NCR-04-
02036089 dated March 14, 1991 is hereby REVERSED and the
Decision of the Labor Arbiter dated May 21, 1990 is REINSTATED.
SO ORDERED.
No.L-52091. March 29, 1982.*
TERESO V. MATURAN, petitioner-appellant, vs. Mayor SANTIAGO
MAGLANA of San Francisco, Southern Leyte, Vice-Mayor HONORIO
MAGONCIA, Municipal Councilors BONIFACIO AMARGA, JR.,
ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON
GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS,
VICTOR JATAYNA, SR., JUANCHO MORI, Chief of Police
FRANCISCO DUTERTE, Municipal Treasurer RAMON TOLIBAS and
the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN LEYTE,
respondents-appellees.
Municipal Corporations; Police Act; P.D. 12 dated October 3,
1972 and P.D. 12-A dated October 4, 1972 prescribing procedures for

trying cases against policemen did not transfer to the NAPOLCOM the
mayor’s power to dismiss or remove a policeman. Said transfer of
authority was made only on August 8, 1974 by virtue of P.D. 531.—
Presidential Decree No. 12 dated October 3, 1972 created the
Adjudication and Investigation Boards in the Police Commission to
review and dispose of all administrative cases of city and municipal
forces referred to the Commission. On October 4, 1972 Presidential
Decree 12-A was promulgated providing for the procedure to be
followed in case an administrative charge is filed against any member
of the local police agency or when a member of the police force is
accused in court of any felony or violation of law. Nowhere in the
provisions of said Presidential Decrees show that the power to dismiss
or remove has been transferred from the Mayor to the Police
Commission as contended by petitioner. It was only on August 8, 1974
when such power was removed from the Mayor pursuant to
Presidential Decree No. 531 integrating the municipal police forces in
all the municipalities of the province of Southern Leyte.
Same; Same; Case at bar not covered by P.D. 531.—It is clear
therefore that at the time petitioner’s resignation was approved by
respondent Mayor on January 19, 1973 the latter still had the power
to dismiss or remove the former.
Same; Same; Civil Service; Without the requisite qualifications a
police officer can only be given a temporary appointment which can
_______________
* SECOND DIVISION.
269
VOL. 113, MARCH 29, 1982 269
Maturan vs. Maglana
be terminated at anytime even without cause.—Such lack of a
civil service eligibility makes his appointment temporary and without a
definite term and is dependent entirely upon the pleasure of the
appointing power. Although indicated as provisional and approved
under Section 24 (c) of Republic Act 2260 the petitioner’s appointment
did not acquire the character of provisional appointment because of
his lack of appropriate civil service eligibility for the position of
municipal policeman. The Civil Service Commission cannot even
legally approve his appointment as provisional as this act would
ADMELEC Cases
192
constitute an unwarranted invasion of the discretion of the appointing
power. If the approval of his appointment as provisional under Section
24 (c) of Republic Act 2260 did not make it so, the fact remains that
his appointment was temporary which could be terminated without any
need to show that the termination was for cause.
Same; Same; Same; Subsequent acquisition of requisite
eligibility will not make a temporary appointment regular. A new
appointment is needed.—The fact that petitioner subsequently
obtained a testimonial eligibility on October 10, 1974 is of no moment.
At the time he received his appointment, as aforestated, petitioner had
no eligibility. As such what is required is a new appointment, not
merely reinstatement. But even then, he cannot compel the Mayor to
reappoint him for the power to appoint is in essence discretionary and
the appointing power enjoys sufficient discretion to select and appoint
employees on the basis of their fitness to perform the duties and
assume the responsibilities of the position filled.
APPEAL from the decision of the Court of First Instance of Leyte, Br.
III.
The facts are stated in the opinion of the Court.
DE CASTRO, J.:
This case was certified to this Court by the Court of Appeals pursuant
to its resolution dated October 30, 1979, the issue raised herein being
purely legal, which is the interpretation of Presidential Decree No. 12-
A and Letter of Instruction No. 14 in relation to the present case.
Petitioner was appointed as patrolman of San Francisco, Southern
Leyte on February 1, 1965 with a compensation of
270
270 SUPREME COURT REPORTS ANNOTATED
Maturan vs. Maglana
P540.00 per annum. On October 1, 1967 he was promoted to the rank
of police sergeant at P720.00 per annum. On October 8, 1968 and
July 1, 1969 petitioner’s salary was adjusted to P1,320.00 and
P1,800.00 per annum, respectively. All the aforesaid appointments of
petitioner were provisional. On July 1, 1970 his provisional
appointment was renewed. Likewise on July 1, 1971 his provisional

appointment was renewed with an increase in pay in the amount of
P2,640.00 per annum.
On September 15, 1972, respondent Mayor Santiago Maglana
suspended the petitioner from office because of two pending criminal
cases against him, namely Criminal Case No. 236, for falsification of
public document by making untruthful statement in the narration of
facts, and Criminal Case No. 312, for falsification of public document.
On October 2, 1972 respondent Vice-Mayor Honorio Magoncia, who
was then the Acting Mayor instructed petitioner together with Chief of
Police Francisco Duterte and Patrolman Asisclo Irong, to tender their
resignations pursuant to the Letter of Instruction No. 14 of the
President of the Philippines. Petitioner submitted his letter of
resignation on October 9, 1972. Petitioner’s resignation was approved
on January 19, 1973 and petitioner was accordingly informed thereof.
In a letter dated February 19, 1973 petitioner sought the
reconsideration of the approval of his resignation for being null and
void on the ground that Letter of Instruction No. 14 does not apply to
him.
In the meantime, Criminal Case Nos. 236 and 312 were dismissed
on January 31, 1973 and November 5, 1973, respectively.
In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then
Acting Chairman of the National Police Commission informed
petitioner that due to the dismissal of the aforesaid criminal cases, the
latter’s preventive suspension has been lifted and petitioner was
directed to report for duty to his Chief of Police. Petitioner reported for
duty on February 1, 1974 but Chief of Police Francisco Duterte refused
to accept the former in the police force.
271
VOL. 113, MARCH 29, 1982 271
Maturan vs. Maglana
Respondent Mayor sent a letter dated February 5, 1974 to the
Chairman of the National Police Commission requesting advice as to
whether the resignation tendered by petitioner pursuant to letter of
Instruction No. 14 is valid. In a reply letter dated August 13, 1974 the
Deputy Executive Commissioner stated that since petitioner resigned
from office on October 2, 1972, the lifting of his suspension as directed
in the National Police Commission’s letter dated January 12, 1974 is
no longer feasible, the same having been rendered moot and
academic; that said office had occasion to rule that resigna-tions
submitted by members of the police force in compliance with the
ADMELEC Cases
193
provisions of Letter of Instruction No. 14 are valid, said Instruction
being broad in scope to include both local and national officials.
Petitioner sought the intervention of the Governor of Southern
Leyte to no avail, hence, on May 21, 1974 petitioner filed a petition for
mandamus with claim for back salaries, traveling expense and
damages before the Court of First Instance of Southern Leyte, Branch
III.
It was alleged by petitioner that the refusal of respondents Mayor
and Chief of Police to reinstate him is a violation of paragraph 7 of
Presidential Decree No. 12-A which provides:
“7. Members of the police force who have been preventively
suspended shall, upon exoneration be entitled to immediate
reinstatement and payment of the entire salary they failed to receive
during the period of suspension;”
that the case of petitioner falls squarely within the purview of
Presidential Decree No. 12-A which was promulgated on October 4,
1972 and which governs policemen with pending cases; and that
Letter of Instruction No. 14 under whose provisions petitioner was
made to resign is not applicable to policemen.
In respondents’ answer dated July 3, 1974, they set up the defense
that petitioner has falsely entered in his duly sworn information sheet
that he is a high school graduate of the University of Manila during the
school year 1954-55, but in his Personal Data Sheet, CS Form No,
212. dated October 8, 1968 he feloniously alleged and/or entered
therein that he is a
272
272 SUPREME COURT REPORTS ANNOTATED
Maturan vs. Maglana
graduate of the Pana-on Academy in the school year 1950-51 when
in truth he was only a second year high school student; that petitioner,
who has voluntarily resigned, needs a new appointment and has to
meet the qualifications required by law among which, are, that he must
be at least a high school graduate and not over 33 years of age; that
petitioner falls short of these requirements; and that petitioner is
notoriously undesirable, publicly known to be of bad moral character
and oftentimes got drunk while on duty.
On February 4, 1975 respondent court issued a decision
dismissing the petition for lack of merit. The court a quo agreed with
the opinion of the National Police Commission that resignations

submitted by members of the police force in compliance with the
provisions of Letter of Instruction No. 14 are valid. Since petitioner has
been separated from the service, reinstatement is not the proper
remedy. The court also said that the evidence of conflicting entries on
petitioner’s two information sheets have not been denied or rebutted,
hence the preponderance of evidence is against the petitioner that he
is not a high school graduate, as he could not have graduated in two
high schools, one in the University of Manila during the school year
1954-55 and the other at the Pana-on Academy during the school year
1950-51. Lastly, the trial court ruled that since all petitioner’s
appointments were provisional, he can be removed at any time by the
appointing power, Mayor Maglana.
On appeal to the Court of Appeals, petitioner filed his brief on June
28, 1976. For failure of respondents to submit their brief, the case was
submitted for decision on November 16 1976.
Petitioner made the following assignment of errors:
“FIRST ERROR
THE LOWER COURT ERRED IN HOLDING THAT THE
RESIGNATION OF PETITIONER FROM THE POSITION OF POLICE
SERGEANT OF THE SAN FRANCISCO POLICE FORCE AND THE
ACCEPTANCE OF SUCH RESIGNATION BY RESPONDENT
MAYOR MAGLANA DURING THE PENDENCY OF A CRIMINAL
CASE FILED AGAINST PETITIONER
273
VOL. 113, MARCH 29, 1982 273
Maturan vs. Maglana
AND WHILE PETITIONER WAS UNDER PREVENTIVE
SUSPENSION ARE LEGAL AND VALID;
“SECOND ERROR
THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER
CAN BE REMOVED FROM THE OFFICE AT ANY TIME BY
RESPONDENT MAYOR MAGLANA;
“THIRD ERROR
ADMELEC Cases
194
THE LOWER COURT ERRED IN RULING THAT RESPONDENT
MAYOR COULD NOT BE COMPELLED TO REINSTATE AND/OR
REAPPOINT PETITIONER WHO POSSESSED CIVIL SERVICE
ELIGIBILITY AS PATROLMAN AND WITH POLICE TRAINING AT
THE POLCOM ACADEMY; and
“FOURTH ERROR
THE COURT BELOW ERRED IN DISMISSING THIS CASE AND
DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES
AND TRAVELING EXPENSES.”
Petitioner contends that under Presidential Decree No. 12-A
promulgated on October 4, 1972 the power to dismiss or remove a
member of the police force has been transferred from the Mayor to the
Police Commission. Hence, the acceptance of petitioner’s resignation
by respondent Mayor on January 19, 1973 is null and void because
the latter is no longer clothed with authority to dismiss or remove a
member of the police force on said date. Furthermore, petitioner
stresses that Letter of Instruction No. 14 under whose provisions he
was made to resign is not applicable to him as said Instruction covers
only officials and employees with pending cases excluding policemen.
Lastly, petitioner banks on his testimonial eligibility which he obtained
on October 10, 1974 to justify his reappointment.
Presidential Decree No. 12 dated October 3, 1972 created the
Adjudication and Investigation Boards in the Police Commission to
review and dispose of all administrative cases of city and municipal
forces referred to the Commission. On October 4, 1972 Presidential
Decree 12-A was promulgated providing for the procedure to be
followed in case an administrative charge is filed against any member
of the local police agency or when a member of the police force is
accused
274
274 SUPREME COURT REPORTS ANNOTATED
Maturan vs. Maglana
in court of any felony or violation of law. Nowhere in the provisions of
said Presidential Decrees show that the power to dismiss or remove
has been transferred from the Mayor to the Police Commission as
contended by petitioner. It was only on August 8, 1974 when such
power was removed from the Mayor pursuant to Presidential Decree

No. 531 integrating the municipal police forces in all the municipalities
of the province of Southern Leyte. Presidential Decree No.531 states:
“SEC. 6. Power of administrative control and supervision.—
Administrative control and supervision over the several police and fire
departments and jails composing each of the Integrated Police Forces
herein constituted shall, prior to the transfer provided for in
Section 7 hereof, remain with the offices, agencies and officials in
which said power is vested in accordance with existing laws. x x
x. Accordingly, administrative matters, such as appointment,
promotion, suspension, separation and other disciplinary action x x x
and such other matters pertaining to personnel administration which
are currently vested in and exercised by other officials pursuant to
existing laws, rules and regulations shall remain with said officials, x x
x.
“SEC. 7. Administrative control and supervision to be transferred
to the Philippine Constabulary.—After one year, but not later than two
years, from the effectivity of this Decree, the power and administrative
control and supervision provided for in Section 6 hereof shall be taken
over and exercised by the Philippine Constabulary. x x x.”
It is clear therefore that at the time petitioner’s resignation was
approved by respondent Mayor on January 19, 1973 the latter still had
the power to dismiss or remove the former.
Petitioner did not dispute that at the time he was appointed
member of the Police Force of San Francisco, Southern Leyte, he had
neither qualified in an appropriate examination for the position of
policeman nor was he possessed with any civil service eligibility for
any position in the government. Such lack of a civil service eligibility
makes his appointment temporary1 and without a definite term and is
dependent entirely upon the
_______________
1 Ramos vs. Romualdez, 32 SCRA 590.
275
VOL. 113, MARCH 29, 1982 275
Maturan vs. Maglana
pleasure of the appointing power.2 Although indicated as provisional
and approved under Section 24 (c)3 of Republic Act 2260 the
petitioner’s appointment did not acquire the character of provisional
ADMELEC Cases
195
appointment because of his lack of appropriate civil service eligibility
for the position of municipal policeman. The Civil Service Commission
cannot even legally approve his appointment as provisional as this act
would constitute an unwarranted invasion of the discretion of the
appointing power.4 If the approval of his appointment as provisional
under Section 24 (c) of Republic Act 2260 did not make it so, the fact
remains that his appointment was temporary which could be
terminated without any need to show that the termination was for
cause.5
The fact that petitioner subsequently obtained a testimonial
eligibility on October 10, 1974 is of no moment. At the time he received
his appointment, as aforestated, petitioner had no eligibility. As such
what is required is a new appointment, not merely reinstatement. But
even then, he cannot compel the Mayor to reappoint him for the power
to appoint is in essence discretionary and the appointing power enjoys
sufficient discretion to select and appoint employees on the basis of
their fitness to perform the duties and assume the responsibilities ot
the position filled.6
_______________
2 Mendiola vs. Tancinco, 52 SCRA 66; Cuñado vs. Gamus, 8
SCRA 77.
3 (c) Provisional Appointment.—A provisional appointment may be
issued upon prior authorization of the Commissioner in accordance
with the provisions of this Act and the rules and standards
promulgated in pursuance thereto to a person who has not qualified in
an appropriate examination but who otherwise meets the requirement
for appointment to a regular position in the competitive service,
whenever a vacancy occurs and the filling thereof is necessary in the
interest of the service and there is no appropriate register of eligibles
at the time of the appointment.
4 Re: Elvira C. Arcega, 89 SCRA 318; Santos vs. Chico, 25 SCRA
343.
5 Ata vs. Namocatcat, 47 SCRA 315; Hojilla vs. Mariño, 13 SCRA
825.
6 Reyes vs. Abeleda, 22 SCRA 825.
276
276 SUPREME COURT REPORTS ANNOTATED
Maturan vs. Maglana

WHEREFORE, the decision dated February 4, 1975 of the lower court
is hereby affirmed. No costs.
SO ORDERED.
No. L-23721. March 31, 1965.
R. MARINO CORPUS, petitioner-appellant, vs. MIGUEL
CUADERNO, SR., ET AL., respondents-appellants.
Civil Service; Removal of highly technical employees; Loss of
confidence not valid ground.—The Constitution distinguishes the
primarily confidential from the highly technical employees, and to the
latter the loss of confidence as a ground for removal is not applicable.
Damages; Attorney’s Fees; Agreement as to attorney’s fees
cannot hind adverse party.—The agreement between a client and his
lawyer as to attorney’s fees cannot bind the other party who was a
stranger to the fee contract. While the Civil Code allows a party to
recover reasonable counsel fees by way of damages, such fees must
lie primarily in the discretion of the trial court.
APPEALS from a decision of the Court of First Instance of Manila.
The facts are stated in the opinion of the Court.
Juan T. David and Rosauro Alvarez for petitioner-appellant.
Nat. M. Balboa, G. B. Guevarra, F. E. Evangelista & C. B.
Angeles for respondents-appellants.
REYES, J.B.L., J.:
Not satisfied with the decision of the Court of First Instance of Manila,
in its Civil Case No. 41226, both the above-named petitioner and
respondents interposed their respective appeals to the Court of
Appeals. The Court of Appeals, however, certified the said appeals to
this Court to avoid splitting them, it appearing that, while the Court of
Appeals has jurisdiction over the respondents’ appeal,
592
592 SUPREME COURT REPORTS ANNOTATED
Corpus vs. Cuaderno, Sr.
ADMELEC Cases
196
the amount in controversy in the petitioner’s appeal (P574,-000.00) in
damages and attorneys’ fees, is beyond the jurisdiction of the said
appellate court.
The essential facts are as follows: On 7 March 1958, the petitioner-
appellant, R. Marino Corpus, then holding the position of “Special
Assistant to the Governor, In Charge of the Export Department” of the
Central Bank, a position declared by the President of the Philippines
on 24 January 1957 as highly technical in nature, and admitted as
such by both the present litigants, was administratively charged by
several co-employees in the export department with dishonesty,
incompetence, neglect of duty, and/or abuse of authority, oppression,
conduct unbecoming of a public official, and of violation of the internal
regulations of the Central Bank.
On 18 March 1958, the Monetary Board suspended the petitioner
from office effective on said date and created a three-man
investigating committee composed of Atty. Guillermo de Jesus,
chairman: and Atty. Apolinar Tolentino, Assistant Fiscal of the City of
Manila, and Professor Gerardo Florendo, senior attorney of the
Central Bank, members. In its final report dated 5 May 1959, the
investigating committee, “after most extensive hearings in which both
complainants and respondent were afforded all the opportunity to
submit their evidence, and after a most exhaustive and conscientious
study of the records and evidence submitted in the case,” made the
following conclusion and recommendation:
“(1) In view of the foregoing, the Committee finds that there is no basis
upon which to recommend disciplinary action against respondent,
and, therefore, respectfully recommends that he be immediately
reinstated.”
Nevertheless, on 20 July 1959, the Monetary Board approved the
following resolution:
“After an exhaustive and mature deliberation on the report of the
aforesaid fact-finding committee in conjunction with the entire records
of the case and representations of both complainants and respondent,
through their respective counsel; and, further, after a thorough review
of the service record of the respondent, particularly the various cases
presented against
593
VOL. 13, MARCH 31, 1965 593

Corpus vs. Cuaderno, Sr.
him, object of Monetary Board Res. No. 1527 dated August 30, 1955,
which all involves fitness, discipline, etc. of respondent; and moreover,
upon formal statement of the Governor that he has lost confidence in
the respondent as Special Assistant to the Governor and In-Charge of
the Export Department (such position being primarily confidential and
highly technical in nature), the Monetary Board finds, that the
continuance of the respondent in the service of the Central Bank would
be prejudicial to the best interests of the Central Bank and, therefore,
in accordance with the provisions of Section 14 of the Bank Charter,
considers the respondent R. Marino Corpus, resigned as of the date
of his suspension.”
Corpus moved for the reconsideration of the above resolution, but the
Board denied it, after which he filed an action for certiorari, mandamus,
quo warranto, and damages, with preliminary injunction, with the Court
of First Instance of Manila. The said court, after trial, rendered
judgment declaring the Board resolution null and void, and ordering,
among others, the reinstatement of the herein petitioner and awarding
him P5,000.00 as attorney’s fees. As aforesaid, both the petitioner and
the respondents appealed the judgment.
Per its resolution, the premises of the board in dismissing the
petitioner are: (1) its deliberation of the report of the committee, the
records of the case and the representations of the parties; (2) the
service record of the petitioner, particularly the various cases against
him in 1955; and (3) loss of confidence by the Governor, with the
implied concurrence of the Monetary Board. No specific findings were
made; it is, therefore, evident that the petitioner was removed on the
third ground, since he was neither removed for guilt of the charges
against him in the administrative complaint nor on account of his
previous cases in 1955 because he had suffered the corresponding
penalty imposed upon him on the counts for which he was then found
guilty, and because he was thereafter promoted in salary and to the
position in question by the Monetary Board on recommendation of the
Governor.
The appeal of the Central Bank and its Monetary Board is planted
on the proposition that officers holding highly technical positions may
be removed at any time for lack of confidence by the appointing power,
and that such power
594
ADMELEC Cases
197
594 SUPREME COURT REPORTS ANNOTATED
Corpus vs. Cuaderno, Sr.
of removal is implicit in section 1, Art. XII, of the Constitution :
“Section 1. A Civil Service embracing all branches and subdivisions of
the Government shall be provided by law. Appointments in the Civil
Service, except as to those which are policy-determining, primarily
confidential or highly technical in nature, shall be made only according
to merit and fitness, to be determined as far as practicable by
competitive examination.”
It is argued that for the three classes of position referred to in the
constitutional disposition (policy-determining, primarily confidential
and highly technical), lack of confidence of the one making the
appointment constitutes sufficient and legitimate cause of removal.
We find the appeal of the Central Bank authorities to ba clearly
untenable.
In the first place, the loss of confidence ground, on which the
dismissal is sought to be predicated, is a clear and evident
afterthought resorted to when the charges, subject matter of the
investigation, were not proved or substantiated. The Monetary Board
nowhere stated anything in the record which the committee failed to
consider in recommending exoneration from the charges; it nowhere
pointed to any substantiation of the charges; it, therefore, relied only
on the statement of the loss of confidence made by Governor
Cuaderno. We find in the particular set of facts herein that the alleged
loss of confidence is clearly a pretext to cure the inability of
substantiating the charges upon which the investigation had
proceeded.
The court, therefore, cannot rely on the so-called “loss of
confidence” as a reason for dismissal. And inasmuch as the charges
against petitioner were unsubstantiated, that leaves no other
alternative but to follow the mandate that—
“No public officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law.” (Sec. 4, Art. XII,
Constitution of the Phil.)
Since in the interest of the service reasonable protection should be
afforded civil servants in positions that are by
595
VOL. 13, MARCH 31, 1965 595

Corpus vs. Cuaderno, Sr.
their nature important, such as those that are “highly technical,” the
Constitutional safeguard requiring removal or suspension to be “for
cause as provided by law” at least demands that their dismissal for
alleged “loss of confidence” if at all allowed, be attended with prudence
and deliberation adequate to show that said ground exists.
In the second place, the argument for the Monetary Board ignores
the self-evident fact that the constitutional provisions merely constitute
the policy-determining, primarily confidential, and highly technical
positions as exceptions to the rule requiring appointments in the Civil
Service to be made on the basis of merit and fitness as determined
from competitive examinations (sec. 1, supra) (Jover vs. Borra, 49
O.G. [No. 7] 2755), but that the Constitution does not exempt such
positions from the operation of the principle emphatically and
categorically enunciated in section 4 of Article XII, that—
“No officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law.”
and which recognizes no exception. The absolute rule thus
propounded is repeated almost verbatim in Sec. 182 of the Central
Bank Charter (Rep. Act 265) that provides in equally absolute terms
that—
“No officer or employee of the Central Bank subject to the Civil Service
Law or regulations shall be removed or suspended except for cause
as provided by law.”
It is well to recall here that the Civil Service Law in force (Rep. Act No.
2260) divides positions into three categories: competitive or classified;
non-competitive or unclassified service; and exempt service, the last
being expressly excluded from the scope of the Civil Service Act (sec.
3, R.A. 2260). In view of sections 3 and 5 of the same law, providing
that—
“SEC 3. Positions embraced in the Civil Service.—The Philippine Civil
Service shall embrace all branches, subdivisions and instrumentalities
of the Government, including government-owned or controlled
corporations, x x x.”
“SEC.5.The non-competitive service.—The non-competitive or
unclassified service shall be composed of positions ex-
596
ADMELEC Cases
198
596 SUPREME COURT REPORTS ANNOTATED
Corpus vs. Cuaderno, Sr.
pressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential or
highly technical in nature.” (R.A. 2260)
it is indisputable that the plaintiff Corpus is protected by the Civil
Service law and regulations as a member of the non-competitive or
unclassified service, and that his removal or suspension must be for
cause recognized by law (Unabia vs. Mayor, 53 Off. Gaz. 132; Arcel
vs. Osmeña, L-14956, Feb. 27, 1961; Garcia vs. Executive
Secretary, L-l9748, September 13, 1962).
The tenure of officials holding primarily confidential positions (such as
private sectaries of public functionaries) ends upon loss of confidence,
because their term of office lasts only as long as confidence in them
endures; and thus their cessation involves no removal. But the
situation is different for those holding highly technical posts, requiring
special skills and qualifications. The Constitution clearly distinguished
the primarily confidential from the highly technical, and to apply the
loss of con fidence rule to the latter incumbents is to ignore and erase
the differentiation expressly made by our fundamental charter.
Moreover, it is illogical that while an ordinary technician, say a clerk,
stenographer, mechanic, or engineer, enjoys security of tenure and
may not be removed at pleasure, a highly technical officer, such as an
economist or a scientist of avowed attainments and reputation, should
be denied security and be removable at any time, without right to a
hearing or chance to defend himself. No technical men worthy of the
name would be willing to accept work under such conditions.
Ultimately, the rule advocated by the Bank would demand that highly
technical positions be filled by persons who must labor always with an
eye cocked at the humor to their superiors. It would signify that the so-
called highly technical positions will have to be filled by incompetents
and yes-men, who must rely not on their own qualifications and skill
but on their ability to curry favor with the powerful. The entire objective
of the Constitution in establishing and dignifying the Civil Service on
the basis of merit would be thus negated.
597
VOL. 13, MARCH 31, 1965 597
Corpus vs. Cuaderno, Sr.

Of course, a position may be declared both highly technical and
confidential, as the supreme interests of the state may require. But the
position of plaintiff-appellant Corpus is not of this category.
The decision in De los Santos vs. Mallare, 87 Phil. 289, relied upon
by the appellant Bank, is not applicable since said case involved the
office of city engineer that the court expressly found to be “neither
primarily confidential, policy-determining nor highly technical” (at p.
297, in fine).
Turning now to the appeal of plaintiff R. Marino Corpus. The latter
complains first against the allowance of only P5,000.00 attorney’s fees
by the court below, stressing that the stipulation of facts between the
parties clearly recites that Corpus had agreed to pay his attorney
P20,000.00 as fees. It is to be noted, however, that the agreement
between client and lawyer cannot bind the other party who was a
stranger to the fee contract. While the Civil Code allows a party to
recover reasonable counsel fees by way of damages, such fees must
lie primarily in the discretion of the trial court, and no abuse of that
discretion is here shown. The same thing can be said as to plaintiff’s
recovery of moral damages; the trial court was evidently not satisfied
that such damages were adequately proved and on the record, we do
not believe we would be warranted in interfering with its judgment.
The claim for exemplary damages must presuppose the existence
of the circumstances enumerated in Articles 2231 and 2232 of the Civil
Code. That is essentially a question of fact that lies within the province
of the court a quo, and we do not believe that in opining that the
position of Corpus was one dependent on confidence, the defendant
Monetary Board necessarily acted with vindictiveness or wantonness,
and not in the exercise of honest judgment.
WHEREFORE, the decision appealed from is hereby affirmed
without special pronouncement as to costs.
No. L-29661. May 13, 1969.
BASILIO M. PINEDA, as Deputy Chief of Police of Pasay City,
petitioner, vs. JOVITO O. CLAUDIO, as Mayor of Pasay City;
FRANCISCO A. VILLA and ABELARDO SUBIDO, as Commissioner
of Civil Service, respondents.
ADMELEC Cases
199
Civil Service Law; Recruitment and selection of
employees; Seniority and next-in-rank rule; Applies only to cases of
promotion.—The principle of seniority and the next-in-rank rule
embodied in Section 23 of the Civil Service Law, with its corollary
requirement to set forth the "special reason or reasons" in cases the
officer next in rank is not appointed to the vacant position, applies only
to cases of promotion. It does not apply where the appointing power
chooses to fill the vacancy not by promotion but by transfer,
reinstatement, reemployment or certification, not necessarily in that
order.
Same; Same; Same; Same; Reason.—The reason is that when
a person who is a junior jumps over his senior, the ranking is disturbed
and the person next in rank is actually bypassed, and so it is
reasonable to require the appointing power to give his "special reason
or reasons" for preferring his appointee to the officer next in rank. But
where the vacancy is filled not by promotion but by transfer, the person
next in rank is not really bypassed, because the person appointed is
one who holds a position of equivalent rank as the vacant position.
The same reason applies when the person chosen to fill the vacancy
is merely being reinstated to, or reemployed in, the position which he
formerly held. For it is obvious that in this case such person is the
senior of the one who at the moment is next in rank. As for the person
chosen by certification, it may be said that he has never been rated
before and so he can be said neither to be below nor above the
ranking employee in the hierarchy.
Same; Same; Fitting of vacancy need not be by promotion,
transfer, reinstatement or reemployment, and certification, in that
order.—Section 23 of the Civil Service Act does not peremptorily
require that vacancies must be filled by promotion, transfer,
reinstatement, reemployment or certification, in that order. What it
does purport to say is that as far as practicable the person next in rank
should be promoted, otherwise the vacancy may be filled by transfer,
reinstatement, reemployment or certification, as the appointing power
sees, it, provided the appointee is certified to be qualified and eligible.
Same; Same; Filling of vacancy in local police agency: Section
23 of Civil Service Act construed in relation to Section 4 of
Decentralization Act and Section 17 of the Police Act of 1966.—
Section 23 of Civil Service Act construed in relation to
35

VOL. 28, MAY 13, 1969 35
Pineda vs. Claudio
Section 4 of Decentralization Act and Section 17 of the Police
Act of 1966 does not require the mayor to promote the officer next in
rank. It merely says that as far as practicable the person next in rank
should be promoted, otherwise the vacancy may be filled by transfer,
reinstatement, reemployment or certification, as the appointing power
sees fit, provided the appointee is certified to be qualified and
eligible—which is the basic requirement of the Civil Service Act, as
well as of the Police Act and the Decentralization Law.
Same; Same; Certification of five next ranking eligible and
qualified persons by Commissioner of Civil Service; Section 4 of
Decentralization Act of 1967 construed.—Reading Section 4 of
Decentralization Act of 1967 in the light of the Civil Service Act, ,the
meaning emerges that in 'each class the Commissioner must certify,
whenever there are available, five ranking, qualified and eligible
persons in each list as follows: promotion list, transfer list,
reinstatement/reemployment list, and list of appropriate eligibles.
FERNANDO, J., concurring
Constitutional law; Civil service; Construction must favor public
service.—Under the Constitution, except in the indisputable case of
security of tenure specifically safeguarded, the construction of
whatever statute may be passed or an executive action taken should
be in favor of according preference to the demands of public service.
Same; Same; Purpose.—The provision on the Civil Service in
the Constitution, like other provisions, was inserted primarily to assure
a government, both efficient and adequate to fulfill the ends for which
it has been established. It is in that sense that a public office is
considered a public service.
Same; Local governments; Recognition of right of self-
government.—The recognition however limited in our Constitution of
the right of self-government must be broadened not restricted.
DIZON, J., dissenting: ,
Civil Service Law; Recruitment and selection of
employees; Filling of vacancy must be by promotion.—A vacant
ADMELEC Cases
200
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. And only where, for
special reason or reasons of which the affected officer or employee
will be notified, this mode of recruitment or selection cannot be
observed, that the position may be filled either by transfer, or
reemployment, or by getting from the certified list of appropriate
eligibles, in that order,
Same; Same; Same; Reason.—lf the rule were otherwise, the
appointing power would have an unnecessary opportunity to
36
36 SUPREME COURT REPORTS
ANNOTATED
Pineda vs. Claudio
act capriciously and thus thwart the natural and reasonable
expectation of the officer next in rank to any vacant position, to be
promoted to it.
ZALDIVAR, J., dissenting:
Same; Same; Same; Reason.—This is more conducive to the
maintenance of the high morale of the officers and employees in the
civil service.
ORIGINAL PETITION in the Supreme Court. Mandamus.
The facts are stated in the opinion of the Court.
Jose Zafra and R. Aquino for petitioner.
Federico Agrava for respondent Jovito O. Claudio, et al.
Solicitor General for respondent Abelardo Subido.
CASTRO, J.:
This is a petition for mandamus to compel the respondent Jovito O.
Claudio, mayor of Pasay City, to appoint the petitioner Basilio M.
Pineda chief of police of the city, on the theory that, as the incumbent
deputy chief of police and therefore the officer next in rank, the
petitioner is legally entitled to be promoted to the said position.

Upon the death of Col. Mariano Tumaliuan on August 28, 1968,
the position of chief of police of Pasay City became vacant. To fill the
vacancy, Claudio appointed the respondent Francisco Villa, a state
prosecutor in the Department of Justice, but the respondent
Commissioner of Civil Service Abelardo Subido held the appointment
in abeyance until other persons who, in Subido's opinion, had
preferential right to appointment have been considered. One of these
persons is Pineda who, as deputy chief of police, "is a person next in
rank entitled to promotional preference for the position of Chief of
Police x x x before others may be considered (for) transfer,
reinstatement, reemployment or certification."
Subido defined his stand in his letter to Mayor Claudio of
September 17, 1968, the text of which reads:
37
VOL. 28, MAY 13, 1969 37
Pineda vs. Claudio
"S i r :
"This refers to the proposed appointment of Mr. FRANCISCO A.
VILLA, a Bar (RA 1080) and second grade eligible, as Chief of Police
in the Police Department of Pasay City at P12,000 per annum effective
September 1, 1968, vice Mariano Tumaliuan, deceased.
"Section 4 of Republic Act No. 5185 (Decentralization Act of 1967)
in its paragraphs 4 and 5 provides:
" 'In cases of vacancies in the offices of heads and assistant heads of
local offices, the governor or mayor shall fill them by appointment from
a list of the five next ranking eligible and qualified persons as certified
by the Civil Service Commission: Provided, That these five persons
shall have stated beforehand that they will assume the position, if
appointed. (paragraph 4)
" 'The ranking shall be based on such factors as class of province,
city or municipality where the vacancy occurs, seniority, efficiency
rating, extraordinary qualifications, and other supplementary criteria
as may be prescribed by the Civil Service Commission.'
"Paragraph 3, Section 23 of Rep. Act 2260, also provides:
" 'Whenever a vacancy occurs in any competitive or classified position
in the government or in any governmentowned or controlled
ADMELEC Cases
201
corporation or entity, the officer or employee next in rank who is
competent and qualified to hold the position and who possesses an
appropriate civil service eligibility shall be promoted
thereto: Provided, That should there be two or more persons under
equal circumstances, seniority shall be given preference. And,
provided, however, That should there be any special reason or
reasons why such officer or employee should not be promoted, such
special reason or reasons shall be stated in writing by the appointing
official and the officer or employee concerned shall be informed
thereof and be given an opportunity to be heard by the Commissioner
of Civil Service, whose decision in such cases shall be final. If the
vacancy is not filled by promotion as provided herein, then the same
shall be filled by transfer of present employees in the government
service, by reinstatement, by reemployment of persons separated
through reduction in force, or by certification from appropriate register
of eligibles in accordance with rules promulgated in pursuance of this
Act.'
"Interpreting this latter provision in the case of Millares vs. Subido,
et al., G.R. No. L-23281, August 10, 1967, the Honorable Supreme
Court ruled: 'In other words, a vacant position (be it new or created by
the cessation of an incumbent in
38
38 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
office) shall be filled by promotion of the ranking officer or employee,
who is competent and qualified to hold the same. And only where, for
special reason or reasons of which the affected officer or employee
will be notified, this mode of recruitment or selection cannot be
observed, that the position may be filled either by transfer, or
reemployment, or by getting from the certified list of appropriate
eligibles, in that order' (Italics by the Court).
"The above-quoted provisions and Supreme Court ruling spell out
categorically the priorities in the modes of filling a vacancy in the
competitive service, to wit: first priority is by promotion of next in rank
employees from within the agency, second is by transfer of employees
in other agencies, third is by reinstatement and reemployment of
former employees, and last by certification from the appropriate
eligible lists.

"Conformably with these provisions and ruling, this Office
announced in the Manila Times of September 5, 1968, the mode of
filling vacancies for Chief of Police for Manila and Pasay City and the
qualifications of those who may apply, A Xerox copy of the clippings
of the Manila Times is hereto attached as Annex 'A', The said
announcement was also the subject of a news item published in the
same issue of the Manila Times, a copy attached as Annex
"As of this writing, the following persons, in the order of priority, are
hereby certified for the said position:
"A. Promotion (next-in-rank)
1. Basilio Pineda—formerly chief of police of
the Pasay City Police Department, a chief
of police eligible, and presently Deputy
Chief of Police of the Pasay City Police
Department.
"B. Transfer
1. Major Jesus Dizon—a Xerox copy of his
curriculum vitae is attached.
2. Albino S. Mondares—a Xerox copy of his
curriculum vitae is attached.
"C. Reinstatement/Reemployment
1. Jaime Valencia—formerly chief of police of
Pasay City Police Department whose
appointment was bypassed. His information
sheet is on file in that Office.
"D. Certification
1. Roland C. Siquijor—(Chief of Police
eligible.)
2. Francisco Villa—the proposed appointee.
3. Abelardo Tesoro—(Chief of Police eligible.)
39
VOL. 28, MAY 13, 1969 39
Pineda vs. Claudio
ADMELEC Cases
202
"It is significant to note in this connection that Mr. Basilio Pineda, who
is presently the Deputy Chief of Police of Pasay City, a Chief of Police
eligible and formerly the Chief of Police of Pasay City, is a person next
in rank entitled to promotional preference for the position of Chief of
Police. Under the law and Supreme Court ruling' above cited, Mr.
Pineda should be considered for promotion before others may be
considered by transfer, reinstatement, reemployment, or certification.
"As a matter of fact this Office in a letter dated August 5, 1968, and
reiterated in a 1st indorsement dated August 28, 1968, has previously
directed that Office to consider Mr. Pineda for designation as the
Acting Chief of Police in place of Mr. Francisco Grape, who does not
possess the appropriate eligibility and who is holding on to the position
of Deputy Chief of Police by virtue of a preliminary writ of injunction
issued by the CFI of Rizal. Information is requested as to the reason
why the directive of this Office contained in the said communication
has not been complied with.
"If Mr. Pineda may not be considered, the special reason or
reasons therefor must be stated in writing and submitted to this Office.
The same procedure should also be followed if Messrs. Dizon,
Mondares. and Valencia may not be considered for the said position
before Messrs. Siquijor, Tesoro and Villa may be considered for
appointment thereto.
"Premises considered, the processing of the proposed
appointment of Mr. Francisco Villa is held in abeyance until after the
persons with appointment preference have been duly considered by
that Office, and for special reason or reasons, could not be appointed
Chief of Police. In the meantime, the directive of this Office contained
in the letter dated August 5, 1968 should be complied with by that
Office."
In reply, Claudio for the first time disclosed his reasons for not
appointing Pineda to the vacant position. In his letter to Subido on
September 20, he explained:
"As a native of Pasay and having been an official hereof for the past
eight (8) years I am fully cognizant of the performance in office of
Messrs. Basilio Pineda, Jaime Valencia, Roland C. Siquijor and
Abelardo Tesoro and they cannot boast of any improvement they have
introduced to lift the sagging inefficiency of the local police
organization. The actual members of untrained and undisciplined men
still persist."

On September 30, 1968 the Secretary of Justice, to whom the matter
had earlier been referred, submitted a memorandum to the President
substantially to the effect that section
40
40 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
23 of the Civil Service Act of 1959 does not apply in the case of the
chief of a police agency whose appointment, it was contended, is
governed by the Police Act of 1966. Pertinent excerpts from the said
memorandum are hereunder quoted:
1. "3.Under the Police Act, x x x it is specifically provided (in
section 17) that in case of permanent vacancy caused by
death, etc., in a local police agency, 'the mayor shall fill such
vacancy as provided in this Act' and not in accordance with
the Civil Service Act and rules and regulations. Congress is
presumed to be aware of certain rules or limitations in the
general civil service law which operate to restrict or curtail
the discretion of the appointing power; hence, this special
rule which makes it indubitable that the general rules
governing appointment in the civil service, are inapplicable
to appointments in a police service, except of course, where
it so expressly provided therein or incorporated in the
implementing rules and regulations.
2. "4.As regards the chief of police, there is even another
provision which serves to underscore this special rule. I refer
to the last paragraph of Section 10, supra, which states that
in case there is no civil service eligible available for the
position of chief of police, 'provisional appointment may be
made in accordance with the Civil Service Law and Rules.' It
is implicit in this provision that in other cases, especially
those covered by section 17, the appointment shall be
permanent in nature and 'as provided for in this (Police) Act.'
3. "5.x x x [A]side from the provision (of section 11) specifically
forbidding the filling of any position by permanent
appointment unless the appointee has the appropriate
eligibility, there appears to be no other statutory limitation on
the City Mayor's discretion in the selection of the chief of
police so long as the one chosen possesses the minimum
ADMELEC Cases
203
qualifications prescribed by the Act. The Police Manual has
included the civil service rule on promotion which gives the
next-in-rank, among others, preference in the filling of the
vacant position. However, upon close examination of Rule
VI, it is readily seen that the promotional rules therein set
forth find application only to the filling of positions in the
police service below that of chief of police he being the one
charged with the duty and responsibility of screening and
recommending f or promotion the deserving members of the
police agency (sections 2, 3, 4, 5 and 6). Of course, in every
case the next-in-rank or deputy chief, by reason of his
position, would surely be among the first to be considered by
the City Mayor in the selection of the chief of police, if
qualified and competent; but he cannot claim any
preferential right over
41
VOL. 28, MAY 13, 1969 41
Pineda, vs. Claudio
1. others in the list of eligibles based on the aforementioned rule
found in the Civil Service Act.
2. "6.This was the legal situation at the time of the enactment of
the Decentralization Law (RA 5185, approved on September
12, 1967). I am unable to see any substantial change
resulting from the insertion in section 4 thereof,
quoted supra, of the provision that the heads of offices and
their respective assistants, whose salaries are paid out of
city funds, shall be appointed by the City Mayor 'subject to
the civil service law, rules and regulations/ Obviously, this
clause refers to office heads whose appointments, unlike
that of the chief of police, are not covered by any special law
or provision and should therefore be appointed in
accordance with the general civil service law and rules. x x x
What is more important and far reaching in Section 4 is the
provision which categorically states that the offices of the
aforementioned heads and assistant heads 'shall be filled by
appointment from a list of five next ranking eligible and
qualified persons as certified by the Civil Service

Commissioner,' which shall be based on such factors as
class of the city where the vacancy occurs. seniority,
efficiency rating, extraordinary qualifications, etc. The import
of this special provision is that the filling of the positions of
the office heads and assistant heads is to be governed by
this special rule, unencumbered by the civil service rule on
the preferential right of the next-in-rank and others seeking
transfer, reinstatement or reemployment in order to give the
City Mayor a wide latitude in the choice of key officials. x x
x"
Answering the memorandum of the Secretary of Justice, Subido
contended in his own memorandum to the President of October 14,
1968 that section 23 of the Civil Service Act does not conflict with the
provisions of the Police Act of 1966. "In fact, it was
incorporated verbatim in the Police Manual. But what is important is
that the filling of positions in the police service including that of Chief
of Police in accordance with the procedure outlined in paragraph 3 of
Sec. 23 of Republic Act 2260 in relation to Sec. 4 of the
Decentralization Act (Rep. Act 5185) would strengthen the police
service. Vice versa, leaving the matter of promotion solely to the
discretion of the Mayor without regard to the order of priorities
contained in the Civil Service Law, would result in its demoralization."
Nor did he think the mayor's reasons for bypassing Pineda to be
valid, considering that just a few months before the mayor had
appointed Pineda deputy chief of police. "If
42
42 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
Mr. Pineda can qualify as Deputy Chief of Police in the Mayor's
estimation (and thus under Sec. 17 of the Police Act, he shall
automatically assume the office of Chief of Police in case a temporary
vacancy occurs in said office), how can Mayor Claudio now claim in
all sincerity that Mr. Pineda is not qualified to be chief of Police?"
Respondents Claudio and Villa point out, on the other hand, that
Subido should be held in estoppel on the basis of his approval of the
very appointment of Pineda as deputy chief of police of Pasay City,
where no list of those with "preferential rights" and no inquiry as to the
mayor's reasons for not appointing the police officer next-in-rank in the
ADMELEC Cases
204
Pasay City police department was made; and that advising the mayor
that "the filling of the vacancy for Deputy Chief of Police is governed
by Section 4, R.A. 5185," Subido merely issued a certification,
containing the names of "five ranking qualified and eligible persons"
including Pineda, and evidently did not consider as applicable the
provisions on preferences of Section 23 of the Civil Service Act nor
the ruling in Millares v. Subido1 now invoked by him.
Subido admitted in his reply that Memorandum Circular No, 1, S.
1968, dated January 12, 1968, under which he issued "priorities,"
"overlooked the Millares case and relied solely on the provision of Sec.
4, Rep. Act 5185," but averred that later, after having become
convinced that the Millares ruling was applicable to the f illing of
vacancies of heads and assistant heads of local offices under the
Decentralization Law, he issued Memorandum Circular No. 21, S.
1968, dated September 5, 1968, providing for such procedure of
priorities, which was the procedure in force as of the date the
appointment of Villa was received in his office.
As no solution to the impasse was in sight, Pineda filed the present
action, contending that, under section 23 of the Civil Service Act, as
interpreted in Millares, in relation to Section 4 of the Decentralization
Act, it is the duty of the mayor to promote him as the ranking employee,
and that only if for some "special reasons" he cannot be promoted
____________
1 L-23281, August 10, 1967, 20 SCRA 954.
43
VOL. 28, MAY 13, 1969 43
Pineda vs. Claudio
may others be considered for transfer, reemployment or certification,
"in that order".
On the other hand, Claudio's position is that what controls is not
section 23 of the Civil Service Act but section 8 of the Police Act of
1966, which states that a chief of police may be appointed "from the
list of eligibles certified by the Civil Service Commissioner". As Villa is
one of those certified, Claudio concludes that his appointment as chief
of police is in order.
Section 17 of the Police Act of 1966 expressly provides that "In
case of vacancy caused by death, retirement, resignation, suspension
or removal in a local police agency, the mayor shall fill such vacancy

as provided for in this Act," obviously referring to Section 8 thereof
which states that "appointment to a local police agency shall be made
by a mayor from the list of eligibles certified by the Civil Service
Commission." The validity of Villa's appointment, because he is one
of those mentioned in the certified list of eligibles, as required by the
Police Act of 1966, could be here and now sustained, without need of
further discussion, were it not for the subsequent enactment in 1967
of the Decentralization Act, particularly, Section 4 thereof, which
provides:
"Appointment of Heads, Assistant Heads of Local Offices and Their
Subordinates.—The Provincial Assessor, Provincial Agriculturist and
other heads of offices entirely paid out of provincial funds and their
respective assistants shall, subject to civil service law, rules and
regulations, be appointed by the Provincial Governor: Provided,
however, That this section shall not apply to Judges, Auditors, Fiscals,
Division Superintendents of Schools, Supervisors, Principals,
Provincial Treasurers, Provincial Health Officers and District
Engineers.
"The City Assessor, City Agriculturist, City Chief of Police and City
Chief of Fire Department and other heads of offices entirely paid out
of city funds and their respective assistants or deputies shall, subject
to civil service law, rules and regulations, be appointed by the City
Mayor: Provided, however, That this section shall not apply to Judges,
Auditors, Fiscals, City Superintendents of Schools, Supervisors,
Principals, City Treasurers, City Health Officers and City Engineers.
x x x x x employee and he has not passed the Civil Service
"In case of vacancies in the offices of heads and assistant
44
44 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
heads of local offices, the governor or mayor shall fill them by
appointing from a list of the five next ranking eligible and qualified
persons as certified by the Civil Service
Commissioner: Provided, That these five persons shall have stated
beforehand that they will assume the position if appointed.
"The ranking shall be based on such factors as class of province,
city or municipality where the vacancy occurs, seniority, efficiency
rating, extraordinary qualifications and other supplementary criteria as
may be prescribed by the Civil Service Commission." (R.A. 5185)
ADMELEC Cases
205
The pertinent provisions thereof to the effect that the heads of offices
entirely paid out of city funds, including the chiefs of police, and their
assistants or deputies, shall, "subject to civil service law, rules and
regulations, be appointed by the City Mayor" and that the mayor "shall
fill them by appointment from a list of the five next ranking eligible and
qualified persons as certified by the Civil Service Commissioner,"
throw us right back to the basic Civil Service Act. It behooves us,
specifically, to determine the scope and meaning of the provisions of
Section 23 which deal with the "Recruitment and Selection of
Employees."
The contending parties have thus thrust upon this Court the basic
issue of the proper application and scope of Section 23 of the Civil
Service Act in relation to the provisions of the Decentralization Act of
1967 and the Police Act of 1966.
The petitioner states the issues as follows:
1. "(1)Is it mandatory and ministerial upon the Mayor of Pasay
City to promote to the vacant position of Chief of Police, a
competitive position, petitioner Pineda, the incumbent
Deputy Chief of Police, who is the competent and qualified
next-in-rank employee with the appropriate civil service
eligibility?
2. "(2)Is respondent Mayor's appointment of respondent Villa to
the said classified position of Chief of Police null and void,
considering that he is an outsider, he is not next-in-rank
examination for Chief of Police?"
The respondents Claudio and Villa formulate the issues, thus:
1. "(1)Is the appointment of the Chief of Police of Pasay City to
be regulated by Section 8 of the Police Act of 1966, or
45
VOL. 28, MAY 13, 1969 45
Pineda vs. Claudio

1. by Section 4 of the Decentralization Act and the third
paragraph of Section 23 of the Civil Service Law?
2. "(2)If the appointment of the Chief of Police of Pasay City is
subject to the provisions of section 4 of the Decentralization
Act, is it mandatory that respondent Mayor appoint Petitioner
to the position?"
The respondent Subido, in his Answer, "submits the matter to the
judicious consideration of this Honorable Court," emphasizing the
urgency of the resolution of the legal issues presented, "considering
that the questioned appointment of respondent Francisco A. Villa
would be the first appointment under the Decentralization Act and any
decision thereon would guide the future action of the Civil Service
Commission and other offices concerned in the application of said
law."
The first two paragraphs of Section 23 of the Civil Service Act (the
third paragraph we have already reproduced above, supra), read
together with Section 1 of Article XII of the Philippine Constitution
which directs that "[A]ppointments in the Civil Service x x x shall be
made only according to merit and fitness, to be determined as far as
practicable by competitive examinations," provide the key for the
proper application and interpretation of the "next-inrank" rule
enunciated in the third paragraph of said Sec. 23. These first two
paragraphs set the guide norm that:
"SEC. 23. Recruitment and Selection of Employees.—Opportunity for
government employment shall be open to all qualified citizens
and positive efforts shall be exerted to attract the best qualified to
enter the service.
"Employees shall be selected on the basis of their fitness to
perform the duties and assume the responsibilities of the
positions whether in the competitive or classified or in the
noncompetitive or unclassified service." (Italics supplied)
The granting of equal opportunity for government employment to all
qualif ied citizens and the exertion of positive efforts to attract the best
qualified to enter the service may be implemented effectively only
through the judicious exercise of the best judgment and discretion of
the appointing authority.
Resolving the issue squarely presented, we hold that it is neither
mandatory nor ministerial for the mayor of Pasay
ADMELEC Cases
206
46
46 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
City to promote to the vacant position of chief of police the incumbent
deputy chief of police Pineda, and that the appointment to said position
of the respondent Villa, who has been certified as qualified and
eligible, although an "outsider" and not the next-in-rank employee, is
valid, in the same manner that the appointment of Pineda, although
an "outsider" and not the next-in-rank, to the position of deputy chief
of police was valid.
The Civil Service Act does not peremptorily require the mayor to
promote the officer next in rank. Section 23 thereof does not require
that vacancies must be filled by promotion, transfer, reinstatement,
reemployment or certification, in that order. That would be to construe
the provision not merely as a legislative prescription of qualifications
but as a legislative appointment, repugnant to the Constitution. What
it does purport to say is that as far as practicable the person next in
rank should be promoted, otherwise the vacancy may be f illed by
transf er, reinstatement, reemployment or certif ication, as the
appointing power sees f it, provided the appointee is certif ied to be
qualif ied and eligible—which is the basic requirement of the Civil
Service Act, as well as of the Police Act and the Decentralization Law.
To construe section 23 the way the petitioner urges it should be,
would be to unduly interf ere with the power and prerogatives of the
local executive as reinforced by the Decentralization Act at the same
time that it would frustrate the policy of the Police Act "to achieve and
attain a higher degree of efficiency in the organization, administration,
and operation of local police agencies"2 and that of the Civil Service
Act "to attract the best qualified to enter the service." For it is not
enough that an aspirant is qualified and eligible or that he is next in
rank or line for promotion, albeit by passive prescription. It is just as
necessary, in order for public administration to be dynamic and
responsive to the needs of the times, that the local executive be
allowed the choice of men of his confidence, provided they are
qualified and eligible, who in his best
___________
2 Sec. 2.
47

VOL. 28, MAY 13, 1969 47
Pineda vs. Claudio
estimation are possessed of the requisite reputation, integrity,
knowledgeability, energy and judgment. After all, it is the local
executive, more than anyone else, who is primarily responsible for
efficient governmental administration in the locality and the effective
maintenance of peace and order therein, and is directly answerable to
the people who elected him. Nowhere is this more true than in the
sensitive area of police administration.
True it is that in Millares,3 this Court, referring to section 23 of the
Civil Service Act, made the following statement:
"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. And only where, for special reason or reasons of which the
affected officer or employee will be notified, this mode of recruitment
or selection cannot be observed, that the position may be filled either
by transfer, or reemployment, or by getting from the certified list of
appropriate eligibles, in that order."
But that statement was not necessary, considering that, in the
language of the decision itself, "no evidence was presented that there
were ranking employees in the office of the City Mayor aff ected by the
appointment of appellee to the position involved herein." There was
therefore no occasion f or the application of section 23 to that case.
Here, the question is squarely presented,4 and we now rule that
the principle of seniority and the next-in-rank rule embodied in section
23, with its corollary requirement to set forth the "special reason or
reasons" in case the officer next in rank is not appointed to the vacant
position, applies only to cases of promotion. Hence, where the
appointing power chooses to fill the vacancy not by promotion but by
____________
3 Supra, note 1.
4 The respondent Claudio likewise contends that the petitioner
cannot be considered ranking because the removal of previous
incumbents. of the position of deputy chief of police in Pasay City is
the subject of pending litigations in the lower court, but for the purpose
of this case, we can regard the petitioner Basilio M. Pineda as the duly
ADMELEC Cases
207
appointed deputy chief of police as long as his appointment is not set
aside.
48
48 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
transfer, reinstatement, reemployment or certification (not necessarily
in that order, as we have already said) he is under no duty whatsoever
to explain his action, for the law does not so require him. The reason
for this distinction is simple. When a person who is a junior jumps over
his senior, the ranking is disturbed and the person next in rank is
actually bypassed, and so it is reasonable to require the appointing
power to give his "special reason or reasons" for preferring his
appointee to the officer next-in-rank. But where the vacancy is filled
not by promotion but by transfer, the person next-in-rank is not really
bypassed because the person appointed is one who holds a position
of equivalent rank as the vacant position. To the appointee, the new
position is hardly a higher one. As this Court correctly observed
in Millares, in distinguishing promotion from transfer, "whereas the
first denotes a scalar ascent of a senior officer or employee to another
position, higher either in rank or salary, the second refers to a lateral
movement from one position to another of equivalent rank, level or
salary."5
The same reasoning applies when the person chosen to fill the
vacancy is merely being reinstated to, or reemployed in, the position
which he formerly held. For it is obvious that in this case such person
is the senior of the one who at the moment is next in rank. As f or the
person chosen by certification, it may be said that he has never been
rated before and so he can be said neither to be below nor above the
ranking employee in the hierarchy.
_____________
5
Compare the following provisions of the Revised Civil Service
Rules:
"As used in this Rule, promotion means advancement from one
position to another with an increase in duties and responsibilities as
authorized by law, and usually accompanied by an increase in salary."
Rule VII, Sec. 1.
"For purposes of this Rule, a transfer is a movement from one
position to another which is of equivalent rank, level or salary, without

break of service, and involving the issuance of an appointment. The
transfer may be between Departments or agencies, or from one
organizational unit to another in the same Department or agency."
Rule IV, Sec. 21.
49
VOL. 28, MAY 13, 1969 49
Pineda vs. Claudio
It may be added that there is no valid or cogent reason to consider it
mandatory and ministerial that the f illing of vacancies be by
promotion, transfer, reinstatement or reemployment, and certif ication,
in that order. There is no legal fiat that those next in rank for promotion
are more fit and meritorious for appointment than those moved by
transfer from another unit or department, and that those applying for
transfer should have "preference" to those seeking reinstatement, and
the latter in turn to those who are duly certified eligibles. From the
perspective of practical experience, it cannot be doubted that some
next-inrank officers or employees have risen to their seniority slots
through mere passivity. And as a matter of policy, those who have
previously resigned to avoid investigation of involvement in
irregularities in office should certainly not be allowed to invoke
"preference" when they subsequently seek reinstatement or
reemployment. The only way to determine such f itness would be to
hold a competitive examination among all applicants every time a
vacancy occurs, which would be completely disruptive of the public
service. Our Constitution recognized this and hence provided that
appointments be made according to merit and fitness, to be
determined only as far as practicable by competitive examination.
Hence, our system of qualification through periodic appropriate
examinations. Among those qualified and eligible, the appointing
authority is granted the discretion and prerogative of choice of the one
he deems most fit for appointment.
This is not to say that seniority and rank are of no consequence.
The Civil Service Act does direct, as we construe it, that as far as
practicable the next in rank should be among the first considered for
the vacancy, if qualified and eligible, and requires that when the
vacancy is filled by promotion, the appointing authority must give the
"special reason or reasons" for bypassing the next-in-rank. But such
official cannot claim any preferential right to appointment to the
ADMELEC Cases
208
vacancy over others equally certified to be qualified and eligible for
appointment by transfer, re-
50
50 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
instatement or reemployment, or by appropriate certification, just as
those applying for transfer cannot claim preference over those seeking
reinstatement, etc., nor subject the appointing authority's reasons for
his choice to final review and decision by the Civil Service
Commissioner. To so hold as the petitioner and the respondent
Commissioner contend, would be to invalidly substitute the judgment
of the Commissioner of Civil Service f or that of the appointing
authority, in whom the prerogative of free choice resides. More, in the
present case, Subido's action of questioning respondent Claudio's
sincerity in not appointing petitioner to the vacant position of chief of
police when he had appointed him (Pineda) as deputy chief of police
just a few months before, projects the pitfalls of such a theory which
would in some cases permit unauthorized interference by the
Commissioner of Civil Service with the appointing authority's free
exercise of his judgment and prerogative of free choice.
Of course, where there is unequivocally demonstrated an arbitrary
and improvident exercise of the power of the appointing authority, as
will constitute a denial of due process of law, to paraphrase the Court's
ruling in Morrero v. Bocar,6 such as where the qualifications, merit,
experience and competence of an official next in rank for promotion
are widely disparate over those of the actual appointee, proper
remedy through judicial review would be available. For due process
recognizes the free exercise by the executive of his prerogatives
under the Constitution and the laws but rules out arbitrariness and
oppression.7
We do not of course lose sight of the fact that Section 4 of the
Decentralization Act of 1967 does provide that
"In cases of vacancies in the offices of heads and assistant heads of
local offices, the governor or mayor shall fill them by appointment from
a list of the five next ranking eligible
___________
6 66 Phil. 429, 431 (1938).
7 Cf. Morfe v. Mutuc, G.R. L-20387, Jan. 22 SCRA 424.
 209

51 52
VOL. 28, MAY 13, 1969 51 52 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio Pineda vs. Claudio
and qualified persons as certified by the Civil Service Commission. x him a promotional appointment, the performance of which may be
x x." compelled by mandamus.
ACCORDINGLY, the petition for mandamus is denied, without
Reading this provision in the light of the Civil Service Act, the meaning pronouncement as to costs.
emerges that in each class the Commissioner must certify, whenever Reyes, J.B.L., Acting C.J., Makalintal and Capistrano,
there are available, five ranking, qualified and eligible persons. Thus, JJ., concur.
the Commissioner whenever practicable and possible, must certify Sanchez, J., concurs in the result.
five qualified and eligible persons for each area, i.e., five such persons Fernando, J., concurs in a separate opinion.
for promotion, five such persons for transfer, and so on. And this has Dizon and Zaldivar, JJ., dissent in separate opinions.
been properly implemented by the respondent Commissioner in his Teehankee and Barredo, JJ., did not take part.
last Memorandum Circular No. 21, S. of 1968, dated September 5, Concepcion, C.J., on leave, took no part.
1968, where he announced that his office would certify not more than
five eligibles and qualified persons in each list as follows: "(a) FERNANDO, J.: concurring:
promotion list; (b) transfer list; (c) reinstatement/ reemployment list;
and (d) list of appropriate eligibles,"8 although he erroneously The opinion of the Court penned by Justice Castro, distinguished by
assigned priority thereto In that order, whereas we have above ruled the meticulous and painstaking care with which the controlling
that there is no such order of priority amongst the four said areas. statutory provisions are considered and examined, merits full
We, therefore, hold that in the event of there occurring a vacancy, approval. That I give. I wish to avail myself of this opportunity,
the officer next in rank must, as far as practicable and as the however, to explore the implications of what to me is yielded by
appointing authority sees f it in his best judgment and estimation, be constitutional principles, certainly not lost sight of but not explicitly
promoted, otherwise the vacancy may be filled either by transfer, avowed in the opinion, which need, for me at least, greater stress and
reinstatement, reemployment or certification—not necessarily in that emphasis.
order and that it is only in cases of promotion, where an employee 1. The constitutional purpose that animates the provision on the
other than the ranking one is appointed, is the appointing power under Civil Service appears to be deserving of further reflection. This is so,
duty to give "special reason or reasons" for his action to the Civil especially in view of the fact that this Court by a long, unbroken,
Service Commissioner, as provided in Section 23, third paragraph, of unquestioned course of impressive adjudication has correctly
the Civil Service Act. buttressed the constitutional protection afforded the civil service
As there is no question that the respondent Villa has been certified career officials from the many and diverse ways by which removal in
to be qualified and eligible, it is well within the ambit of the power of fact could result, though ostensibly based on non-objectionable
the respondent Claudio to appoint him chief of police of Pasay City. grounds, contrary to the security of tenure saf eguarded by the
Consequently, the respondent Claudio owes the petitioner no duty to fundamental law.1
extend to __________
_____________
1 Cf. Lacson v. Romero, 84 Phil. 740 (1949); De los Santos v.
8 Annex XIII of respondent Commissioner Subido's Memorandum, Mallare, 87 Phil. 289 (1950); Lacson v. Roque, 92 Phil.
Rollo, p. 251. 456 (1953); Batungbakal v. National Dev. Co., 93 Phil.

ADMELEC Cases

182 (1953); Rodriguez v. del Rosario, 93 Phil. 1070 (1953); Mission v.
del Rosario, 94 Phil. 483 (1954) ; Palamine vs. Zagado, 94 Phil.
494 (1954) ; Inocente v. Ribo, 94 Phil. 652 (1914); Abella v.
Rodriguez, 95 Phil. 289 (1954): Uy v. Rodriguez, 95 Phil. 493 (1954)
; Gorospe v. De Veyra, 96 Phil. 545 (1955) ;
53
VOL. 28, MAY 13, 1969 53
Pineda vs. Claudio
That is as it should be. Fidelity to such a constitutional mandate leaves
this Court no other alternative but to give it vitality and to translate such
a concept to a living reality. It cannot be said then that there was in
every appropriate case a failure on our part to manifest full deference
to such a constitutional mandate.
At the same time, and perhaps unavoidably so, in view of such
unmistakable deference accorded to security of tenure, the impression
may have been created that such a provision was embodied in the
Constitution primarily for the interest of the civil service employees or
officials alone. On its f ace, such an assumption is not per
se unreasonable. An officeholder's right to permanency guaranteed
against arbitrary suspension or dismissal is indeed a claim
constitutionally recognized for his welfare and benefit.
__________
Olegario v. Lacson, 97 Phil. 75 (1955); Quintos v. Lacson, 97 Phil.
290 (1955) ; Meneses and Litao v. Lacson, 97 Phil.
857 (1955); Tavora v. Montelibano, 98 Phil. 800 (1956); Pulutan v.
Dizon, 99 Phil. 168 (1956); Unabia v. City Mayor, 99 Phil.
253 (1956); Faunillar v. del Rosario, 99 Phil. 758 (1956); Claravall v.
Paraan, 100 Phil. 476 (1956); Senarillos v. Hermosisima, 100 Phil.
501 (1956); Jose v. Lacson, L-10477, May 12, 1957; Cuyo v. City
Mayor, 101 Phil. 558 (1957); Cammayo v. Viña, 101 Phil.
1149 (1957); Cabo Kho v. Rodriguez, L-9032, Sept. 28, 1957; Briones
v. Osmeña, 104 Phil. 588 (1958); Diaz v. Amante, 104 Phil.
968 (1958); Mangubat v. Osmeña, Jr., L-12837, April 30,
1959; Baguio v. Rodriguez, L-11078, May 27, 1959; Tan v.
Gimenez, 107 Phil. 17 (1960); Subido v. Sarmiento, L-14981, May 23,
1960; Fernandez v. Cuneta, L-14392, May 30, 1960; Board 01
Directors v. Alandy, L-15391, Oct. 31, 1960; Vito v. Lacson, L-16137,
Dec. 23, 1961; Gonzales v. Osmeña, L-15901, Dec. 30,
ADMELEC Cases
210
1961; Dichoso v. Valdepeñas, L-17448, Aug. 31, 1962; Corpus v.
Cuaderno, L-17860, Mar. 30, 1962; Garcia v. Salcedo, L-19748, Sept.
13, 1962; Fernandez v. Ledesma, L-18878, Mar 30, 1963; Libarnes v.
Executive Secretary, L-21505, Oct. 24, 1963; Jorge v. Mayor, L-
21776, Feb. 28, 1964; Diaz v. Raquid, L-19158, Feb. 27, 1965; Tañala
v. Legaspi, L-22537, Mar. 31, 1965; Corpus v. Cuaderno, L-23721,
Mar. 31, 1965; City of Manila v. Subido, 17 SCRA 231 (1966); Cariño
v. ACCFA, 18 SCRA 183 (1966); Piñero v. Hechanova, 18 SCRA
417 (1966) ; Abaya v. Villegas, 18 SCRA 1034 (1966) ; Ferrer v.
Hechanova, 19 SCRA 105 (1967); Abellera v. City of Baguio, 19
SCRA 600 (1967); Cruz v. Primicias, 23 SCRA 998 (1968) ; Perez y.
Subido, 23 SCRA 1074 (1968),
54
54 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
With all due recognition of the truth of the above observation, however,
we must keep in mind that the Article on the Civil Service, 2 like other
provisions of the Constitution, was inserted primarily to assure a
government, both efficient and adequate to fulfill the ends for which it
has been established. That is a truism. It is not subject to dispute. It is
in that sense that a public office is considered a public trust.
Everyone in the public service cannot and must not lose sight of
that fact. While his right as an individual although employed by the
government is not to be arbitrarily disregarded, be cannot and should
not remain unaware that the only justification for his continuance in
such service is his ability to contribute to the public welfare.
There may be occasion then where the needs of the collectivity
that is the government may collide with his private interest as an
individual. Here, as in most public law questions, adjustment or
balancing is required. It is true that there should be no needless
sacrifice of individual right. At the same time, considering that
everyone who is in the employ of the state is rightfully assumed to
bear in mind that he is there to advance public ends, he cannot in the
process of such balancing or adjustment assert undue preference for
his private claims. So it must be if the ideal of a public office being a
public trust were to attain realization.
To be more precise, it is my view that under the Constitution,
except in the indisputable case of security of tenure specifically
safeguarded, the construction of whatever statute may be passed or

an executive action taken should be in favor of according preference
to the demands of public service. Only thus to my mind can we
manifest fealty to what is implicit in the constitutional provision in the
Civil Service. Since the opinion of the Court is distinguished by its conf
ormity to such a constitutional purpose, I am, as announced at the
beginning, in full agreement.
___________
2 Article XII,
55
VOL. 28, MAY 13, 1969 55
Pineda vs. Claudio
Nor is this to announce a novel proposition. In a 1968 decision, 3 we
emphatically gave expression to such a view. Thus: "It would seem
fairly obvious then that the law does not impose a rigid or mechanistic
formula on the appointing power, compliance with which is inexorable
and a deviation therefrom fatal. Far from it. 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. Unless, theref ore, the law speaks
in the most mandatory and peremptory tone, considering all the
circumstances, there should be, as there has been, full recognition of
the wide scope of such discretionary authority. Happily, there is
nothing in the Civil Service Act, which is fittingly concerned with
protecting the rights of those in the career service, that, rightly
construed, calls for a different conclusion. It is well worth repeating
that the broad authority of a department head appears indisputable.
Such is the policy of the law, a policy reflected with fidelity in the
decisions of this Court."
2. It seems appropriate for me that the norm applicable to a
department head should equally be considered fitting when the power
ADMELEC Cases
211
to appoint is given to the city mayor of a chartered city. Only thus may
local autonomy be further bolstered and fortified.
It was Justice Laurel, who, in an ephocal decision,4 pointed to "the
recognition however limited in our Constitution of the right of self-
government x x x." The scope of
__________
3 Reyes v. Abeleda, 22 SCRA 825.
4 Villena v. Secretary of Interior, 67 Phil. 451 (1939).
56
56 SUPREME COURT REPORTS ANNOTATED
Pineda vs. Claudio
such recognition then, whenever appropriate, must be broadened not
restricted. Where the legislative body in the enactment of
Decentralization Law,5 had made manifest its purpose to enlarge the
powers of municipal officials vis a vis the President, there should be
no hesitancy on our part to accord to such statute a construction that
would unequivocally demonstrate our assent to such legislative
expression of will.
To my mind, the judicial interpretation adopted by us is thus in
conformity with the limitation on the powers of the President, where
local government is concerned, to that of general supervision as
distinguished from the control he may exercise over all the executive
departments, bureaus or offices of the national government.6 If the
decision were otherwise, then a choice in effect coming from the
Commissioner of Civil Service, himself one of the officials under the
control of the President, would be considered binding and the will of
the local official primarily chargeable with the responsibility over local
peace and order conditions disregarded and set at naught. I cannot
view any such possibility as other than a failure to abide by the grant
of local autonomy however limited found in the Constitution.
Happily, the opinion of the Court, as pointed out at the outset, while
not explicitly avowing such a view, appears to be informed by such a
spirit. There is thus no bar to my yielding unconditional assent to it, the
only purpose of this concurrence being to bring out to the surface
certain constitutional implications that may not, at first glance and
without sufficient scrutiny, be readily apparent.

G.R. No. 78239. February 9, 1989.*
SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S.
FACTORAN, JR., respondent.
Criminal Law; Pardon, Effects of; Administrative Law; Public
Officers; Pardon does not ipso facto restore a convicted felon to public
office necessarily relinquished or forfeited by reason of such
conviction.—Pardon granted after conviction frees the individual from
all the penalties and legal disabilities and restores him to all his civil
rights. But unless expressly grounded on the person’s innocence
(which is rare), it cannot bring back lost reputation for honesty, integrity
and fair dealing. This must be constantly kept in mind lest we lose
track of the true character and purpose of the privilege. Thus,
notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly-held
opinion that pardon does not ipso facto restore a convicted felon to
public office necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.
Same; Same; Same; Same; Same; The pardon granted to
petitioner resulted in removing her disqualification from holding public
employment, but to regain her former post, she must reapply and
undergo the usual procedure required for a new appointment.—For
petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of the
punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred
to that when her guilt and punishment were expunged by her pardon,
this
_______________
* EN BANC.
191
VOL. 170, FEBRUARY 9, 1989 191
Monsanto vs. Factoran, Jr.
particular disability was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which was forfeited by
reason of her conviction. And in considering her qualifications and
ADMELEC Cases
212
suitability for the public post, the facts constituting her offense must be
and should be evaluated and taken into account to determine
ultimately whether she can once again be entrusted with public funds.
Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as assistant city
treasurer, she must reapply and undergo the usual procedure required
for a new appointment.
Same; Same; Same; Civil Liability, Extinction Of; The pardon
granted to herein petitioner did not extinguish the civil liability arising
from the crime she has been convicted of.—Finally, petitioner has
sought exemption from the payment of the civil indemnity imposed
upon her by the sentence. The Court cannot oblige her. Civil liability
arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence
is not served by pardon, amnesty or commutation of sentence.
Petitioner’s civil liability may only be extinguished by the same causes
recognized in the Civil Code, namely: payment, loss of the thing due,
remission of the debt, merger of the rights of creditor and debtor,
compensation and novation.
Same; Same; Same; Acceptance of Pardon; Petitioner is
deemed to have abandoned her appeal when she accepted the
pardon granted to her.—The 1981 amendments had deleted the
earlier rule that clemency could be extended only upon final
conviction, implying that clemency could be given even before
conviction. Thus, petitioner’s unconditional pardon was granted even
as her appeal was pending in the High Court. It is worth mentioning
that under the 1987 Constitution, the former limitation of final
conviction was restored. But be that as it may, it is our view that in the
present case, it is not material when the pardon was bestowed,
whether before or after conviction, for the result would still be the
same. Having accepted the pardon, petitioner is deemed to have
abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
PADILLA, J., Separate opinion:
Criminal Law; Pardon, Effects of; Administrative Law; Public
Officers; A public officer, like herein petitioner, who has been
convicted of Estafa Through Falsification of Public Documents, though

192
192 SUPREME COURT REPORTS
ANNOTATED
Monsanto vs. Factoran, Jr.
subsequently pardoned, is deemed to have lost her right to
public office, unless such right is expressly restored by the pardon.—
An examination of the presidential pardon in question shows that,
while petitioner was granted “an absolute and unconditional pardon
and restored to full civil and political rights”, yet, nothing
therein expressly provides that the right to hold public office was
thereby restored to the petitioner. In view of the express exclusion by
Art. 36, R.P.C., of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an
effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law—hopefully to be honored more
in its compliance rather than in its breach—that a “public office is a
public trust.” The restoration of the right to hold public office to one
who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how
intensely arguable, but must be stated in express, explicit, positive and
specific language. To require this would not be asking too much.
FELICIANO, J., concurring:
Criminal Law; Pardon, Effects Of; Administrative Law; Public
Officers; The pardon granted to herein petitioner is ineffective to
restore her right to hold public office.—In other words, the mere grant
of a pardon to a public officer or employee who has been unfaithful to
the public trust and sentenced to disqualification from voting and from
holding such office, does not create the presumption that the recipient
of the pardon has thereby suddenly become morally eligible once
more to exercise the right to vote and to hold public office. In my view,
the pardon extended to petitioner was ineffective to restore to her the
right to hold public office and on this ground, I vote to DENY the
Petition for Review and to AFFIRM the assailed Resolution of the then
Executive Secretary Fulgencio S. Factoran, Jr.
ADMELEC Cases
213
PETITION to review the resolution of the Deputy Executive
Secretary.
The facts are stated in the opinion of the Court.
FERNAN, C.J.:
The principal question raised in this petition for review is
193
VOL. 170, FEBRUARY 9, 1989 193
Monsanto vs. Factoran, Jr.
whether or not a public officer, who has been granted an absolute
pardon by the Chief Executive, is entitled to reinstatement to her
former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan
convicted petitioner Salvacion A. Monsanto (then assistant treasurer
of Calbayog City) and three other accused, of the complex crime of
estafa thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day
of prision correccional as minimum, to ten (10) years and one (1) day
of prision mayor as maximum, and to pay a fine of P3,500. They were
further ordered to jointly and severally indemnify the government in
the sum of P4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which
subsequently affirmed the same. She then filed a motion for
reconsideration but while said motion was pending, she was extended
on December 17, 1984 by then President Marcos absolute pardon
which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City
treasurer requesting that she be restored to her former post as
assistant city treasurer since the same was still vacant.
Petitioner’s letter-request was referred to the Ministry of Finance
for resolution in view of the provision of the Local Government Code
transferring the power of appointment of treasurers from the city
governments to the said Ministry. In its 4th Indorsement dated March
1, 1985, the Finance Ministry ruled that petitioner may be reinstated
to her position without the necessity of a new appointment not earlier
than the date she was extended the absolute pardon. It also directed

the city treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied.1
Seeking reconsideration of the foregoing ruling, petitioner wrote
the Ministry on April 17, 1985 stressing that the full pardon bestowed
on her has wiped out the crime which implies
_______________
1 Rollo at 14-15.
194
194 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
that her service in the government has never been interrupted and
therefore the date of her reinstatement should correspond to the date
of her preventive suspension which is August 1, 1982; that she is
entitled to backpay for the entire period of her suspension; and that
she should not be required to pay the proportionate share of the
amount of P4,892.50.2
The Ministry of Finance, however, referred petitioner’s letter to the
Office of the President for further review and action. On April 15, 1986,
said Office, through Deputy Executive Secretary Fulgenio S. Factoran,
Jr. held:
“We disagree with both the Ministry of Finance and the petitioner
because, as borne out by the records, petitioner was convicted of the
crime for which she was accused. In line with the government’s
crusade to restore absolute honesty in public service, this Office
adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the
Resolution of the Sandiganbayan, 2nd Division, in People v.
Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not
absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of his
salaries, benefits and emoluments due to him during the period of his
suspension pendente lite.
“In fact, in such a situation, the former public official must secure a
reappointment before he can reassume his former position. xxx.
“Anent the civil liability of Monsanto, the Revised Penal Code
expressly provides that ‘a pardon shall in no case exempt the culprit
from payment of the civil indemnity imposed upon him by the
sentence.’ (Sec. 36, par. 2).
ADMELEC Cases
214
“IN VIEW OF THE FOREGOING, this Office holds that Salvacion
A. Monsanto is not entitled to an automatic reinstatement on the basis
of the absolute pardon granted her but must secure an appointment
to her former position and that, notwithstanding said absolute pardon,
she is liable for the civil liability concomitant to her previous
conviction.”3
Her subsequent motion for reconsideration having been denied,
petitioner filed the present petition in her behalf. We gave due course
on October 13, 1987.
_______________
2 Rollo at 18-19.
3 Rollo at 21-22.
195
VOL. 170, FEBRUARY 9, 1989 195
Monsanto vs. Factoran, Jr.
Petitioner’s basic theory is that the general rules on pardon cannot
apply to her case by reason of the fact that she was extended
executive clemency while her conviction was still pending appeal in
this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to
have been terminated or forfeited. In other words, without that final
judgment of conviction, the accessory penalty of forfeiture of office did
not attach and the status of her employment remained “suspended.”
More importantly, when pardon was issued before the final verdict of
guilt, it was an acquittal because there was no offense to speak of. In
effect, the President has declared her not guilty of the crime charged
and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the
complex crime of estafa thru falsification of public documents and
sentenced to imprisonment of four years, two months and one day
of prision correccional as minimum, to ten years and one day
of prision mayor as maximum. The penalty of prision mayor carries
the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage,
enforceable during the term of the principal penalty.5 Temporary
absolute disqualification bars the convict from public office or
employment, such disqualification to last during the term of the

sentence.6 Even if the offender be pardoned, as to the principal
penalty, the accessory penalties remain unless the same have been
expressly remitted by the pardon.7 The penalty of prision
correccional carries, as one of its accessory penalties, suspension
from public office.8
The propositions earlier advanced by petitioner reveal her
inadequate understanding of the nature of pardon and its legal
consequences. This is not totally unexpected considering that the
authorities on the subject have not been wholly consistent particularly
in describing the effects of pardon.
_______________
4 Rollo at 73.
5 Article 42, Revised Penal Code.
6 Article 30, supra.
7 Article 36, supra.
8 Article 43, supra.
196
196 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
The benign mercy of pardon is of British origin, conceived to temper
the gravity of the King’s wrath. But Philippine jurisprudence on the
subject has been largely influenced by American case law.
Pardon is defined as “an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the individual,
on whom it is bestowed, from the punishment the law inflicts for a
crime he has committed. It is the private, though official act of the
executive magistrate, delivered to the individual for whose benefit it is
intended, and not communicated officially to the Court. x x x. A pardon
is a deed, to the validity of which delivery is essential, and delivery is
not complete without acceptance.”8-a
At the time the antecedents of the present case took place, the
pardoning power was governed by the 1973 Constitution as amended
in the April 7, 1981 plebiscite. The pertinent provision reads:
“The President may, except in cases of impeachment, grant reprieves,
commutations and pardons, remit fines and forfeitures, and with the
concurrence of the Batasang Pambansa, grant amnesty.”9
ADMELEC Cases
215
The 1981 amendments had deleted the earlier rule that clemency
could be extended only upon final conviction, implying that clemency
could be given even before conviction. Thus, petitioner’s unconditional
pardon was granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987 Constitution, the
former limitation of final conviction was restored. But be that as it may,
it is our view that in the present case, it is not material when the pardon
was bestowed, whether before or after conviction, for the result would
still be the same. Having accepted the pardon, petitioner is deemed to
have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the char-
_______________
8-a United States v. Wilson, 7 Pet. 150, 160-1, cited in Bernas, The
1973 Philippine Constitution, Notes and Cases, Part I, 1974 Ed., p.
355.
9 Article VII, Section 11.
197
VOL. 170, FEBRUARY 9, 1989 197
Monsanto vs. Factoran, Jr.
acter of finality.
Having disposed of that preliminary point, we proceed to discuss
the effects of a full and absolute pardon in relation to the decisive
question of whether or not the plenary pardon had the effect of
removing the disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino,10 we find a reiteration of the stand
consistently adopted by the courts on the various consequences of
pardon: “x x x we adopt the broad view expressed in Cristobal v.
Labrador, G.R. No. 47941, December 7, 1940, that subject to the
limitations imposed by the Constitution, the pardoning power cannot
be restricted or controlled by legislative action; that an absolute
pardon not only blots out the crime committed but removes all
disabilities resulting from the conviction. x x x. (W)e are of the opinion
that the better view in the light of the constitutional grant in this
jurisdiction is not to unnecessarily restrict or impair the power of the
Chief Executive who, after an inquiry into the environmental facts,
should be at liberty to atone the rigidity of the law to the extent of
relieving completely the party x x x concerned from the accessory and
resultant disabilities of criminal conviction.”

The Pelobello v. Palatino and Cristobal v. Labrador cases,11 and
several others12 show the unmistakable application of the doctrinal
case of Ex Parte Garland,13 whose sweeping generalizations to this
day continue to hold sway in our jurisprudence despite the fact that
much of its relevance has been downplayed by later American
decisions.
Consider the following broad statements:
“A pardon reaches both the punishment prescribed for the offense and
the guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed the
offense. If granted before conviction, it prevents any
_______________
10 72 Phil. 441.
11 Supra.
12 In re Lontok, 43 Phil. 293; Pendon v. Diasnes, 91 Phil.
848 and Mijares v. Custorio, 73 Phil. 507.
13 4 Wall. 333, 18 L. Ed. 366.
198
198 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
of the penalties and disabilities, consequent upon conviction, from
attaching; if granted after conviction, it removes the penalties and
disabilities and restores him to all his civil rights; it makes him, as it
were, a new man, and gives him a new credit and capacity.” 14
Such generalities have not been universally accepted, recognized or
approved.15 The modern trend of authorities now rejects the unduly
broad language of the Garland case (reputed to be perhaps the most
extreme statement which has been made on the effects of a pardon).
To our mind, this is the more realistic approach. While a pardon has
generally been regarded as blotting out the existence of guilt so that
in the eye of the law the offender is as innocent as though he never
committed the offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt. Pardon
implies guilt. It does not erase the fact of the commission of the crime
and the conviction thereof. It does not wash out the moral stain. It
involves forgiveness and not forgetfulness.16
ADMELEC Cases
216
The better considered cases regard full pardon (at least one not
based on the offender’s innocence) as relieving the party from all the
punitive consequences of his criminal act, including the
disqualifications or disabilities based on the finding of guilt. 17 But it
relieves him from nothing more. “To say, however, that the offender is
a ‘new man’, and ‘as innocent as if he had never committed the
offense;’ is to ignore the difference between the crime and the criminal.
A person adjudged guilty of an offense is a convicted criminal, though
pardoned; he may be deserving of punishment, though left
unpunished; and the law may regard him as more dangerous to
society than one never found guilty of crime, though it places no
restraints upon him following his conviction.”18
_______________
14 Ex Parte Garland, supra at 367.
15 67 C. J. S. 576-577.
16 67 C. J. S. 576-577; Page vs. Watson, 192 So. 205, 126 A.L.R.
249, 253.
17 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E.
2d 95.
18 State v. Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.
199
VOL. 170, FEBRUARY 9, 1989 199
Monsanto vs. Factoran, Jr.
A pardon looks to the future. It is not retrospective. 19 It makes no
amends for the past. It affords no relief for what has been suffered by
the offender. It does not impose upon the government any obligation
to make reparation for what has been suffered. “Since the offense has
been established by judicial proceedings, that which has been done
or suffered while they were in force is presumed to have been rightfully
done and justly suffered, and no satisfaction for it can be
required.”20 This would explain why petitioner, though pardoned,
cannot be entitled to receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon,
the Chief Executive declared her not guilty of the crime for which she
was convicted. In the case of State v. Hazzard,21 we find this strong
observation: “To assume that all or even a major number of pardons
are issued because of innocence of the recipients is not only to indict
our judicial system, but requires us to assume that which we all know

to be untrue. The very act of forgiveness implies the commission of
wrong, and that wrong has been established by the most complete
method known to modern civilization. Pardons may relieve from the
disability of fines and forfeitures attendant upon a conviction, but they
cannot erase the stain of bad character, which has been definitely
fixed.”22
In this ponencia, the Court wishes to stress one vital point: While
we are prepared to concede that pardon may remit all the penal
consequences of a criminal indictment if only to give meaning to the
fiat that a pardon, being a presidential prerogative, should not be
circumscribed by legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and that once he
is absolved, he should be treated as if he were innocent. For whatever
may have been the judicial dicta in the past, we cannot perceive how
pardon can produce such “moral changes” as to equate a pardoned
convict in character and conduct with one who has constantly
_______________
19 Morris v. Hartsfield, 197 S.E. 251.
20 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L. Ed. 550, 554-
555, citing Knote v. United States, 95 U.S. 149.
21 247 p. 957.
22 See also State v. Serfling, 230 P. 847.
200
200 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are
“historical” facts which, despite the public manifestation of mercy and
forgiveness implicit in pardon, “ordinary, prudent men will take into
account in their subsequent dealings with the actor.” 23
Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights.
But unless expressly grounded on the person’s innocence (which is
rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing.24 This must be constantly kept in mind lest we lose track of
the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly-held
ADMELEC Cases
217
opinion that pardon does not ipso facto restore a convicted felon to
public office necessarily relinquished or forfeited by reason of the
conviction25 although such pardon undoubtedly restores his eligibility
for appointment to that office.26
The rationale is plainly evident. Public offices are intended
primarily for the collective protection, safety and benefit of the common
good. They cannot be compromised to favor private interests. To insist
on automatic reinstatement because of a mistaken notion that the
pardon virtually acquitted one from the offense of estafa would be
grossly untenable. A pardon, albeit full and plenary, cannot preclude
the appointing power from refusing appointment to anyone deemed to
be of bad character, a poor moral risk, or who is unsuitable by reason
of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of
_______________
23 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E.
2d 95.
24 Ibid.
25 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L.E. 550; Page v.
Watson, 192 So. 205, 126 ALR, 249; State v. Hazzard, 247 P. 957
and In re Stephenson, 10 So. 2d 1.
26 59 Am. Jur. 2d 40.
201
VOL. 170, FEBRUARY 9, 1989 201
Monsanto vs. Factoran, Jr.
the punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred
to that when her guilt and punishment were expunged by her pardon,
this particular disability was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which was forfeited by
reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be
and should be evaluated and taken into account to determine
ultimately whether she can once again be entrusted with public funds.
Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as assistant city

treasurer, she must reapply and undergo the usual procedure required
for a new appointment.
Finally, petitioner has sought exemption from the payment of the
civil indemnity imposed upon her by the sentence. The Court cannot
oblige her. Civil liability arising from crime is governed by the Revised
Penal Code. It subsists notwithstanding service of sentence, or for any
reason the sentence is not served by pardon, amnesty or commutation
of sentence. Petitioner’s civil liability may only be extinguished by the
same causes recognized in the Civil Code, namely: payment, loss of
the thing due, remission of the debt, merger of the rights of creditor
and debtor, compensation and novation.27
WHEREFORE, the assailed resolution of former Deputy Executive
Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is
AFFIRMED. No costs.
So ordered.
G.R. No. 85279. July 28, 1989.*
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION
(SSSEA), DIONISIO T. BAYLON, RAMON MODESTO, JUANITO
MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO
ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO,
petitioners, vs. THE COURT OF APPEALS, SOCIAL SECURITY
SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98,
QUEZON CITY, respondents.
Constitutional Law; Right to Self-Organization; The rights of all
workers to self-organization, collective bargaining and negotiations
and peaceful concerted activities including the right to strike in
accordance with law guaranteed.—The 1987 Constitution, in the
Article on Social Justice and Human Rights, provides that the State
“shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law.”
Same; Same; Right to strike; While there is no question
employees to organize, it is silent as to whether such recognition also
includes the right to strike.—By itself, this provision would seem to
recognize the right of all workers and employees, including those in
the public sector, to strike. But the Constitution itself fails to expressly
confirm this impression, for in the Sub-Article on the Civil Service
Commission, it provides, after defining the scope of the civil service as
ADMELEC Cases
218
“all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations
with original charters,” that “[t]he right to self-organization shall not be
denied to government employees” [Art. IX(B), Sec. 2(1) and (5)].
Parenthetically, the Bill of Rights also provides that “[t]he right of the
people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law
shall not abridged” [Art. III, Sec. 8]. Thus, while there is no question
that the Constitution recognizes the right of government employees to
organize, it is silent as to whether such recognition also includes the
right to strike.
_______________
*THIRD DIVISION.
687
VOL. 175, JULY 28, 1989 687
Social Security System Employees
Association (SSSEA) vs. Court of Appeals
Same; Same; Same; Same; Framers of the organic law
intended to limit the right to the formation of unions or associations
only without including the right to strike.—Resort to the intent of the
framers of the organic law becomes helpful in understanding the
meaning of these provisions. A reading of the proceedings of the
Constitutional Commission that drafted the 1987 Constitution would
show that in recognizing the right of government employees to
organize, the commissioners intended to limit the right to the formation
of unions or associations only, without including the right to strike.
Same; Same; Same; Strikes by employees of the government
exercising propriety functions recognized under the Industrial Peace
Act.—It will be recalled that the Industrial Peace Act (R.A. No. 875),
which was repealed by the Labor Code (P.D. 442) in 1974, expressly
banned strikes by employees in the Government, including
instrumentalities exercising governmental functions, but excluding
entities entrusted with proprietary functions.
Same; Same; Same; Same; No similar provision is found in the
Labor Code.—No similar provision is found in the Labor Code,
although at one time it recognized the right of employees of
government corporations established under the Corporation Code to

organize and bargain collectively and those in the civil service to “form
organizations for purposes not contrary to law” [Art. 224, before its
amendment by B.P. Blg. 70 in 1980], in the same breath it provided
that “[t]he terms and conditions of employment of all government
employees, including employees of government owned and controlled
corporations, shall be governed by the Civil Service Law, rules and
regulations.”
Same; Same; Same; Same; Same; At present, in the absence
of any legislation allowing government employees to strike,
recognizing their right to do so, or regulating the exercise of the right,
they are prohibited from striking by express provision of Memorandum
Circular No. 6 and as implied in E.O. No. 180.—On June 1, 1987, to
implement the constitutional guarantee of the right of government
employees to organize, the President issued E.O. No. 180 which
provides guidelines for the exercise of the right to organize of
government employees. In Section 14 thereof, it is provided that “[t]he
Civil Service law and rules governing concerted activities and strikes
in the government service shall be observed, subject to any legislation
that may be enacted by
688
688 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees
Association (SSSEA) vs. Court of Appeals
Congress.” The President was apparently referring to
Memorandum Circular No. 6, s. 1987 of the Civil Service Commission
under date April 21, 1987 which, “prior to the enactment by Congress
of applicable laws concerning strike by government employees. . .
enjoins under pain of administrative sanctions, all government officers
and employees from staging strikes, demonstrations, mass leaves,
walk-outs and other forms of mass action which will result in temporary
stoppage or disruption of public service.” The air was thus cleared of
the confusion. At present, in the absence of any legislation allowing
government employees to strike, recognizing their right to do so, or
regulating the exercise of the right, they are prohibited from striking,
by express provision of Memorandum Circular No. 6 and as implied in
E.O. No. 180.
Same; Same; Same; Employees of the SSS are part of the civil
service and are covered by the Civil Service Commission’s
ADMELEC Cases
219
Memorandum prohibiting strikes.—The Court is of the considered
view that they are. Considering that under the 1987 Constitution “[t]he
civil service embraces all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or
controlled corporations with original charters” [Art. IX (B), Sec. 2(1);
see also Sec. 1 of E.O. No. 180 where the employees in the civil
service are denominated as “government employees”] and that the
SSS is one such government-controlled corporation with an original
charter, having been created under R.A. No. 1161, its employees are
part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295,
November 24, 1988] and are covered by the Civil Service
Commission’s memorandum prohibiting strikes. This being the case,
the strike staged by the employees of the SSS was illegal.
Same; Same; Same; Rationale for distinguishing between
workers in the private sector and government employees with regard
to the right to strike.—The general rule in the past and up to the
present is that “the terms and conditions of employment in the
Government, including any political subdivision or instrumentality
thereof are governed by law” (Section 11, the Industrial Peace Act,
R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No.
442, as amended). Since the terms and conditions of government
employment are fixed by law, government workers cannot use the
same weapons employed by workers in the private sector to secure
concessions from their employers. The principle behind labor
unionism in private industry is that industrial
689
VOL. 175, JULY 28, 1989 689
Social Security System Employees
Association (SSSEA) vs. Court of Appeals
peace cannot be secured through compulsion by law. Relations
between private employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of wage laws
and other labor and welfare legislation, the terms and conditions of
employment in the unionized private sector are settled through the
process of collective bargaining. In government employment,
however, it is the legislature and, where properly given delegated
power, the administrative heads of government which fix the terms and
conditions of employment. And this is effected through statutes or

administrative circulars, rules, and regulations, not through collective
bargaining agreements.
Same; Same; Same; The terms and conditions of employment
in the government including any political subdivision or instrumentality
thereof and government-owned and controlled corporations with
original charters are governed by law and employees therein shall not
strike for the purpose of securing changes thereof.—Government
employees may, therefore, through their unions or associations, either
petition the Congress for the betterment of the terms and conditions
of employment which are within the ambit of legislation or negotiate
with the appropriate government agencies for the improvement of
those which are not fixed by law. If there be any unresolved
grievances, the dispute may be referred to the Public Sector Labor-
Management Council for appropriate action. But employees in the civil
service may not resort to strikes, walkouts and other temporary work
stoppages, like workers in the private sector, to pressure the
Government to accede to their demands. As now provided under Sec.
4, Rule III of the Rules and Regulations to Govern the Exercise of the
Right of Government-Employees to Self-Organization, which took
effect after the instant dispute arose, “[t]he terms and conditions of
employment in the government, including any political subdivision or
intrumentality thereof and government-owned and controlled
corporations with original charters are governed by law and
employees therein shall not strike for the purpose of securing changes
thereof.”
Same; Same; Same; The Labor Code itself provides that terms
and conditions of employment of government employees shall be
governed by the Civil Service Law, rules and regulations; NLRC
clearly has no jurisdiction over the dispute at bar.—It is futile for the
petitioners to assert that the subject labor dispute falls within the
exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court
had no jurisdic-
690
690 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees
Association (SSSEA) vs. Court of Appeals
tion to issue a writ of injunction enjoining the continuance of the
strike. The Labor Code itself provides that terms and conditions of
ADMELEC Cases
220
employment of government employees shall be governed by the Civil
Service Law, rules and regulations [Art. 276]. More importantly, E.O.
No. 180 vests the Public Sector Labor-Management Council with
jurisdiction over unresolved labor disputes involving government
employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the
dispute.
Same; Same; Same; Regional Trial Court not precluded from
assuming jurisdition over the SSS’s complaint for damages and
issuing the injunctive writ prayed for.—This being the case, the
Regional Trial Court was not precluded, in the exercise of its general
jurisdiction under B.P. Blg. 129, as amended, from assuming
jurisdiction over the SSS’s complaint for damages and issuing the
injunctive writ prayed for therein. Unlike the NLRC, the Public Sector
Labor-Management Council has not been granted by law authority to
issue writs of injunction in labor disputes within its jurisdiction. Thus,
since it is the Council, and not the NLRC, that has jurisdiction over the
instant labor dispute, resort to the general courts of law for the
issuance of a writ of injunction to enjoin the strike is appropriate.
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Vicente T. Ocampo & Associates for petitioners.
CORTÉS, J.:
Primarily, the issue raised in this petition is whether or not the Regional
Trial Court can enjoin the Social Security System Employees
Association (SSSEA) from striking and order the striking employees
to return to work. Collaterally, it is whether or not employees of the
Social Security System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of
Quezon City a complaint for damages with a prayer for a writ of
preliminary injunction against petitioners, alleging that on June 9,
1987, the officers and members of SSSEA staged an illegal strike and
baricaded the entrances to the SSS Building,
691
VOL. 175, JULY 28, 1989 691

Social Security System Employees Association
(SSSEA) vs. Court of Appeals
preventing non-striking employees from reporting for work and SSS
members from transacting business with the SSS; that the strike was
reported to the Public Sector Labor-Management Council, which
ordered the strikers to return to work; that the strikers refused to return
to work; and that the SSS suffered damages as a result of the strike.
The complaint prayed that a writ of preliminary injunction be issued to
enjoin the strike and that the strikers be ordered to return to work; that
the defendants (petitioners herein) be ordered to pay damages; and
that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to
act on the union’s demands, which included: implementation of the
provisions of the old SSS-SSSEA collective bargaining agreement
(CBA) on check-off of union dues; payment of accrued overtime pay,
night differential pay and holiday pay; conversion of temporary or
contractual employees with six (6) months or more of service into
regular and permanent employees and their entitlement to the same
salaries, allowances and benefits given to other regular employees of
the SSS; and payment of the children’s allowance of P30.00, and after
the SSS deducted certain amounts from the salaries of the employees
and allegedly committed acts of discrimination and unfair labor
practices [Rollo, pp. 21-24].
The court a quo, on June 11, 1987, issued a temporary restraining
order pending resolution of the application for a writ of preliminary
injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to
dismiss alleging the trial court’s lack of jurisdiction over the subject
matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition,
reiterating its prayer for the issuance of a writ of injunction [Rollo, pp.
209-222]. On July 22, 1987, in a four-page order, the court a
quo denied the motion to dismiss and converted the restraining order
into an injunction upon posting of a bond, after finding that the strike
was illegal [Rollo, pp. 83-86]. As petitioners’ motion for the
reconsideration of the aforesaid order was also denied on August 14,
1988 [Rollo, p. 94], petitioners filed a petition for certiorari and
prohibition with preliminary injunction before this Court. Their petition
was docketed as G.R. No. 79577. In a resolution dated
692
ADMELEC Cases
221
692 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
October 21, 1987, the Court, through the Third Division, resolved to
refer the case to the Court of Appeals. Petitioners filed a motion for
reconsideration thereof, but during its pendency the Court of Appeals
on March 9, 1988 promulgated its decision on the referred case [Rollo,
pp. 130-137]. Petitioners moved to recall the Court of Appeals’
decision. In the meantime, the Court on June 29, 1988 denied the
motion for reconsideration in G.R. No. 97577 for being moot and
academic. Petitioners’ motion to recall the decision of the Court of
Appeals was also denied in view of this Court’s denial of the motion
for reconsideration [Rollo, pp. 141-143]. Hence, the instant petition to
review the decision of the Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6, 1989, the Court issued a
temporary restraining order enjoining the petitioners from staging
another strike or from pursuing the notice of strike they filed with the
Department of Labor and Employment on January 25, 1989 and to
maintain the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply
and supplemental reply filed by petitioners, considered the issues
joined and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had
no jurisdiction to hear the case initiated by the SSS and to issue the
restraining order and the writ of preliminary injunction, as jurisdiction
lay with the Department of Labor and Employment or the National
Labor Relations Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the
ground that the employees of the SSS are covered by civil service
laws and rules and regulations, not the Labor Code, therefore they do
not have the right to strike. Since neither the DOLE nor the NLRC has
jurisdiction over the dispute, the Regional Trial Court may enjoin the
employees from striking.
In dismissing the petition for certiorari and prohibition with
preliminary injunction filed by petitioners, the Court of Appeals held
that since the employees of the SSS, are government employees, they
are not allowed to strike, and may be enjoined by the Regional Trial

Court, which had jurisdiction over the SSS’ complaint for damages,
from continuing with their strike.
693
VOL. 175, JULY 28, 1989 693
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
Thus, the sequential questions to be resolved by the Court in deciding
whether or not the Court of Appeals erred in finding that the Regional
Trial Court did not act without or in excess of jurisdiction when it took
cognizance of the case and enjoined the strike are as follows:
1. 1.Do the employees of the SSS have the right to strike?
2. 2.Does the Regional Trial Court have jurisdiction to hear the
case initiated by the SSS and to enjoin the strikers from
continuing with the strike and to order them to return to
work?
These shall be discussed and resolved seriatim.
I
The 1987 Constitution, in the Article on Social Justice and Human
Rights, provides that the State “shall guarantee the rights of all
workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in
accordance with law” [Art. XIII, Sec. 3].
By itself, this provision would seem to recognize the right of all
workers and employees, including those in the public sector, to strike.
But the Constitution itself fails to expressly confirm this impression, for
in the Sub-Article on the Civil Service Commission, it provides, after
defining the scope of the civil service as “all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters,”
that “[t]he right to self-organization shall not be denied to government
employees” [Art. IX(B), Sec. 2(1) and (50)]. Parenthetically, the Bill of
Rights also provides that “[t]he right of the people, including those
employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not
abridged” [Art. III, Sec. 8]. Thus, while there is no question that the
Constitution recognizes the right of government employees to
ADMELEC Cases
222
organize, it is silent as to whether such recognition also includes the
right to strike.
Resort to the intent of the framers of the organic law becomes
helpful in understanding the meaning of these provisions. A reading of
the proceedings of the Constitutional Commission
694
694 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
that drafted the 1987 Constitution would show that in recognizing the
right of government employees to organize, the commissioners
intended to limit the right to the formation of unions or associations
only, without including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the
provision that “[t]he right to self-organization shall not be denied to
government employees” [Art. IX(B), Sec. 2(5)], in answer to the
apprehensions expressed by Commissioner Ambrosio B. Padilla,
Vice-President of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. When
we proposed this amendment providing for self-organization of
government employees, it does not mean that because they have the
right to organize, they also have the right to strike. That is a different
matter. We are only talking about organizing, uniting as a union. With
regard to the right to strike, everyone will remember that in the Bill of
Rights, there is a provision that the right to form associations or
societies whose purpose is not contrary to law shall not be abridged.
Now then, if the purpose of the state is to prohibit the strikes coming
from employees exercising government functions, that could be done
because the moment that is prohibited, then the union which will go
on strike will be an illegal union. And that provision is carried in
Republic Act 875. In Republic Act 875, workers, including those from
the government-owned and controlled, are allowed to organize but
they are prohibited from striking. So, the fear of our honorable Vice-
President is unfounded. It does not mean that because we approve
this resolution, it carries with it the right to strike. That is a different
matter. As a matter of fact, that subject is now being discussed in the
Committee on Social Justice because we are trying to find a solution
to this problem. We know that this problem exists; that the moment we

allow anybody in the government to strike, then what will happen if the
members of the Armed Forces will go on strike? What will happen to
those people trying to protect us? So that is a matter of discussion in
the Committee on Social Justice. But, I repeat, the right to form an
organization does not carry with it the right to strike. [Record of the
Constitutional Commission, vol. I, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which
was repealed by the Labor Code (P.D. 442) in 1974, expressly banned
strikes by employees in the Government,
695
VOL. 175, JULY 28, 1989 695
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
including instrumentalities exercising governmental functions, but
excluding entities entrusted with proprietary functions:
Sec. 11. Prohibition Against Strikes in the Government.—The terms
and conditions of employment in the Government, including any
political subdivision or instrumentality thereof, are governed by law
and it is declared to be the policy of this Act that employees therein
shall not strike for the purpose of securing changes or modification in
their terms and conditions of employment. Such employees may
belong to any labor organization which does not impose the obligation
to strike or to join in strike: Provided, however, That this section shall
apply only to employees employed in governmental functions and not
those employed in proprietary functions of the Government including
but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time
it recognized the right of employees of government corporations
established under the Corporation Code to organize and bargain
collectively and those in the civil service to “form organizations for
purposes not contrary to law” [Art. 244, before its amendment by B.P.
Blg. 70 in 1980], in the same breath it provided that “[t]he terms and
conditions of employment of all government employees, including
employees of government owned and controlled corporations, shall be
governed by the Civil Service Law, rules and regulations” [now Art.
276]. Understandably, the Labor Code is silent as to whether or not
government employees may strike, for such are excluded from its
coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is
equally silent on the matter.
ADMELEC Cases
223
On June 1, 1987, to implement the constitutional guarantee of the
right of government employees to organize, the President issued E.O.
No. 180 which provides guidelines for the exercise of the right to
organize of government employees. In Section 14 thereof, it is
provided that “[t]he Civil Service law and rules governing concerted
activities and strikes in the government service shall be observed,
subject to any legislation that may be enacted by Congress.” The
President was apparently referring to Memorandum Circular No. 6, s.
1987 of the Civil Service Commission under date April 21, 1987 which,
“prior to the
696
696 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
enactment by Congress of applicable laws concerning strike by
government employees . . . enjoins under pain of administrative
sanctions, all government officers and employees from staging strikes,
demonstrations, mass leaves, walk-outs and other forms of mass
action which will result in temporary stoppage or disruption of public
service.” The air was thus cleared of the confusion. At present, in the
absence of any legislation allowing government employees to strike,
recognizing their right to do so, or regulating the exercise of the right,
they are prohibited from striking, by express provision of
Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this
juncture, it must be stated that the validity of Memorandum Circular
No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against
strikes?
The Court is of the considered view that they are. Considering that
under the 1987 Constitution “[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original
charters” [Art. IX(B), Sec. 2(1); see also Sec. 1 of E.O. No. 180 where
the employees in the civil service are denominated as “government
employees”] and that the SSS is one such government-controlled
corporation with an original charter, having been created under R.A.
No. 1161, its employees are part of the civil service [NASECO v.
NLRC, G.R. Nos. 69870 & 70295, November 24, 1988] and are

covered by the Civil Service Commission’s memorandum prohibiting
strikes. This being the case, the strike staged by the employees of the
SSS was illegal.
The statement of the Court in Alliance of Government Workers v.
Minister of Labor and Employment [G.R. No. 60403, August 3,
1983, 124 SCRA 1] is relevant as it furnishes the rationale for
distinguishing between workers in the private sector and government
employees with regard to the right to strike:
The general rule in the past and up to the present is that “the terms
and conditions of employment in the Government, including
697
VOL. 175, JULY 28, 1989 697
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
any political subdivision or instrumentality thereof are governed by
law” (Section 11, the Industrial Peace Act, R.A. No. 875, as amended
and Article 277, the Labor Code, P.D. No. 442, as amended). Since
the terms and conditions of government employment are fixed by law,
government workers cannot use the same weapons employed by
workers in the private sector to secure concessions from their
employers. The principle behind labor unionism in private industry is
that industrial peace cannot be secured through compulsion by law.
Relations between private employers and their employees rest on an
essentially voluntary basis. Subject to the minimum requirements of
wage laws and other labor and welfare legislation, the terms and
conditions of employment in the unionized private sector are settled
through the process of collective bargaining. In government
employment, however, it is the legislature and, where properly given
delegated power, the administrative heads of government which fix
the terms and conditions of employment. And this is effected through
statutes or administrative circulars, rules, and regulations, not through
collective bargaining agreements. [At p. 13; Italics supplied].
Apropos is the observation of the Acting Commissioner of Civil
Service, in his position paper submitted to the 1971 Constitutional
Convention, and quoted with approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the
nature of the public employer and the peculiar character of the public
service, it must necessarily regard the right to strike given to unions in
private industry as not applying to public employees and civil service
ADMELEC Cases
224
employees. It has been stated that the Government, in contrast to the
private employer, protects the interest of all people in the public
service, and that accordingly, such conflicting interests as are present
in private labor relations could not exist in the relations between
government and those whom they employ. [At pp. 16-17; also quoted
in National Housing Corporation v. Juco, G.R. No. 64313, January 17,
1985, 134 SCRA 172, 178-179].
E.O. No. 180, which provides guidelines for the exercise of theright
to organize of government employees, while clinging tothe same
philosophy, has, however, relaxed the rule to allownegotiation where
the terms and conditions of employment
698
698 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
involved are not among those fixed by law. Thus:
SECTION 13. Terms and conditions of employment or improvements
thereof, except those that are fixed by law, may be the subject of
negotiations between duly recognized employees’ organizations and
appropriate government authorities.
The same executive order has also provided for the general
mechanism for the settlement of labor disputes in the public sector, to
wit:
SECTION 16. The Civil Service and labor laws and procedures,
whenever applicable, shall be followed in the resolution of complaints,
grievances and cases involving government employees. In case any
dispute remains unresolved after exhausting all the available
remedies under existing laws and procedures, the parties may jointly
refer the dispute to the [Public Sector Labor-Management] Council for
appropriate action.
Government employees may, therefore, through their unions or
associations, either petition the Congress for the betterment of the
terms and conditions of employment which are within the ambit of
legislation or negotiate with the appropriate government agencies for
the improvement of those which are not fixed by law. If there be any
unresolved grievances, the dispute may be referred to the Public

Sector Labor-Management Council for appropriate action. But
employees in the civil service may not resort to strikes, walkouts and
other temporary work stop-pages, like workers in the private sector, to
pressure the Government to accede to their demands. As now
provided under Sec. 4, Rule III of the Rules and Regulations to Govern
the Exercise of the Right of Government-Employees to Self-
Organization, which took effect after the instant dispute arose, “[t]he
terms and conditions of employment in the government, including any
political subdivision or instrumentality thereof and government-owned
and controlled corporations with original charters are governed by law
and employees therein shall not strike for the purpose of securing
changes thereof.”
699
VOL. 175, JULY 28, 1989 699
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
II
The strike staged by the employees of the SSS belonging to petitioner
union being prohibited by law, an injunction may be issued to restrain
it.
It is futile for the petitioners to assert that the subject labor dispute
falls within the exclusive jurisdiction of the NLRC and, hence, the
Regional Trial Court had no jurisdiction to issue a writ of injunction
enjoining the continuance of the strike. The Labor Code itself provides
that terms and conditions of employment of government employees
shall be governed by the Civil Service Law, rules and regulations [Art.
276]. More importantly, E.O. No. 180 vests the Public Sector Labor-
Management Council with jurisdiction over unresolved labor disputes
involving government employees [Sec. 16]. Clearly, the NLRC has no
jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded,
in the exercise of its general jurisdiction under B.P. Blg. 129, as
amended, from assuming jurisdiction over the SSS’s complaint for
damages and issuing the injunctive writ prayed for therein. Unlike the
NLRC, the Public Sector Labor-Management Council has not been
granted by law authority to issue writs of injunction in labor disputes
within its jurisdiction. Thus, since it is the Council, and not the NLRC,
that has jurisdiction over the instant labor dispute, resort to the general
ADMELEC Cases
225
courts of law for the issuance of a writ of injunction to enjoin the strike
is appropriate.
Neither could the court a quo be accused of imprudence or
overzealousness, for in fact it had proceeded with caution. Thus, after
issuing a writ of injunction enjoining the continuance of the strike to
prevent any further disruption of public service, the respondent judge,
in the same order, admonished the parties to refer the unresolved
controversies emanating from their employer-employee relationship to
the Public Sector Labor-Management Council for appropriate action
[Rollo, p. 86].
700
700 SUPREME COURT REPORTS
ANNOTATED
Social Security System Employees Association
(SSSEA) vs. Court of Appeals
III
In their “Petition/Application for Preliminary and Mandatory Injunction,”
and reiterated in their reply and supplemental reply, petitioners allege
that the SSS unlawfully withheld bonuses and benefits due the
individual petitioners and they pray that the Court issue a writ of
preliminary prohibitive and mandatory injunction to restrain the SSS
and its agents from withholding payment thereof and to compel the
SSS to pay them. In their supplemental reply, petitioners annexed an
order of the Civil Service Commission, dated May 5, 1989, which ruled
that the officers of the SSSEA who are not preventively suspended
and who are reporting for work pending the resolution of the
administrative cases against them are entitled to their salaries, year-
end bonuses and other fringe benefits and affirmed the previous order
of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court,
it is Our view that petitioners’ remedy is not to petition this Court to
issue an injunction, but to cause the execution of the aforesaid order,
if it has already become final.
WHEREFORE, no reversible error having been committed by the
Court of Appeals, the instant petition for review is hereby DENIED and
the decision of the appellate court dated March 9, 1988 in CA-G.R. SP
No. 13192 is AFFIRMED. Petitioners’ “Petition/Application for
Preliminary and Mandatory Injunction” dated December 13, 1988 is
DENIED.

SO ORDERED.
G.R. No. 49677. May 4, 1989. *
TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES,
petitioner, vs. NATIONAL HOUSING CORPORATION and ATTY.
VIRGILIO SY, as Officer-in-Charge of the Bureau of Labor Relations,
respondents.
Constitutional Law; Civil Service; The civil service now covers
only government-owned and controlled corporations with original or
legislative charters. ___ Consequently, the civil service now covers
only gov-ernment-owned or controlled corporations with original or
legislative charters, that is those created by an act of Congress or by
special law, and not those incorporated under and pursuant to a
general legislation. As We recently held ___ “x x x, the situations sought
to be avoided by the 1973 Constitution and expressed by this Court in
the National Housing Corporation case x x x appear relegated to
relative insignificance by the 1987 Constitutional provision that the
Civil Service embraces government-owned or controlled corporations
with original charters and therefore, by clear implication, the Civil
Service does n ot include government-owned or controlled
corporations which are organized as subsidiaries of government-
owned or controlled corporations under the general corporation law.”
Same; Bill of Rights; Right to Unionize; The right to unionize is
now explicitly recognized and granted to employees of both the
governmental and private sector. ___ The workers or employees of
NHC undoubtedly have the right to form unions or employees’
organizations. The right to unionize or to form organizations is now
explicitly recognized and granted to employees in both the
governmental and the private sectors. The Bill of Rights provides that
“(t)he right of the people, including those employed in the public and
private sectors, to form unions, associations or societies for purposes
not contrary to law shall not be abridged.” This guarantee is reiterated
in the second paragraph of Section 3, Article XIII, on Social Justice
and Human Rights, which mandates that the State “shall guarantee
the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to
strike in accordance with law. x x x.”
ADMELEC Cases
226
_______________
* EN BANC.
34
34 SUPREME COURT REPORTS
ANNOTATED
Trade Unions of the Philippines and Allied
Services vs. National Housing Corporation
Same; Same; Same; Labor Law; Certification election; Workers
of the National Housing Corp. may conduct a certification election to
determine their exclusive bargaining representative. ___ There is,
therefore, no impediment to the holding of a certification election
among the workers of NHC for it is clear that they are covered by the
Labor Code, the NHC being a government-owned and/or controlled
corporation without an original charter. Statutory implementation of the
last-cited section of the Constitution is found in Article 244 of the Labor
Code, as amended by Executive Order No. 111, thus: “Right of
employees in the public service. ___ Employees of the government
corporations established under the Corporation Code shall have the
right to organize and to bargain collectively with their respective
employers. All other employees in the civil service shall have the right
to form associations for purposes not contrary to law.” The records do
not show that supervening factual events have mooted the present
action. It is meet, however, to also call attention to the fact that, insofar
as certification elections are concerned, subsequent statutory
developments have rendered academic even the distinction between
the two types of government-owned or controlled corporations and the
laws governing employment relations therein, as hereinbefore
discussed. For, whether the employees of NHC are covered by the
Labor Code or by the civil service laws, a certification election may be
conducted.
Same; Same; Same; Same; Same; Exec. Order 180;
Employees of the government who are covered by the civil service
laws are governed by E.O. 180 in the exercise of their right to
organize. ___ For employees in corporations and entities covered by
the Labor Code, the determination of the exclusive bargaining
representative is particularly governed by Articles 255 to 259 of said
Code. Article 256 provides for the procedure when there is a

representation issue in organized establishments, while Article 257
covers unorganized establishments. These Labor Code provisions are
fleshed out by Rules V to VII, Book V of the Omnibus Implementing
Rules. With respect to other civil servants, that is, employees of all
branches, subdivisions, instrumentalities and agencies of the
government including government-owned or controlled corporations
with original charters and who are, therefore, covered by the civil
service laws, the guidelines for the exercise of their right to organize
is provided for under Executive Order No. 180. Chapter IV thereof,
consisting of Sections 9 to 12, regulates the determination of the “sole
and exclusive employees’ representative.” Under Section 12, “where
there are two or more duly registered employees’ organizations in the
appropriate organizational unit, the Bureau of Labor
35
VOL. 173, MAY 4 , 1989 35
Trade Unions of the Philippines and Allied
Services vs. National Housing Corporation
Relations shall, upon petition, order the conduct of certification
election and shall certify the winner as the exclusive representative of
the rank-and-file employees in said organizational unit.”
PETITION for certiorari to review the resolution of the Bureau of Labor
Relations.
The facts are stated in the opinion of the Court.
Bonifacio V. Tupaz for petitioner.
The Government Corporate Counsel for respondent NHC.
Raul E. Espinosa for intervenor PACIWU.
REGALADO, J.:
The employees of the public sector comprise the largest bloc of
workers in our national work force. Governmental bureaucracy is
continually being reorganized to cope with the growing complexity of
the problems and needs of political and administrative governance. As
the increase in the number of government employees grows apace,
the need to enhance their welfare correspondingly becomes more
imperative. While it may be assumed that the Government is exerting
efforts to advance the interests of its employees, it is quite
understandable that the employees themselves should actively seek
ADMELEC Cases
227
arrangements whereby they can participate more meaningfully in
management and employment relationships. There is, thus, a
proliferation of unions or employees’ organizations, each seeking
concomitant representational recognition.
The antecedent facts which led to the filing of this special civil
action for certiorari are clear and undisputed. The juridical status and
relevant circumstances of respondent corporation have been
established in a case of illegal dismissal filed against it, as previously
decided by the Court and hereinafter discussed. However, submitted
this time for Our resolution is a controversy on the propriety of and
requirements for certification elections in government-owned or
controlled corporations like the respondent.
Respondent National Housing Corporation (hereinafter referred to
as NHC) is a corporation organized in 1959 in accor-
36
SUPREME COURT REPORTS ANNOTATED 36
Trade Unions of the Philippines and Allied Services
vs. National Housing Corporation
dance with Executive Order No. 399, otherwise known as the Uniform
Charter of Government Corporations, dated January 1, 1951. Its
shares of stock are and have been one hundred percent (100%)
owned by the Government from its incorporation under Act 459, the
former corporation law. The government entities that own its shares of
stock are the Government Service Insurance System, the Social
Security System, the Development Bank of the Philippines, the
National Investment and Development Corporation and the People’s
Homesite and Housing Corporation. 1 Petitioner Trade Unions of the
Philippines and Allied Services (TUPAS, for brevity) is a legitimate
labor organization with a chapter in NHC.
On July 13, 1977, TUPAS filed a petition for the conduct of a
certification election with Regional Office No. IV of the Department of
Labor in order to determine the exclusive bargaining representative of
the workers in NHC. It was claimed that its members comprised the
majority of the employees of the corporation. 2 The petition was
dismissed by med-arbiter Eusebio M. Jimenez in an order, dated
November 7, 1977, holding that NHC “being a government-owned
and/or controlled corporation its employees/workers are prohibited to
form, join or assist any labor organization for purposes of collective

bargaining pursuant to Section 1, Rule II, Book V of the Rules and
Regulations Implementing the Labor Code.” 3
From this order of dismissal, TUPAS appealed to the Bureau of
Labor Relations 4 where, acting thereon in BLR Case No. A-984-77
(RO4-MED-1090-77), Director Carmelo C. Noriel reversed the order
of dismissal and ordered the holding of a certification election. 5 This
order was, however, set aside by Officer-in-Charge Virgilio S.J. Sy in
his resolution of November
_______________
1
Rollo, 191; National Housing Corporation vs. Juco, et al., 134
SCRA 172 (1985).
2 Ibid., 14; Annex A.
3 Ibid., 20, Annex B.
4 Ibid., 21, Annex C.
5 Ibid., 27, Annex D.
37
37 VOL. 173, MAY 4 , 1989
Trade Unions of the Philippines and Allied Services
vs. National Housing Corporation
21, 1978 6 upon a motion for reconsideration of respondent NHC.
In the instant petition for certiorari, TUPAS seeks the reversal of
the said resolution and prays that a certification election be held
among the rank and file employees of NHC.
In retrospect, it will be recalled that in a former case of illegal
dismissal involving the same respondent corporation, 7 We had ruled
that the employees of NHC and of other government owned or
controlled corporations were governed by civil service laws, rules and
regulations pursuant to the 1973 Constitution which provided that “the
civil service embraces every branch, agency, subdivision and
instrumentality of the government, including government-owned or
controlled corporations.” 8
It was therein stressed that to allow subsidiary corporations to be
excluded from the civil service laws would be to permit the
circumvention or emasculation of the above-quoted constitutional
provision. As perceptively analyzed therein, “(i)t would be possible for
a regular ministry of government to create a host of subsidiary
corporations under the Corporation Code funded by a willing
legislature. A government-owned corporation could create several
ADMELEC Cases
228
subsidiary corporations. These subsidiary corporations would enjoy
the best of two worlds. Their officials and employees would be
privileged individuals, free from the strict accountability required by the
Civil Service Decree and the regulations of the Commission on Audit.
Their incomes would not be subject to the competitive restraints of the
open market nor to the terms and conditions of civil service
employment.”
The rule, however, was modified in the 1987 Constitution, the
corresponding provision whereof declares that “(t)he civil service
embraces all branches, subdivisions, instrumentalities and agencies
of the government, including government-owned or controlled
corporations with original charters.” 9
_______________
6 Ibid., 31, Annex E.
7 National Housing Corporation vs. Juco, et al., ante.
8 Sec. 1, Art. XII B.
9 Section 2 (1), Art. IX B.
38
38 SUPREME COURT REPORTS ANNOTATED
Trade Unions of the Philippines and Allied Services
vs. National Housing Corporation
Consequently, the civil service now covers only government-owned or
controlled corporations with original or legislative charters, that is
those created by an act of Congress or by special law, and not those
incorporated under and pursuant to a general legislation. As We
recently held ___
“x x x, the situations sought to be avoided by the 1973 Constitution
and expressed by this Court in the National Housing Corporation case
x x x appear relegated to relative insignificance by the 1987
Constitutional provision that the Civil Service embraces government-
owned or controlled corporations with original charters and therefore,
by clear implication, the Civil Service does not include government-
owned or controlled corporations which are organized as subsidiaries
of government-owned or controlled corporations under the general
corporation law.” 10

While the aforecited cases sought different reliefs, that is,
reinstatement consequent to illegal dismissal, the same lis mota
determinative of the present special civil action was involved therein.
The workers or employees of NHC undoubtedly have the right to
form unions or employees’ organizations. The right to unionize or to
form organizations is now explicitly recognized and granted to
employees in both the governmental and the private sectors. The Bill
of Rights provides that “(t)he right of the people, including those
employed in the public and private sectors, to form unions,
associations or societies for purposes not contrary to law shall not be
abridged.” 11
This guarantee is reiterated in the second paragraph of Section 3,
Article XIII, on Social Justice and Human Rights, which mandates that
the State “shall guarantee the rights of all
_______________
10 National Service Corporation, et al. vs. The Hon. Third Division,
National Labor Relations Commission, etc., et al., G.R. No. 69870,
Nov. 29, 1988; see also Bliss Development Corporation vs. National
Labor Relations Commission, et al., G.R. No. 82824, Resolution, Jan.
18, 1989.
11 Sec. 8, Art. III, 1987 Constitution.
39
VOL. 173, MAY 4 , 1989 39
Trade Unions of the Philippines and Allied Services
vs. National Housing Corporation
workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in
accordance with law. x x x.”
Specifically with respect to government employees, the right to
unionize is recognized in Paragraph (5), Section 2, Article IX
B 12 which provides that “(t)he right to self-organization shall not be
denied to government employees.” The rationale of and justification
for this innovation which found expression in the aforesaid provision
was explained by its proponents, as follows:
“x x x The government is in a sense the repository of the national
sovereignty and, in that respect, it must be held in reverence if not in
awe. It symbolizes the unity of the nation, but it does perform a
mundane task as well. It is an employer in every sense of the word
ADMELEC Cases
229
except that terms and conditions of work are set forth through a Civil
Service Commission. The government is the biggest employer in the
Philippines. There is an employer-employee relationship and we all
know that the accumulated grievances of several decades are now
beginning to explode in our faces among government workers who
feel that the rights afforded by the Labor Code, for example, to workers
in the private sector have been effectively denied to workers in
government in what looks like a grotesque, (sic) a caricature of the
equal protection of the laws. For example, x x x there were many
occasions under the old government when wages and cost of living
allowances were granted to workers in the private sector but denied
to workers in the government for some reason or another, and the
government did not even state the reasons why. The government
employees were being discriminated against. As a general rule, the
majority of the world’s countries now entertain public service unions.
What they really add up to is that the employees of the government
form their own association. Generally, they do not bargain for wages
because these are fixed in the budget but they do acquire a forum
where, among other things, professional and self-development is (sic)
promoted and encouraged. They also act as watchdogs of their own
bosses so that when graft and corruption is committed, generally, it is
the unions who are no longer afraid by virtue of the armor of self-
organiza-tion that become the public’s own allies for detecting graft
and corrup-
_______________
12 Constitutional Commissions; B. The Civil Service Commission.
40
40 SUPREME COURT REPORTS ANNOTATED
Trade Unions of the Philippines and Allied Services
vs. National Housing Corporation
tion and for exposing it. x x x” 13
There is, therefore, no impediment to the holding of a certification
election among the workers of NHC for it is clear that they are covered
by the Labor Code, the NHC being a government-owned and/or
controlled corporation without an original charter. Statutory
implementation of the last-cited section of the Constitution is found in

Article 244 of the Labor Code, as amended by Executive Order No.
111, thus:
“Right of employees in the public service. ___ Employees of the
government corporations established under the Corporation Code
shall have the right to organize and to bargain collectively with their
respective employers. All other employees in the civil service shall
have the right to form associations for purposes not contrary to law.”
The records do not show that supervening factual events have mooted
the present action. It is meet, however, to also call attention to the fact
that, insofar as certification elections are concerned, subsequent
statutory developments have rendered academic even the distinction
between the two types of government-owned or controlled
corporations and the laws governing employment relations therein, as
hereinbefore discussed. For, whether the employees of NHC are
covered by the Labor Code or by the civil service laws, a certification
election may be conducted.
For employees in corporations and entities covered by the Labor
Code, the determination of the exclusive bargaining representative is
particularly governed by Articles 255 to 259 of said Code. Article 256
provides for the procedure when there is a representation issue in
organized establishments, while Article 257 covers unorganized
establishments. These Labor Code provisions are fleshed out by
Rules V to VII, Book V of the Omnibus Implementing Rules.
With respect to other civil servants, that is, employees of all
branches, subdivisions, instrumentalities and agencies of the
_______________
13 Records of the Constitutional Commission, Vol. I, 567.
41
VOL. 173, MAY 4 , 1989 41
Trade Unions of the Philippines and Allied Services
vs. National Housing Corporation
government including government-owned or controlled corporations
with original charters and who are, therefore, covered by the civil
service laws, the guidelines for the exercise of their right to organize
is provided for under Executive Order No. 180. Chapter IV thereof,
consisting of Sections 9 to 12, regulates the determination of the “sole
and exclusive employees’ representative.” Under Section 12, “where
ADMELEC Cases
230
there are two or more duly registered employees’ organizations in the
appropriate organizational unit, the Bureau of Labor Relations shall,
upon petition, order the conduct of certification election and shall
certify the winner as the exclusive representative of the rank-and-file
employees in said organizational unit.”
Parenthetically, note should be taken of the specific qualification in
the Constitution that the State “shall guarantee the rights of all workers
to self-organization, collective bargaining, and peaceful concerted
activities, including the right to strike in accordance with law” and that
“(t)hey shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
” 14 (Italics supplied.)
ON THE FOREGOING CONSIDERATIONS, the assailed
resolution of the Bureau of Labor Relations, dated November 21,
1978, is ANNULLED and SET ASIDE and the conduct of a certification
election among the affected employees of respondent National
Housing Corporation in accordance with the rules therefor is hereby
GRANTED.
SO ORDERED.
G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE
HONORABLE MINISTER, LAND TRANSPORTATION AND
COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM
REGIONAL OFFICE NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:

Petitioner comes to us on a petition for review on certiorari of the
decision of 23 July 1985 of respondent Commission on Audit (COA)
denying his claim for payment of back wages, after he was reinstated
to the service pursuant to an executive clemency. He prays for the
extraordinary remedy of mandamus against public respondents to
enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the
Bureau of Telecommunications in Lucena City. On 1 April 1975,
petitioner was summarily dismissed from the service on the ground
of dishonesty in accordance with the decision of the then Ministry of
Public Works, Transportation and Communications in Adm. Case
No. 975 for the loss of several telegraph poles which were located at
the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom
lines. Petitioner did not appeal from the decision.
Based on the same facts obtaining in the administrative action, a
criminal case for qualified theft was filed against petitioner with the
then Court of First Instance (now Regional Trial Court) of Quezon.
On 23 January 1980, the trial court rendered its decision acquitting
petitioner of the offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated
7 April 1980, petitioner's request to be reinstated was denied by the
Bureau of Telecommunications. Hence, petitioner pleaded to the
President of the Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then
Ministry of Transportation and Communications and the Civil Service
Commission, Deputy Presidential Executive Assistant Joaquin T.
Venus, Jr., by authority of the President, per Resolution No. O.P.
1800, granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment
of back salaries effective 1 April 1975, the date of his dismissal from
the service. This was denied by the COA in its 5th Indorsement
dated 12 October 1982 on the ground that the executive clemency
ADMELEC Cases
231
granted to him did not provide for the payment of back salaries and
that he has not been reinstated in the service.
It appears that petitioner was recalled to the service on 12 March
1984 but the records do not show whether petitioner's reinstatement
was to the same position of Supervising Lineman.1
Petitioner again filed a claim to recover his back salaries for the
period from 1 April 1975, the date of his dismissal, to 12 March 1984,
when he was reinstated. In Decision No. 362 embodied in its 3rd
Indorsement dated 23 July 1985, respondent COA denied the claim
stating that the executive clemency was silent on the payment of
back wages and that he had not rendered service during the period
of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to
the Office of the President. On 21 April 1986, Deputy Executive
Secretary Fulgencio S. Factoran, Jr., by authority of the President,
denied the appeal "due to legal and constitutional
constraint,"2 holding that this Court is the proper forum to take
cognizance of the appeal on certiorari from the decision of the COA,
citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art.
IX-[A], Sec. 7, of the 1987 Constitution).
Hence, petitioner filed the instant petition on the issue of whether he
is entitled to the payment of back wages after having been reinstated
pursuant to the grant of executive clemency.
In his comment to the petition, the Solicitor General recommends
that the petition be given due course and the petitioner be awarded
back wages to be determined in the light of existing laws and
jurisprudence. The Solicitor General submits that the award is
implicit in the grant of executive clemency, the ultimate objective of
which is to accord full justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for
the following reasons: (a) petitioner's acquittal in the criminal case
did not necessarily free him from administrative liability; (b)
petitioners unexplained failure to appeal the decision in the

administrative case was tantamount to a waiver or renunciation of his
right to back wages; (c) the executive clemency was granted to
petitioner for the purpose of reinstatement only since it was silent on
the matter of back wages; (d) the award of back wages is allowed
only if the respondent is exonerated from the administrative charge
that his suspension or dismissal is declared illegal or unjustified by
the court; and, (e) petitioner did not render any service during the
period before his reinstatement, hence, he is not entitled to back
wages based on the "no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for,
the pardoning power to be exercised as an act of grace and
humanity, in proper cases. Without such a power of clemency, to be
exercised by some department or functionary of a government, a
country would be most imperfect and deficient in its political morality
and in that attribute of Deity whose judgments are always tempered
with money.3
Our Constitution reposes in the President the power and the
exclusive prerogative to extend executive clemency under the
following circumstances:
Except in cases of impeachment or as otherwise
provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of
the Congress.4
From among the different acts of executive clemency spelled out
above, the clemency granted to petitioner in the instant case
partakes of the nature of an executive pardon. A reading of
Resolution No. 1800 partly quoted hereunder is enlightening:
ADMELEC Cases
232
In a 3rd Indorsement dated September 5, 1980, the
Director of Telecommunications interposed no
objection to the petition, while the Minister of
Transportation and Communications, in his 4th
Indorsement dated November 17, 1980, favorably
recommended the grant of executive clemency to
petitioner for the reason that "while it is a rule that an
administrative case is separate and distinct from a
criminal case and an acquittal in the latter case dos
not ipso facto result in the exoneration in the former
case, yet an exception could arise if the basis for the
acquittal was the innocence of the accused as in the
case of petitioner Garcia.
Asked for comment pursuant to Section 43 of
Presidential Decree No. 807, the Civil service
Commission recommends the grant of executive
clemency to petitioner in view of the findings of the
court that —
instead of coming forward to the
defense of the accused who actually
was authorized to uproot or recover
the poles in question and of
commending the latter for his high
sense of responsibility in preventing
losses to the government, said high
officials had even the temerity to
disown and deny the authority they
gave to the accused resulting in his
separation from the service and
having him all alone in defending
himself against the accusation of the
very government he tried to protect.
After a careful study, this Office is inclined to grant
executive clemency to petitioner in the light of this
decision of the court acquitting him of the crime of
qualified theft which was based on the same acts
obtaining in Administrative Case No. 975 against

him, coupled with the favorable recommendation of
the Minister of Transportation and Communications
and the Civil Service Commission.
In view of the foregoing, petitioner Vicente Garcia is
hereby granted executive clemency.5
Time and again this Court has unfolded the effects of a pardon upon
the individual to whom it is granted. In Monsanto v. Factoran,6 we
have firmly established the general rule that while a pardon has
generally been regarded as blotting out the existence of guilt so that
in the eyes of the law the offender is as innocent as though he never
committed the offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt and not
forgetfulness . It does not erase the fact of the commission of the
crime and the conviction thereof. Pardon frees the individual from all
the penalties and legal disabilities and restores to him all his civil
rights. Unless expressly grounded on the person's innocence, it
cannot bring back lost reputation for honesty, integrity and fair
dealing. The pardoned offender regains his eligibility for appointment
to public office which was forfeited by reason of the conviction of the
offense. But since pardon does not generally result in automatic
reinstatement because the offender has to apply for reappointment,
he is not entitled to back wages.
But, stated otherwise, if the pardon is based on the innocence of the
individual, it affirms this innocence and makes him a new man and
as innocent; as if he had not been found guilty of the offense
charged.7 When a person is given pardon because he did not truly
commit the offense, the pardon relieves the party from all punitive
consequences of his criminal act, thereby restoring to him his clean
name, good reputation and unstained character prior to the finding of
guilt.
In the case at bar, petitioner was found administratively liable for
dishonesty and consequently dismissed from the service. However,
he was later acquitted by the trial court of the charge of qualified theft
based on the very same acts for which he was dismissed. The
acquittal of petitioner by the trial court was founded not on lack of
ADMELEC Cases
233
proof beyond reasonable doubt but on the fact that petitioner did not
commit the offense imputed to him. Aside from finding him innocent
of the charge, the trial court commended petitioner for his concern
and dedication as a public servant. Verily, petitioner's innocence is
the primary reason behind the grant of executive clemency to him,
bolstered by the favorable recommendations for his reinstatement by
the Ministry of Transportation and Communications and the Civil
Service Commission.
The bestowal of executive clemency on petitioner in effect
completely obliterated the adverse effects of the administrative
decision which found him guilty of dishonesty and ordered his
separation from the service. This can be inferred from the executive
clemency itself exculpating petitioner from the administrative charge
and thereby directing his reinstatement, which is rendered automatic
by the grant of the pardon. This signifies that petitioner need no
longer apply to be reinstated to his former employment; he is
restored to his office ipso facto upon the issuance of the clemency.
Petitioner's automatic reinstatement to the government service
entitles him to back wages.8 This is meant to afford relief to petitioner
who is innocent from the start and to make reparation for what he
has suffered as a result of his unjust dismissal from the service. To
rule otherwise would defeat the very intention of the executive
clemency, i.e., to give justice to petitioner. Moreover, the right to
back wages is afforded to those with have been illegally dismissed
and were thus ordered reinstated or to those otherwise acquitted of
the charges against them.9 There is no doubt that petitioner's case
falls within the situations aforementioned to entitle him to back
wages.
Further, it is worthy to note that the dismissal of petitioner was not
the result of any criminal conviction that carried with it forfeiture of
the right to hold public office, but is the direct consequence of an
administrative decision of a branch of the Executive Department over
which the President, as its head, has the power of control. The
President's control has been defined to mean "the power of an officer
to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to the judgment of the
former for the latter." 10 In pardoning petitioner and ordering his

reinstatement, the Chief Executive exercised his power of control
and set aside the decision of the Ministry of Transportation and
Communications. The clemency nullified the dismissal of petitioner
and relieved him from administrative liability. The separation of the
petitioner from the service being null and void, he is thus entitled to
back wages.
After having been declared innocent of the crime of qualified theft,
which also served as basis for the administrative charge, petitioner
should not be considered to have left his office for all legal purposes,
so that he is entitled to all the rights and privileges that accrued to
him by virtue of the office held, including back wages. 11
Established jurisprudence fixes recovery of back wages to a period
of five (5) years to be paid an illegally dismissed government
employee who has been ordered reinstated. 12 The cases heretofore
decided by this Court show that petitioners therein were employees
of local governments who were removed from office by their local
officials. The reasons given for their removal were abolition of office
or position, reduction of work force, or lack of funds on the part of the
local governments concerned, which reasons were found by this
Court to be either devoid of factual basis or not sufficiently proven,
otherwise, their dismissal would have been valid and justified. In
contrast, the case before us is different, involving as it does
circumstances that impel us to deviate from the general rule
previously laid down on the recovery of back wages for five (15)
years. Petitioner's reinstatement in the instant case which was
ordered pursuant to a grant of executive clemency was effected not
because of lack of sufficient proof of his commission of the offense
but that, more importantly, he did not commit the offense charged.
Verily, law, equity and justice dictate that petitioner be afforded
compassion for the embarrassment, humiliation and, above all,
injustice caused to him and his family by his unfounded dismissal.
This Court cannot help surmising the painful stigma that must have
caused petitioner, the incursion on his dignity and reputation, for
having been adjudged, albeit wrongfully, a dishonest man, and
worse, a thief. Consequently, this Court finds it fair and just to award
petitioner full back wages from 1 April 1975 when he was illegally
dismissed, to 12 March 1984 when he was reinstated. The payment
shall be without deduction or qualification.
ADMELEC Cases
234
WHEREFORE, the petition is GRANTED. The decision of
respondent Commission on Audit dated 23 July 1985 is REVERSED
and SET ASIDE, and a new one entered ordering public
respondents, the Chairman of the Commission on Audit, the Minister
(now Secretary) of Land Transportation and Communications, the
Regional Director of Telecom Regional Office No. IV, or whoever
may be sitting in office in their stead, to pay the full amount of
petitioner's back salaries from 1 April 1975 to 12 March 1984 based
on his latest salary scale.
SO ORDERED.
G.R. No. 131012. April 21, 1999.*
HON. RICARDO T. GLORIA, in his capacity as Secretary of the
Department of Education, Culture, and Sports, petitioner, vs. COURT
OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS,
ELIZABETH A. SOMEBANG and NICANOR MARGALLO,
respondents.
Administrative Law; Civil Service Law; Public
Officers; Preventive Suspension; Two Kinds.—There are thus two
kinds of preventive suspension of civil service employees who are
charged with offenses punishable by removal or suspension: (1)
preventive suspension pending investigation (§51) and (2) preventive
suspension pending appeal if the penalty imposed by the disciplining
authority is suspension or dismissal and, after review, the respondent
is exonerated (§47[4]).
Same; Same; Same; Same; Preventive suspension pending
investigation is not a penalty—it is a measure intended to enable the
disciplining authority to investigate charges against respondent by
preventing the latter from intimidating or in any way influencing
witnesses against him.—Preventive suspension pending investigation
is not a penalty. It is a measure intended to enable the disciplining
authority to investigate charges against respondent by preventing the
latter from intimidating or in any way influencing witnesses against
him. If the investigation is not finished and a decision is not rendered
within that period, the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he should be reinstated.

Same; Same; Same; Same; Statutory Construction; The
amendment by deletion of certain words or phrases in a statute
indicates that the legislature intended to change the meaning of the
statute.—The Civil Service Act of 1959 (R.A. No. 2260) provided for
the payment of such salaries in case of exoneration. However, the law
was revised in 1975 and the provision on the payment of salaries
during suspension was deleted. Sec. 42 of the Civil Service Decree
(P.D. 807) read: * * * This provision was reproduced in §52 of the
present Civil Service Law. It is noteworthy that the Ombudsman Act
_______________
*EN BANC.
288
288 SUPREME COURT REPORTS
ANNOTATED
Gloria vs. Court of Appeals
of 1989 (R.A. No. 6770) categorically provides that preventive
suspension shall be “without pay.” It is clear that the purpose of the
amendment is to disallow the payment of salaries for the period of
suspension. This conclusion is in accord with the rule of statutory
construction that—As a rule, the amendment by deletion of certain
words or phrases in a statute indicates that the legislature intended to
change the meaning of the statute, for the presumption is that the
legislature would not have made the deletion had the intention been
not in effect a change in its meaning. The amended statute should
accordingly be given a construction different from that previous to its
amendment.
Same; Same; Same; Same; An officer who has been lawfully
suspended from his office pending investigation is not entitled to
compensation for the period during which he was so suspended, even
though it be subsequently determined that the cause for which he was
suspended was insufficient.—The principle governing entitlement to
salary during suspension is cogently stated in Floyd R. Mechem’s A
Treatise on the Law of Public Offices and Officers as follows:
§864. Officer not entitled to Salary during Suspension from Office.—
An officer who has been lawfully suspended from his office is not
entitled to compensation for the period during which he was so
suspended, even though it be subsequently determined that the cause
ADMELEC Cases
235
for which he was suspended was insufficient. The reason given is “that
salary and perquisites are the reward of express or implied services,
and therefore cannot belong to one who could not lawfully perform
such ser-vices.”
Same; Same; Same; Same; It is not enough that an employee is
exonerated of the charges against him—his suspension must be
unjustified.—It is not enough that an employee is exonerated of the
charges against him. In addition, his suspension must be unjustified.
The case of Bangalisan v. Court of Appeals itself similarly states that
“payment of salaries corresponding to the period [1] when an
employee is not allowed to work may be decreed if he is found
innocent of the charges which caused his suspension and [2] when
the suspension is unjustified.”
Same; Same; Same; Same; The preventive suspension of civil
service employees charged with dishonesty, oppression or grave
misconduct, or neglect of duty is authorized by the Civil Service Law,
and cannot, therefore, be considered “unjustified” as it is one of those
sacrifices which holding a public office requires for the public good.—
289
VOL. 306, APRIL 21, 1999 289
Gloria vs. Court of Appeals
The preventive suspension of civil service employees charged
with dishonesty, oppression or grave misconduct, or neglect of duty is
authorized by the Civil Service Law. It cannot, therefore, be
considered “unjustified,” even if later the charges are dismissed so as
to justify the payment of salaries to the employee concerned. It is one
of those sacrifices which holding a public office requires for the public
good. For this reason, it is limited to ninety (90) days unless the delay
in the conclusion of the investigation is due to the employee
concerned. After that period, even if the investigation is not finished,
the law provides that the employee shall be automatically reinstated.
Same; Same; Same; Same; The possibility of abuse is not an
argument against the recognition of the existence of power, but if and
when such abuse occurs, that would be the time for the courts to
exercise their nay-saying function.—Third, it is argued in the separate
opinion that to deny employees salaries on the “frivolous” ground that
the law does not provide for their payment would be to provide a “tool
for the oppression of civil servants who though innocent, may be
falsely charged of grave or less grave administrative offenses.”
Indeed, the possibility of abuse is not an argument against the

recognition of the existence of power. As Justice Story aptly put it, “It
is always a doubtful course, to argue against the use or existence of
a power, from the possibility of its abuse . . . . [For] from the very nature
of things, the absolute right of decision, in the last resort, must rest
somewhere—wherever it may be vested it is susceptible of abuse.” It
may be added that if and when such abuse occurs, that would be the
time for the courts to exercise their nay-saying function. Until taken,
however, the public interest in an upright civil service must be upheld.
Same; Same; Same; Same; Employees who are considered
pre-ventively suspended pending appeal are entitled to payment of
their salaries if they are subsequently found innocent.—But although
we hold that employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if
they are exonerated, we do not agree with the government that they
are not entitled to compensation for the period of their
suspension pending appeal if eventually they are found innocent.
Preventive suspension pending investigation, as already discussed, is
not a penalty but only a means of enabling the disciplining authority to
conduct an unhampered investigation. On the other hand, preventive
suspension pending appeal is actually punitive although it is in effect
sub-
290
290 SUPREME COURT REPORTS
ANNOTATED
Gloria vs. Court of Appeals
sequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he
should be reinstated with full pay for the period of the suspension.
Thus, §47(4) states that respondent “shall be considered as under
preventive suspension during the pendency of the appeal in the event
he wins.” On the other hand, if his conviction is affirmed, i.e., if he is
not exonerated, the period of his suspension becomes part of the final
penalty of suspension or dismissal.
Same; Same; Same; Same; Though an employee is considered
under preventive suspension during the pendency of his appeal, in the
event he wins, his suspension is unjustified because what the law
authorizes is preventive suspension for a period not exceeding 90
days—beyond that period the suspension is illegal.—Nothing in what
has thus far been said is inconsistent with the reason for denying
ADMELEC Cases
236
salaries for the period of preventive suspension. We have said that an
employee who is exonerated is not entitled to the payment of his
salaries because his suspension, being authorized by law, cannot be
unjustified. To be entitled to such compensation, the employee must
not only be found innocent of the charges but his suspension must
likewise be unjustified. But though an employee is considered under
preventive suspension during the pendency of his appeal in the event
he wins, his suspension is unjustified because what the law authorizes
is preventive suspension for a period not exceeding 90 days. Beyond
that period the suspension is illegal. Hence, the employee concerned
is entitled to reinstatement with full pay. Under existing jurisprudence,
such award should not exceed the equivalent of five years pay at the
rate last received before the suspension was imposed.
PANGANIBAN, J., Separate Opinion:
Administrative Law; Civil Service Law; Public
Officers; Preventive Suspension; If, after investigation, the
preventively suspended public employees are found to be innocent or
culpable of lesser offenses not punishable with suspension or
dismissal, they must be immediately reinstated and granted full back
salaries corresponding to the period of their suspension.—The
rationale for the grant of back salaries to suspended public servants
is their exoneration from the charges leveled against them that were
punishable with either dismissal or suspension. Needless to say, only
when the charges carry either of these extreme administrative
penalties may they be preventively suspended pending investigation.
If, after investiga-
291
VOL. 306, APRIL 21, 1999 291
Gloria vs. Court of Appeals
tion, they are found to be innocent or culpable of lesser offenses
not punishable with suspension or dismissal, they must be
immediately reinstated and granted full back salaries corresponding
to the period of their suspension. In the first place, if they have been
found to be not guilty of any offense warranting even just a
suspension, there is no justifiable reason to deprive them of work and
of income therefor. In these cases, their preventive suspension must
be deemed unjustified.

Same; Same; Same; Same; To withhold an exonerated
employee’s pay for such period would in fact transform the nature of
preventive suspension into a penalty—a penalty which is unauthorized
by law, in contravention of the fundamental right of every individual to
due process, and therefore unconstitutional.—The majority admits
that preventive suspension pending investigation is not a penalty, but
is only a means of enabling the disciplining authority to conduct an
unhampered investigation. Not being a penalty, there is therefore NO
reason to deny employees their salaries for such period, especially
after they are proven innocent of any offense punishable with
suspension or dismissal. I respectfully submit that to withhold an
exonerated employee’s pay for such period would in fact transform the
nature of preventive suspension into a penalty—a penalty which is
unauthorized by law, in contravention of the fundamental right of every
individual to due process, and therefore unconstitutional.
Same; Same; Same; Same; Statutory Construction; The
legislative purpose of the present Civil Service Law, which is found in
Executive Order No. 292 issued by then President Corazon Aquino in
the exercise of her legislative powers under the Freedom Constitution,
cannot be clearly established because it has no recorded deliberations
from which to verify such intent.—Significantly, the Civil Service Law
does not state that exonerated employees are not entitled to back
salaries corresponding to the preventive suspension period. Such
silence of the law should not ipso facto be interpreted as a denial of
the right, pursuant to rules on statutory construction. In any event, the
rules on the interpretation of laws are mere tools used to ascertain
legislative intent. They are not necessarily applicable at all times,
particularly when the intention to change the meaning of the previous
law is not clear. In the case of the present Civil Service Law, which is
found in Executive Order No. 292 issued by then President Corazon
Aquino in the exercise of her legislative powers under the Freedom
Constitution, its legislative purpose cannot be clearly established,
because it has no recorded delibera-
292
292 SUPREME COURT REPORTS
ANNOTATED
Gloria vs. Court of Appeals
tions from which to verify such intent. Consequently, we should
not completely rely on the general rule on amendment by deletion. We
ADMELEC Cases
237
should not hold the omission of words in the later statute as
necessarily altering the construction of the earlier one, for we may do
so only “where the intent of the legislature to make such change is
clear of construction.”
Same; Same; Same; Same; To deny to exonerate public
employees their incomes on the frivolous ground that the law does not
expressly provide for the grant thereof would provide a tool for the
oppression of civil servants who, though innocent, may be falsely
charged of grave or less grave administrative offenses.—The grant of
back pay is a matter not merely of compassion and mercy for
employees temporarily suspended from work but, more important, of
justice and equity. The exoneration of the employees proves that there
was no reason at all to suspend them in the first place. To deny them
their incomes on the frivolous ground that the law does not expressly
provide for the grant thereof would provide a tool for the oppression of
civil servants who, though innocent, may be falsely charged of grave
or less grave administrative offenses. It plainly opens the door to
harassment of public officials and employees by unjustly depriving
them of their meager incomes and consequently subjecting them and
their families to difficult circumstances.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Froilan M. Bacungan for private respondents.
MENDOZA, J.:
This case arose out of the unfortunate strikes and walkouts staged by
public school teachers on different dates in September and October
1990. The illegality of the strikes was declared in our 1991 decision
in Manila Public School Teachers Association v. Laguio, Jr.,1 but
many incidents of those
________________
1200 SCRA 323 (1991).
293

VOL. 306, APRIL 21, 1999 293
Gloria vs. Court of Appeals
strikes are still to be resolved. At issue in this case is the right to back
salaries of teachers who were either dismissed or suspended because
they did not report for work but who were eventually ordered reinstated
because they had not been shown to have taken part in the strike,
although reprimanded for being absent without leave.
The facts are as follows:
Private respondents are public school teachers. On various dates
in September and October 1990, during the teachers’ strikes, they did
not report for work. For this reason, they were administratively charged
with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation
of Civil Service Law Rules and Regulations and reasonable office
regulations, (4) refusal to perform official duty, (5) gross
insubordination, (6) conduct prejudicial to the best interest of the
service, and (7) absence without leave (AWOL), and placed under
preventive suspension. The investigation was concluded before the
lapse of their 90-day suspension and private respondents were found
guilty as charged. Respondent Nicanor Margallo was ordered
dismissed from the service effective October 29, 1990, while
respondents Amparo Abad, Virgilia Bandigas, and Elizabeth
Somebang were ordered suspended for six months effective
December 4, 1990.2
Respondent Margallo appealed to the Merit Systems and
Protection Board (MSPB) which found him guilty of conduct prejudicial
to the best interest of the service and imposed on him a six-month
suspension.3 The other respondents also appealed to the MSPB, but
their appeal was dismissed because of their failure to file their appeal
memorandum on time.4
On appeal, the Civil Service Commission (CSC) affirmed the
decision of the MSPB with respect to Margallo, but found the other
three (Abad, Bandigas, and Somebang) guilty only of violation of
reasonable office rules and regulations by failing to file applications for
leave of absence and, therefore,
__________________
2 Decision, pp. 4-5; Rollo, pp. 36-37.
3 Decision, p. 6; Rollo, p. 3-8.
ADMELEC Cases
238
4Supra.
294
294 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
reduced the penalty imposed on them to reprimand and ordered them
reinstated to their former positions.
Respondents filed a petition for certiorari under Rule 65 in this
Court. Pursuant to Revised Administrative Circular No. 1-95, the case
was referred to the Court of Appeals which, on September 3, 1996,
rendered a decision (1) affirming the decision of the CSC with respect
to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2)
reversing it insofar as the CSC ordered the suspension of Nicanor
Margallo. The appellate court found him guilty of violation of
reasonable office rules and regulations only and imposed on him the
penalty of reprimand.5
Private respondents moved for a reconsideration, contending that
they should be exonerated of all charges against them and that they
be paid salaries during their suspension. In its resolution, dated July
15, 1997, the Court of Appeals, while maintaining its finding that
private respondents were guilty of violation of reasonable office rules
and regulations for which they should be reprimanded, ruled that
private respondents were entitled to the payment of salaries during
their suspension “beyond ninety (90) days.” Accordingly, the appellate
court amended the dispositive portion of its decision to read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby
DENIED. CSC Resolution Nos. 93-2302 dated June 24, 1993 and 93-
3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution
Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17,
1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301
undated and 93-3125 dated August 10, 1993 (In re: Elizabeth
Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-
2211 dated June 21, 1993 are hereby MODIFIED finding petitioner
Nicanor Margallo guilty of a lesser offense of violation of reasonable
office rules and regulations and meting upon him the penalty of
reprimand. Respondent DECS is ordered to pay petitioners Amparo
Abad, Virgilia Bandigas, Elizabeth Somebang and Ni-
_________________

5Per Justice Fermin A. Martin, Jr. and concurred in by Justices
Nathanael P. de Pano and Maximiano C. Asuncion.
295
VOL. 306, APRIL 21, 1999 295
Gloria vs. Court of Appeals
canor Margallo their salaries, allowances and other benefits during the
period of their suspension/dismissal beyond the ninety (90) day
preventive suspension. No pronouncement as to costs.6
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and
Sports, moved for a reconsideration insofar as the resolution of the
Court of Appeals ordered the payment of private respondents’ salaries
during the period of their appeal.7 His motion was, however, denied by
the appellate court in its resolution of October 6, 1997.8 Hence, this
petition for review on certiorari.
Petitioner contends that the administrative investigation of
respondents was concluded within the 90-day period of preventive
suspension, implying that the continued suspension of private
respondents is due to their appeal, hence, the government should not
be held answerable for payment of their salaries. Moreover, petitioner
lays so much store by the fact that, under the law, private respondents
are considered under preventive suspension during the period of their
appeal and, for this reason, are not entitled to the payment of their
salaries during their suspension.9
Petitioner’s contentions have no merit.
I. PREVENTIVE SUSPENSION AND THE RIGHT TO
COMPENSATION IN CASE OF EXONERATION
The present Civil Service Law is found in Book V, Title I, Subtitle A of
the Administrative Code of 1987 (E.O. 292). So far as pertinent to the
questions in this case, the law provides:
SEC. 47. Disciplinary Jurisdiction.
....
(2) The Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall have jurisdiction to
___________________
6
Resolution dated July 15, 1997, pp. 8-9; Rollo, pp. 29-30.
7 Petition, Annex D; Rollo, p. 63.
8 Rollo, p. 31.
ADMELEC Cases
239
9Petition, p. 9; Rollo, p. 15.
296
296 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days’ salary. In
case the decision rendered by a bureau or office head is appealable
to the Commission, the same may be initially appealed to the
department and finally to the Commission and pending appeal, the
same shall be executory except when the penalty is removal, in which
case the same shall be executory only after confirmation by the
Secretary concerned.
....
(4) An appeal shall not stop the decision from being executory, and
in case the penalty is suspension or removal, the respondent shall be
considered as having been under preventive suspension during the
pendency of the appeal in the event he wins an appeal.
SEC. 51. Preventive Suspension.—The proper disciplining
authority may preventively suspend any subordinate officer or
employee under his authority pending an investigation, if the charge
against such officer or employee involves dishonesty, oppression or
grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would
warrant his removal from the service.
SEC. 52. Lifting of Preventive Suspension Pending Administrative
Investigation.—When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date
of suspension of the respondent who is not a presidential appointee,
the respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition of the case
is due to the fault, negligence or petition of the respondent, the period
of delay shall not be counted in computing the period of suspension
herein provided.
There are thus two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or
suspension: (1) preventive suspension pending investigation (§51)
and (2) preventive suspension pending appeal if the penalty imposed

by the disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated (§47[4]).
297
VOL. 306, APRIL 21, 1999 297
Gloria vs. Court of Appeals
Preventive suspension pending investigation is not a penalty.10 It is a
measure intended to enable the disciplining authority to investigate
charges against respondent by preventing the latter from intimidating
or in any way influencing witnesses against him. If the investigation is
not finished and a decision is not rendered within that period, the
suspension will be lifted and the respondent will automatically be
reinstated. If after investigation respondent is found innocent of the
charges and is exonerated, he should be reinstated.
A. No Right to Compensation for Preventive Suspension Pending
Investigation Even if Employee is Exonerated
Is he entitled to the payment of salaries during the period of
suspension? As already stated, the Court of Appeals ordered the
DECS to pay private respondents their salaries, allowances, and other
benefits “beyond the ninety (90) day preventive suspension.” In other
words, no compensation was due for the period of the preventive
suspension pending investigation but only for the period of preventive
suspension pending appeal in the event the employee is exonerated.
The separate opinion of Justice Panganiban argues that the
employee concerned should be paid his salaries after his suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for the
payment of such salaries in case of exoneration. Sec. 35 reads:
_____________________
10Thus, Rule XIV of the Implementing Rules of the Civil Service
Commission provides in pertinent parts:
SEC. 24. Preventive suspension is not a punishment or penalty for
misconduct in office but is considered to be a preventive measure.
SEC. 25. The period within which a public officer or employee
charged is placed under preventive suspension shall not be
considered part of the actual penalty of suspension imposed upon the
employee found guilty.
298
298 SUPREME COURT REPORTS ANNOTATED
ADMELEC Cases
240
Gloria vs. Court of Appeals
SEC. 35. Lifting of Preventive Suspension Pending Administrative
Investigation.—When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
Commissioner of Civil Service within the period of sixty (60) days after
the date of suspension of the respondent, the respondent shall be
reinstated in the service. If the respondent officer or employee is
exonerated, he shall be restored to his position with full pay for the
period of suspension.11
However, the law was revised in 1975 and the provision on the
payment of salaries during suspension was deleted. Sec. 42 of the
Civil Service Decree (P.D. No. 807) reads:
SEC. 42. Lifting of Preventive Suspension Pending Administrative
Investigation.—When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date
of suspension of the respondent who is not a presidential appointee,
the respondent shall be automatically reinstated in the
service; Provided, That when the delay in the disposition of the case
is due to the fault, negligence or petition of the respondent, the period
of delay shall not be counted in computing the period of suspension
herein provided.
This provision was reproduced in §52 of the present Civil Service Law.
It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770)
categorically provides that preventive suspension shall be “without
pay.” Sec. 24 reads:
SEC. 24. Preventive Suspension.—The Ombudsman or his Deputy
may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the
service; or (c) the respondent’s continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six
_________________
11 Emphasis added.

299
VOL. 306, APRIL 21, 1999 299
Gloria vs. Court of Appeals
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.
It is clear that the purpose of the amendment is to disallow the
payment of salaries for the period of suspension. This conclusion is in
accord with the rule of statutory construction that—
As a rule, the amendment by deletion of certain words or phrases in a
statute indicates that the legislature intended to change the meaning
of the statute, for the presumption is that the legislature would not have
made the deletion had the intention been not in effect a change in its
meaning. The amended statute should accordingly be given a
construction different from that previous to its amendment.12
The separate opinion of Justice Panganiban pays no heed to the
evident legislative intent to deny payment of salaries for the preventive
suspension pending investigation.
First, it says that to deny compensation for the period of preventive
suspension would be to reverse the course of decisions ordering the
payment of salaries for such period. However, the cases 13 cited are
based either on the former rule
______________________
12 RUBEN AGPALO, STATUTORY CONSTRUCTION 76-77
(1990).
13 Miranda v. Commission on Audit, 200 SCRA
657 (1991); Bangalisan v. Court of Appeals, 276 SCRA
619 (1997); Jacinto v. Court of Appeals, 281 SCRA 657 (1997);
and Garcia v. Commission on Audit, 226 SCRA 356 (1993).
In Miranda v. Commission on Audit, supra, although the facts
arose when P.D. No. 807 was already in effect, the Court ordered
payment of “backwages” during the period of preventive suspension
citing as authority the case of Abellera v. City of Baguio, 125 Phil.
1035 (1967). However, in Abellera the Court allowed recovery of
ADMELEC Cases
241
salaries only for the time that the employee was suspended pending
appeal. No compensation was paid for the period of suspension
300
300 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
which expressly provided that “if the respondent officer or employee
is exonerated, he shall be restored to his position with full pay for the
period of suspension”14 or that “upon subsequent reinstatement of the
suspended person or upon his exoneration, if death should render
reinstatement impossible, any salary so withheld shall be paid,” 15 or
on cases which do not really support the proposition advanced.
Second, it is contended that the exoneration of employees who
have been preventively suspended is proof that there was
__________________
pending investigation. The employee in that case was preventively
suspended from January 18, 1960 to May 24, 1960. As the
investigation lasted more than 90 days, he was reinstated in office. He
was later found guilty and ordered dismissed from the service effective
July 10, 1961. On appeal to the Civil Service Board of Appeals, the
penalty was reduced to two months suspension without pay and he
was finally reinstated on November 11, 1963. The employee’s
suspension from office from July 10, 1961 to November 10, 1963 was
held to be unjustified and he was ordered paid his salaries for that
period. But no award for the period of preventive suspension from
January 18, 1960 to May 24, 1960 was granted.
In Bangalisan v. Court of Appeals, supra, this Court held that the
payment of salaries for the period during which an employee is
suspended may be decreed if he is found innocent of the charges
which caused the suspension and when the suspension is unjustified,
citing the cases of Miranda v. Commission on Audit, supra,
and Abellera v. City of Baguio, supra, which, as noted, did not really
allow compensation for the period of preventive suspension. On the
other hand, the other case cited, Tañala v. Legaspi, 121 Phil.
541 (1965), was decided under §260 of the Administrative Code of
1917, which unlike the present law, provided for the payment of back
salaries for the period of preventive suspension.

In Jacinto v. Court of Appeals, supra, the award of back salaries in
favor of petitioner Jacinto was based on the ruling in Bangalisan as
above summarized. The decision in that case is, therefore, subject to
the sound observation made on the decision in Bangalisan. On the
other hand, the case of Garcia v. Chairman, Commission on Audit,
supra, did not involve any question on suspension—preventive or
otherwise.
14 R.A. No. 2260, §35.
15 ADMINISTRATIVE CODE OF 1917, §260.
301
VOL. 306, APRIL 21, 1999 301
Gloria vs. Court of Appeals
no reason at all to suspend them and thus makes their preventive
suspension a penalty.
The principle governing entitlement to salary during suspension is
cogently stated in Floyd R. Mechem’s A Treatise on the Law of Public
Offices and Officers as follows:
§864. Officer not entitled to Salary during Suspension from Office.—
An officer who has been lawfully suspended from his office is not
entitled to compensation for the period during which he was so
suspended, even though it be subsequently determined that the cause
for which he was suspended was insufficient. The reason given is “that
salary and perquisites are the reward of express or implied services,
and therefore cannot belong to one who could not lawfully perform
such services.”16
Thus, it is not enough that an employee is exonerated of the charges
against him. In addition, his suspension must be unjustified. The case
of Bangalisan v. Court of Appeals itself similarly states that “payment
of salaries corresponding to the period [1] when an employee is not
allowed to work may be decreed if he is found innocent of the charges
which caused his suspension and [2] when the suspension is
unjustified.”17
The preventive suspension of civil service employees charged with
dishonesty, oppression or grave misconduct, or neglect of duty is
authorized by the Civil Service Law. It cannot, therefore, be
considered “unjustified,” even if later the charges are dismissed so as
to justify the payment of salaries to the employee concerned. It is one
of those sacrifices which holding a public office requires for the public
good. For this reason, it is limited to ninety (90) days unless the delay
in the conclusion of the investigation is due to the employee
ADMELEC Cases
242
concerned. After that period, even if the investigation is not finished,
the law provides that the employee shall be automatically reinstated.
Third, it is argued in the separate opinion that to deny employees
salaries on the “frivolous” ground that the law does
___________________
16Emphasis added.
17276 SCRA at 631.
302
302 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
not provide for their payment would be to provide a “tool for the
oppression of civil servants who, though innocent, may be falsely
charged of grave or less grave administrative offenses.” Indeed, the
possibility of abuse is not an argument against the recognition of the
existence of power. As Justice Story aptly put it, “It is always a doubtful
course, to argue against the use or existence of a power, from the
possibility of its abuse . . . . [For] from the very nature of things, the
absolute right of decision, in the last resort, must rest somewhere—
wherever it may be vested it is susceptible of abuse.” 18 It may be
added that if and when such abuse occurs, that would be the time for
the courts to exercise their nay-saying function. Until then, however,
the public interest in an upright civil service must be upheld.
Finally, it is argued that even in the private sector, the law provides
that employees who are unjustly dismissed are entitled to
reinstatement with full pay. But that is because R.A. No. 6715
expressly provides for the payment to such employees of “full
backwages, inclusive of allowances, and . . . other benefits or their
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement.”19 In the
case of the public sector, as has been noted, the provision for payment
of salaries during the preventive suspension pending investigation has
been deleted.
B. Right to Compensation for Preventive Suspension Pending
Appeal if Employee is Exonerated
But although we hold that employees who are preventively
suspended pending investigation are not entitled to the payment of
their salaries even if they are exonerated, we do not agree with the

government that they are not entitled to compensation for the period
of their suspension pending appeal if eventually they are found
innocent.
_________________
18Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304 (1816).
19
LABOR CODE, ART. 279.
303
VOL. 306, APRIL 21, 1999 303
Gloria vs. Court of Appeals
Preventive suspension pending investigation, as already discussed, is
not a penalty but only a means of enabling the disciplining authority to
conduct an unhampered investigation. On the other hand, preventive
suspension pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he
should be reinstated with full pay for the period of the suspension.
Thus, §47(4) states that respondent “shall be considered as under
preventive suspension during the pendency of the appeal in the event
he wins.” On the other hand, if his conviction is affirmed, i.e., if he is
not exonerated, the period of his suspension becomes part of the final
penalty of suspension or dismissal.
It is precisely because respondent is penalized before his
sentence is confirmed that he should be paid his salaries in the event
he is exonerated. It would be unjust to deprive him of his pay as a
result of the immediate execution of the decision against him and
continue to do so even after it is shown that he is innocent of the
charges for which he was suspended. Indeed, to sustain the
government’s theory would be to make the administrative decision not
only executory but final and executory. The fact is that §47(2) and (4)
are similar to the execution of judgment pending appeal under Rule
39, §2 of the Rules of Court. Rule 39, §5 provides that in the event the
executed judgment is reversed, there shall be restitution or reparation
of damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision
meting out the penalty of suspension or dismissal shall be immediately
executory and that if the respondent appeals he shall be considered
as being merely under preventive suspension if eventually he prevails
ADMELEC Cases
243
is taken from §37 of the Civil Service Decree of 1975 (P.D. No. 807).
There was no similar provision in the Civil Service Act of 1959 (R.A.
No. 2260), although under it the Commissioner of Civil Service could
order the immediate execution of an administrative
304
304 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
decision in the interest of the public service.20 Nor was there provision
for immediate execution of administrative decisions ordering dismissal
or suspension in §695 of the Administrative Code of 1917, as
amended by C.A. No. 598, §1. 21 Nonetheless, under R.A. No. 2260
the payment of salaries was ordered in cases in which employees
were found to be innocent of the charges22 or their suspension was
held to be unjustified, because the penalty of suspension or dismissal
was executed without a finding by the Civil Service Commissioner that
it was necessary ‘‘in the interest of the public service.’’23 On the other
hand, payment of back salaries was denied where it was shown that
the employee concerned was guilty as charged and the immediate
execution of the decision was ordered by the Civil Service
Commissioner “in the interest of the public service.”24
Nothing in what has thus far been said is inconsistent with the
reason for denying salaries for the period of preventive suspension.
We have said that an employee who is exonerated is not entitled to
the payment of his salaries because his suspension, being authorized
by law, cannot be unjustified. To be entitled to such compensation, the
employee must not only be found innocent of the charges but his
suspension must likewise be unjustified. But though an employee is
considered under preventive suspension during the pendency of his
appeal in the event he wins, his suspension is unjustified because
what the law authorizes is preventive suspension for a period not
exceeding 90 days. Beyond that period the suspension is illegal.
Hence, the employee concerned is entitled to
___________________
20 Yarcia v. City of Baguio, 144 Phil. 351 (1970); Abellera v. City of
Baguio, supra.
21 What it provided was that the decision of the Commissioner of
Civil Service may be appealed to the Civil Service Board of Appeals

whose decisions shall be final unless reversed or modified by the
President.
22 Tañala v. Legaspi, supra.
23 Abellera v. City of Baguio, supra.
24 Yarcia v. City of Baguio, supra; Villamor v. Lacson, 120 Phil.
1213 (1964).
305
VOL. 306, APRIL 21, 1999 305
Gloria vs. Court of Appeals
reinstatement with full pay. Under existing jurisprudence, such award
should, not exceed the equivalent of five years pay at the rate last
received before the suspension was imposed.25
II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES
ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE RULES
AND REGULATIONS AND REPRIMANDED
Private respondents were exonerated of all charges against them for
acts connected with the teachers’ strike of September and October
1990. Although they were absent from work, it was not because of the
strike. For being absent without leave, they were held liable for
violation of reasonable office rules and regulations for which the
penalty is a reprimand. Their case thus falls squarely within ruling
in Bangalisan, which likewise involved a teacher found guilty of having
violated reasonable office rules and regulations. Explaining the grant
of salaries during their suspension despite the fact that they were
meted out reprimand, this Court stated:
___________________
25 Miranda v. Commission on Audit, supra at 662
(1991), citing Gabriel v. Domingo, 189 SCRA 672 (1990); Rubio v.
PHHC, 185 SCRA 656 (1990); Gementiza v. Court of Appeals, 113
SCRA 477 (1982); Balquiedra v. CFI of Capiz, 80 SCRA
123 (1977); Cristobal v. Melchor, 78 SCRA 175 (1977).
Justice Panganiban contends that since the rule limiting recovery
of salaries to five years is based on the rule in private employment, in
cases of illegal dismissal, the rule applicable to government
employment should now be changed because Art. 279 of the Labor
Code, as amended by R.A. No. 6715, has removed the limitation and
now allows recovery of “full backwages, inclusive of allowances, and
ADMELEC Cases
244
to his other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of his
actual reinstatement.” As long as the rule was based on caselaw, the
contention would be plausible. But the change in the labor law was
made by statute and courts cannot simply apply the statute to
government employment without amending that statute.
306
306 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
With respect to petitioner Rodolfo Mariano, payment of his backwages
is in order. A reading of the resolution of the Civil Service Commission
will show that he was exonerated of the charges which formed the
basis for his suspension. The Secretary of the DECS charged him with
and he was later found guilty of grave misconduct, gross neglect of
duty, gross violation of the Civil Service Law, rules and regulations
and reasonable office regulations, refusal to perform official duty,
gross insubordination, conduct prejudicial to the best interest of the
service, and absence without official leave, for his participation in the
mass actions on September 18, 20 and 21, 1990. It was his alleged
participation in the mass actions that was the basis of his preventive
suspension and, later, his dismissal from the service.
However, the Civil Service Commission, in the questioned
resolution, made a finding that Mariano was not involved in the “mass
actions” but was absent because he was in Ilocos Sur to attend the
wake and interment of his grandmother. Although the CSC imposed
upon him the penalty of reprimand, the same was for his violation of
reasonable office rules and regulations because he failed to inform the
school of his intended absence and neither did he file an application
for leave covering such absences.
Under Section 23 of the Rules Implementing Book V of Executive
Order No. 292 and other pertinent civil service laws, in violations of
reasonable office rules and regulations, the first offense is punishable
by reprimand. To deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after his
exoneration from the charges which caused his dismissal from the
service.26
In Jacinto v. Court of Appeals,27 a public school teacher who was
found guilty of violation of reasonable office rules and regulations for
having been absent without leave and reprimanded was given back

salaries after she was exonerated of the charge of having taken part
in the strikes.
Petitioner Secretary of Education contends, however, that
respondents Abad, Bandigas, and Somebang signed a letter in which
they admitted having taken part in the mass action.
____________________
26276 SCRA at 631-632.
27
281 SCRA 657 (1997).
307
VOL. 306, APRIL 21, 1999 307
Gloria vs. Court of Appeals
This question cannot be raised now. The Civil Service Commission
gave no weight to this letter in view of individual letters written by the
three citing reasons for their absences, to wit: Abad, because she
decided to stay home to correct student papers; Bandigas, because
she had to accompany her brother to the Commission on Immigration,
and Somebang, because of “economic reasons.” Petitioner did not
appeal from this ruling. Hence, he is bound by the factual findings of
the CSC and the appellate court.
WHEREFORE, the decision, dated September 3, 1996, as
amended by the resolutions, dated July 15, 1997 and October 6, 1997,
of the Court of Appeals, is hereby AFFIRMED with the
MODIFICATION that the award of salaries to private respondents
shall be computed from the time of their dismissal/suspension by the
Department of Education, Culture, and Sports until their actual
reinstatement, for a period not exceeding five years.
SO ORDERED.
Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Puri-
sima and Gonzaga-Reyes, JJ., concur.
Davide, Jr. (C.J.), In the result and subject to the modification
expurred in the separate opinion of Mr. Justice Panganiban.
Melo, J., In the result.
Puno, Pardo, Buena and Ynares-Santiago, JJ., Join in the
separate opinion of Justice Panganiban.
Panganiban, J., Please see Separate Opinion.
ADMELEC Cases
245
SEPARATE OPINION
PANGANIBAN, J.:
I concur with the ponencia insofar as it denies the petition and affirms
the Court of Appeals Decision and Resolutions finding private
respondents guilty only of a violation of office
308
308 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
rules and regulations, meting upon them the penalty of reprimand and
reinstating them in the civil service.
I beg to disagree, however, insofar as it deprives private
respondents their back salaries corresponding to the entire period of
their preventive suspension.
Private Respondents Liable
for Violation of Reasonable Office Rules and Regulations
Like the majority, I do not find any reversible error or abuse of
discretion in the factual finding of the Court of Appeals that private
respondents did not actually participate in the September 1991 mass
actions staged in violation of law by various public schoolteachers.
They were, however, found to have absented themselves from their
classes without filing an application for leave of absence. For this
lapse, they indeed deserve a reprimand, pursuant to Section 23, Rule
XIV (Discipline) of the Rules Implementing the Civil Service Law, as
well as existing jurisprudence which I shall cite later.
Private Respondents Entitled
to Back Salaries Without Qualification or Deduction
Mr. Justice Mendoza’s ponencia defines two kinds of preventive
suspension for civil service employees charged with offenses
punishable with removal or suspension: “(1) preventive suspension
pending investigation (§51) and (2) preventive suspension pending
appeal if the penalty imposed by the disciplining authority is
suspension or dismissal but, after review, the respondent is
exonerated (§47[4]).”1
Accordingly, the esteemed justice makes a distinction in the grant
of back salaries. In the first instance, he says, the suspended

employees (pending investigation), are NOT entitled to back pay,
regardless of whether they are eventually
___________________
1Main Decision, p. 6.
309
VOL. 306, APRIL 21, 1999 309
Gloria vs. Court of Appeals
exonerated from the charges for which they were investigated.
However, if and when they are exonerated after appeal, they may be
granted back salaries, but only those corresponding to the appeal or
review period until actual reinstatement, and not exceeding five years.
This stance being adopted by the majority reverses several
unanimous en banc decisions, in which this Court ordered payment of
back salaries without qualification or deduction. In Miranda v.
Commission on Audit,2 the Court, noting that the applicable law
mandated that preventive suspension should not be longer than 90
days, deemed Miranda’s suspension for almost eight (8) years
unreasonable and unjustified. It thus resolved that he was entitled to
back wages for the period of his suspension not exceeding five (5)
years, consistent with existing jurisprudence.3
_____________________
2 200 SCRA 657, 662, August 16, 1991, per Paras, J.
3 I believe that this five-year limitation on back salaries of civil
servants should be reexamined. This restriction has no statutory
basis. Rather, it was founded on the old Mercury Drug rule limiting
back wages to illegally dismissed employees in the private sector. As
the Court, through Justice Cecilia Muñoz Palma, then held in Cristobal
v. Melchor (78 SCRA 175, 187, July 29, 1977; citing Mercury Drug
Co., Inc. v. CIR, [56 SCRA 694, April 30, 1974]):
“Applying by analogy the rulings of this court in the matter of fixing
backwages to employees who were victims of unfair labor practices of
their employers, so as to obviate the necessity of a hearing on the
point and avoid further delay, and considering the lapse of almost nine
years before appellant filed this suit. We resolve to grant back salaries
ADMELEC Cases
246
at the rate last received by him only for a period of five (5) years
without qualification and deduction.”
However, the limitation on back wages in the private sector has
been deleted, by virtue of Sec. 34 of RA 6715, amending Art. 279 of
the Labor Code, which now reads:
“ART. 279. Security of Tenure. x x x An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive
of allowances and to his other benefits or their monetary equivalent
computed from the time
310
310 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
In Bangalisan v. Court of Appeals,4 the Court ordered that Petitioner
Mariano “be given back wages without deduction or qualification from
the time he was suspended until his actual reinstatement which, under
prevailing jurisprudence, should not exceed five years.” The Court
ruled: “To deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after his
exoneration from the charges which [had] caused his dismissal from
the service.”5
The same rationale was given in Jacinto v. Court of Appeals,” in
which we also Petitioner Jacinto “back wages, without deduction or
qualification, from the time she was sus-
__________________
his compensation was withheld from him up to the time of his
actual reinstatement.” Hence, we ruled in Bustamante v.
NLRC (infra, pp. 70-71; per Padilla, J.):
“x x x The clear legislative intent of the amendment in Rep. Act No
6715 is to give more benefits to workers than was previously given
them under the Mercury Drug rule or the ‘deduction of earnings
elsewhere’ rule. Thus, a closer adherence to the legislative policy
behind Rep Act No 6715 points to ‘full backwages’ as meaning exactly
that, i.e. without deducting the earnings derived elsewhere by the
concerned employee during the period of his illegal dismissal. In other
words, the provision calling for ‘full backwages’ to illegally dismissed
employees is clear, plain and free from ambiguity and, therefore, must

be applied without attempted or strained interpretation. Index animi
sermo est.
“Therefore, in accordance with R.A. No. 6715 petitioners are
entitled to their full backwages, inclusive of allowances and other
benefits or their monetary equivalent, from the time their actual
compensation was withheld from them up to the time of their actual
reinstatement.
This being the case, I believe that civil service employees should
also be granted the same benefit of full back wages without
qualification or deduction. The matter, however, has not been raised
as an issue in the present Petition. Hence, although I mentioned it
during the Court’s deliberation, the question could not be ruled upon
without violating the fundamental tenets of due process.
4 276 SCRA 619, 634, July 31, 1997, per Regalado, J.
5 At p. 632.
311
VOL. 306, APRIL 21, 1999 311
Gloria vs. Court of Appeals
pended until her actual reinstatement, the total of which, under
prevailing jurisprudence, should not exceed five years.”
In fact, in Garcia v. Chairman, Commission on Audit,6 where the
petitioner, several years after he had been summarily dismissed from
the government service purportedly for dishonesty, was granted
executive clemency “not because of lack of sufficient proof of his
commission of the offense but x x x, more importantly, he did not
commit the offense charged,” the Court found it “fair and just to award
petitioner full back wages from 1 April 1975 when he was illegally
dismissed, to 12 March 1984 when he was reinstated, x x x without
deduction or qualification.” Empathizing with petitioner, the Court
held:7
“x x x Verily, law, equity and justice dictate that petitioner be afforded
compassion for the embarrassment, humiliation and, above all,
injustice caused to him and his family by his unfounded dismissal. This
Court cannot help surmising the painful stigma that must have caused
petitioner, the incursion on his dignity and reputation, for having been
adjudged, albeit wrongfully, a dishonest man x x x.”
Indeed, where the suspension of civil servants has, from the very
beginning, no reason other than to ensure an unhampered
investigation, there is no justification for withholding their salaries,
whether immediately upon investigation or after appeal or petition for
ADMELEC Cases
247
review, much less after their exoneration. They need not even be
found fully innocent of any misdemeanor, as the public schoolteachers
concerned in Bangalisan and Jacinto who were actually found to have
violated reasonable office rules and regulations. Such administrative
offense, however, is punishable with reprimand only, not suspension
or dismissal. Hence, they were granted their back salaries for the
period of their suspension, because they had not committed any grave
act warranting their suspension.
___________________
6226 SCRA 356, September 14, 1993, per Bellosillo, J.
7At p. 365.
312
312 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
The rationale for the grant of back salaries to suspended public
servants is their exoneration from the charges leveled against them
that were punishable with either dismissal or suspension. Needless to
say, only when the charges carry either of these extreme
administrative penalties may they be preventively suspended pending
investigation. If, after investigation, they are found to be innocent or
culpable of lesser offenses not punishable with suspension or
dismissal, they must be immediately reinstated AND granted full back
salaries corresponding to the period of their suspension. In the first
place, if they have been found to be not guilty of any offense
warranting even just a suspension, there is no justifiable reason to
deprive them of work and of income therefor. In these cases, their
preventive suspension must be deemed unjustified.
The majority admits that preventive suspension pending
investigation is not a penalty, but is only a means of enabling the
disciplining authority to conduct an unhampered investigation. 8 Not
being a penalty, there is therefore NO reason to deny employees their
salaries for such period, especially after they are proven innocent of
any offense punishable with suspension or dismissal. I respectfully
submit that to withhold an exonerated employee’s pay for such period
would in fact transform the nature of preventive suspension into a
penalty—a penalty which is unauthorized by law, in contravention of

the fundamental right of every individual to due process, and therefore
unconstitutional.
The “no-work-no-pay” principle should not be applied in these
cases. We must consider that, ordinarily, suspended employees are
willing to work, but they do not have a choice. Because of some
serious charges leveled against them, they are not allowed to report
for work. Investigations may take up to ninety (90) days or three (3)
months. In the meantime, they do not receive their salaries and other
benefits. And yet, the charges against them may have been baseless
or aggravated without good reason, in which case their suspensions
are
__________________
8Main Decision, pp. 6-7.
313
VOL. 306, APRIL 21, 1999 313
Gloria vs. Court of Appeals
unjustified ab initio. In these instances, I repeat, it is but right to grant
them full back pays.
Admittedly, the purpose behind preventive suspensions pending
investigation is noble. It is intended to enable the disciplining
authorities or the investigating officials to probe the charges against
respondents by preventing the latter from intimidating or in any way
influencing witnesses against them.9 But, I submit, it would be totally
unfair to respondents who are undeserving of the penalty of
suspension or dismissal to be deprived of their salaries for such
period. To repeat, they cannot be faulted for not rendering any work
during the period of preventive suspension, because that is merely
what the law mandates.
Significantly, the Civil Service Law does not state that exonerated
employees are not entitled to back salaries corresponding to the
preventive suspension period. Such silence of the law should not ipso
facto be interpreted as a denial of the right, pursuant to rules on
statutory construction. In any event, the rules on the interpretation of
laws are mere tools used to ascertain legislative intent. 10 They are not
necessarily applicable at all times, particularly when the intention to
change the meaning of the previous law is not clear. In the case of the
present Civil Service Law, which is found in Executive Order No. 292
ADMELEC Cases
248
issued by then President Corazon Aquino in the exercise of her
legislative powers under the Freedom Constitution, its legislative
purpose cannot be clearly established, because it has no recorded
deliberations from which to verify such intent. Consequently, we
should not completely rely on the general rule on amendment by
deletion.11 We should not hold the omission of words in the later
statute as necessarily altering the construction of the earlier one, for
we may do so only “where the intent of the legislature to make such
change is clear of construction.”12
____________________
9 Ibid., p. 6.
10 Ruben E. Agpalo, Statutory Construction, 1990 ed., p. 35.
11 Ibid., pp. 76-77.
12 Ibid., p. 78.
314
314 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
In any event, in the absence of an express prohibition on the payment
of back salaries, any doubt should be settled in favor of the employee.
As our fundamental law explicitly mandates, “The State shall afford full
protection to labor x x x.”13 This Court has invariably declared that it
will not hesitate to tilt the scales of justice in favor of the working class,
for the Constitution dictates that “the State x x x shall protect the rights
of workers and promote their welfare.”14 There is no reason not to
apply this principle in favor of civil service employees as well, for they
are very much part of the working class. And the government as their
employer should set the example in upholding the constitutional
mandate to safeguard their rights and interests.
Needless to say, our Constitution stands above all laws; more so,
above any treatise including that of Mechem which the ponencia cites.
The interpretation of general laws on public officers in foreign
jurisdictions has no application in the present case, as our law has no
explicit injunction against the payment of back salaries for preventively
suspended employees. Moreover, the United States Constitution
provides no express mandate, similar to that found in our Constitution,
to “afford full protection to labor” and to “protect the rights of workers
and promote their welfare.”

The grant of back pay is a matter not merely of compassion and
mercy for employees temporarily suspended from work but, more
important, of justice and equity. The exoneration of the employees
proves that there was no reason at all to suspend them in the first
place. To deny them their incomes on the frivolous ground that the law
does not expressly provide for the grant thereof would provide a tool
for the oppression of civil servants who, though innocent, may be
falsely charged of grave or less grave administrative offenses. It
plainly opens
____________________
13§ 3, par. 1, Art. XIII, Constitution.
14§ 18, Art. II, ibid.; Bataan Shipyard & Engineering Corp. v.
NLRC, 269 SCRA 199, March 4, 1997; Philippine Airlines, Inc. v.
Santos, Jr., 218 SCRA 415, February 4, 1993; Holiday Inn Manila v.
NLRC, 226 SCRA 417, September 14, 1993.
315
VOL. 306, APRIL 21, 1999 315
Gloria vs. Court of Appeals
the door to harassment of public officials and employees by unjustly
depriving them of their meager incomes and consequently subjecting
them and their families to difficult circumstances.
Even in the private sector, the law and the existing jurisprudence
grant employees who are unjustly dismissed from work not only
reinstatement without loss of seniority rights and other privileges, but
also full back wages, inclusive of allowances and other benefits or
their monetary equivalent, computed from the time their compensation
was withheld from them up to the time they were actually reinstated.15
Civil Service Law Different from Ombudsman Act
In this regard, I believe the Civil Service Law should be distinguished
from the Ombudsman Act (RA 6770) which categorically and
expressly provides that the suspended employee who is exonerated
after preventive suspension is entitled to reinstatement, but not back
salaries, viz.:
“SEC. 24. Preventive suspension.—The Ombudsman or his Deputy
may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee involves
ADMELEC Cases
249
dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the
service; or (c) the respondent’s continued stay in office may prejudice
the case filed against him.
“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.” (Emphasis supplied.)
__________________
15 Art. 279, Labor Code, as amended by RA 6715; Bustamante v.
NLRC, 265 SCRA 61, November 28, 1996; PLDT v. NLRC, 276
SCRA 462, July 31, 1997.
316
316 SUPREME COURT REPORTS ANNOTATED
Gloria vs. Court of Appeals
Hence, in Callanta v. Ombudsman,16 although some of the petitioners
were only reprimanded by the Court for violation of the Ethical
Standards Law, no back pay was awarded.
WHEREFORE, I vote to DENY the petition and to GRANT private
respondents full back salaries, without qualification or deduction, from
the time of suspension, including the period of preventive suspension,
until actual reinstatement.
Judgment affirmed with modification.
G.R. No. 178021. January 31, 2012.*
REPUBLIC OF THE PHILIPPINES, represented by the CIVIL
SERVICE COMMISSION, petitioner, vs. MINERVA M.P. PACHEO,
respondent.

Administrative Law; Civil Service; Public Officers; Transfers;
Reassignments; While a temporary transfer or assignment of
personnel is permissible even without the employee’s prior consent, it
cannot be done when the transfer is a preliminary step toward his
removal, or a scheme to lure him away from his permanent position,
or when it is designed to indirectly terminate his service, or force his
resignation.—While a temporary transfer or assignment of personnel
is permissible even without the employee’s prior consent, it cannot be
done when the transfer is a preliminary step toward his removal, or a
scheme to lure him away from his permanent position, or when it is
designed to indirectly terminate his service, or force his resignation.
Such a transfer would in effect circumvent the provision which
safeguards the tenure of office of those who are in the Civil Service.
Same; Same; Same; Termination of Employment; Constructive
Dismissals; Constructive dismissal is a situation when an employee
quits his work because of the agency head’s unreasonable,
humiliating, or demeaning actuations which render continued work
impossible.—Section 6, Rule III of CSC Memorandum Circular No. 40,
series of 1998, defines constructive dismissal as a situation when an
employee quits his work because of the agency head’s unreasonable,
humiliating, or demeaning actuations which render continued work
impossible. Hence, the employee is deemed to have been illegally
dismissed. This may occur although there is no diminution or reduction
of salary of the employee. It may be a transfer from one position of
dignity to a more servile or menial job.
Same; Same; Same; “Detail,” Defined; Words and Phrases.—
A detail is defined and governed by Executive Order 292, Book V, Title
1, Subtitle A, Chapter 5, Section 26 (6), thus: (6) Detail. A detail is the
movement of an employee from one agency to another without the
issuance of an appointment and shall be allowed, only for a limited
period in the case of employees occupying professional, technical and
scientific positions. If the employee believes that there is no
justification for the detail, he may appeal his case to the
_______________
* EN BANC.
498
498 SUPREME COURT REPORTS
ANNOTATED
ADMELEC Cases
250
Republic vs. Pacheo
Commission. Pending appeal, the decision to detail the
employee shall be executory unless otherwise ordered by the
Commission.
Same; Same; Same; “Reassignment,” Defined; Words and
Phrases.—A reassignment is defined and governed by E.O. 292,
Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7), thus: (7)
Reassignment.—An employee may be reassigned from one
organizational unit to another in the same agency; Provided, That
such reassignment shall not involve a reduction in rank, status or
salaries.
Same; Same; Same; Same; Reassignments involving a
reduction in rank, status or salary violate an employee’s security of
tenure, which is assured by the Constitution, the Administrative Code
of 1987, and the Omnibus Civil Service Rules and Regulations.—
Reassignments involving a reduction in rank, status or salary violate
an employee’s security of tenure, which is assured by the Constitution,
the Administrative Code of 1987, and the Omnibus Civil Service Rules
and Regulations. Security of tenure covers not only employees
removed without cause, but also cases of unconsented transfers and
reassignments, which are tantamount to illegal/constructive removal.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Antonio P. Pacheo for respondent.
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule
45 of the Rules of Court filed by petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG), which
assails the February 22, 2007 Decision1 and the May 15, 2007
Resolu-
_______________
1 Rollo, pp. 59-70. Penned by Associate Justice Magdangal M. De
Leon with Associate Justice Rebecca De Guia-Salvador and
Associate Justice Ricardo R. Rosario, concurring.
499

VOL. 664, JANUARY 31, 2012 499
Republic vs. Pacheo
tion2 of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA
reversed the November 21, 2005 Resolution of the Civil Service
Commission (CSC) declaring the re-assignment of respondent
Minerva M.P. Pacheo (Pacheo) not valid and ordering her
reinstatement to her original station but without backwages under the
principle of “no work, no pay.”
The Facts
Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal
Division of the Bureau of Internal Revenue (BIR) in Revenue Region
No. 7 (RR7), Quezon City.
On May 7, 2002, the BIR issued Revenue Travel Assignment
Order (RTAO) No. 25-2002,3 ordering the reassignment of Pacheo as
Assistant Chief, Legal Division from RR7 in Quezon City to RR4 in
San Fernando, Pampanga. The BIR cited exigencies of the revenue
service as basis for the issuance of the said RTAO.
Pacheo questioned the reassignment through her Letter dated
May 9, 20024 addressed to Rene G. Banez, then Commissioner of
Internal Revenue (CIR). She complained that the transfer would mean
economic dislocation since she would have to spend P200.00 on daily
travel expenses or approximately P4,000.00 a month. It would also
mean physical burden on her part as she would be compelled to wake
up early in the morning for her daily travel from Quezon City to San
Fernando, Pampanga, and to return home late at night from San
Fernando, Pampanga to Quezon City. She was of the view that that
her reassignment was merely intended to harass and force her out of
the BIR in the guise of exigencies of the revenue service. In sum, she
considered her transfer from Quezon City to Pampanga as amounting
to a constructive dismissal.
_______________
2 Id., at pp. 72-73.
3 Id., at p. 118.
4 Id., at pp. 119-121.
500
500 SUPREME COURT REPORTS ANNOTATED
Republic vs. Pacheo
ADMELEC Cases
251
Due to the then inaction of the BIR, Pacheo filed a
complaint5 dated May 30, 2002, before the CSC-National Capital
Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002.
In its July 22, 2002 Order,6 the CSC-NCR treated Pacheo’s Complaint
as an appeal and dismissed the same, without prejudice, for failure to
comply with Sections 73 and 74 of Rule V(b) of the Uniform Rules on
Administrative Cases in the Civil Service.7
In its Letter-reply8 dated September 13, 2002, the BIR, through its
Deputy Commissioner for Legal and Inspection Group, Edmundo P.
Guevara (Guevara), denied Pacheo’s protest for lack of merit. It
contended that her reassignment could not be considered constructive
dismissal as she maintained her position as Revenue Attorney IV and
was designated as Assistant Chief of Legal Division. It emphasized
that her appointment to the position of Revenue Attorney IV was
without a specific station. Consequently, she could properly be
reassigned from one organizational unit to another within the BIR.
Lastly, she could not validly claim a vested right to any specific station,
or a violation of her right to security of tenure.
Not in conformity with the ruling of the BIR, Pacheo appealed her
case before the CSC.
On November 21, 2005, the CSC issued Resolution No.
0516979 granting Pacheo’s appeal, the dispositive portion of which
reads:
_______________
5 Id., at p. 122.
6 Id., at pp. 123-124.
7 Section 73. Requirement of Filing.—The appellant shall
furnish a copy of his appeal to the head of department or agency
concerned who shall submit his comment, together with the records,
to the Commission within ten (10) days from receipt thereof. Proof of
service of the appeal on the head of department or agency shall be
submitted with the Commission.
Section 74. Grounds for Dismissal.—An appeal involving non-
disciplinary cases shall be dismissed on any of the following grounds:
a. The appeal is filed beyond the reglementary period;
b. The filing fee of Three Hundred (P300.00) has not been
paid, or
c. The appeal does not contain a certification on non-forum
shopping.
8 Rollo, p. 125.

9 Id., at pp. 148-155.
501
VOL. 664, JANUARY 31, 2012 501
Republic vs. Pacheo
“WHEREFORE, the instant appeal of Minerva M.P. Pacheo is
hereby GRANTED. The Bureau of Internal Revenue Revenue Travel
Assignment Order No. 25-2002 dated May 7, 2002, on the
reassignment of Pacheo to the Legal Division Revenue Region No. 4
San Fernando, Pampanga, is hereby declared NOT VALID.
ACCORDINGLY, Pacheo should now be recalled to her original
station. This Commission, however rules and so holds that the
withholding by the BIR of Pacheo’s salary for the period she did not
report to work is justified.
The CSCRO No. III is directed to monitor the implementation of
this Resolution.”
In granting Pacheo’s appeal, the CSC explained:
“On the second issue, this Commission finds merit in appellant’s
contention that her reassignment in not valid.
Of pertinent application thereto is Rule III, Section 6 of CSC
Memorandum Circular No. 40, series of 1998, dated December 14,
1998, which provides:
Section 6. Other Personnel Movements.—The following
personnel movements which will not require issuance of an
appointment shall nevertheless require an office order by duly
authorized official.
a. Reassignment—Movement of an employee from one
organizational unit to another in the same department or
agency which does not involve reduction in rank, status or
salary. If reassignment is done without consent of the employee
being reassigned it shall be allowed for a maximum period of
one year. Reassignment is presumed to be regular and made
in the interest of public service unless proven otherwise or it
constitutes constructive dismissal.
No assignment shall be undertaken if done indiscriminately
or whimsically because the law is not intended as a convenient
shield for the appointing/ disciplining authority to harass or
oppress a subordinate on the pretext of advancing and
promoting public interest.
ADMELEC Cases
252
Reassignment of small salaried employee is not permissible
if it causes significant financial dislocation.’
Although reassignment is a management prerogative, the same
must be done in the exigency of the service without diminution in rank,
status and salary on the part of the officer or employee being
temporarily reassigned. Reassignment of ‘small salaried’ employees,
however is not allowed if it will
502
502 SUPREME COURT REPORTS ANNOTATED
Republic vs. Pacheo
cause significant financial dislocation to the employee reassigned.
Otherwise the Commission will have to intervene.
The primary purpose of emphasizing ‘small salaried employees’ in
the foregoing rule is to protect the ‘rank and file’ employees from
possible abuse by the management in the guise of
transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51
O.G. 2452) ruled:
‘x x x [T]he protection against invalid transfer is especially
needed by lower ranking employees. The Court emphasized
this need when it ruled that officials in the unclassified service,
presidential appointees, men in the government set up occupy
positions in the higher echelon should be entitled to security of
tenure, unquestionable a lesser sol[ci]itude cannot be meant
for the little men, that great mass of Common underprivileged
employees-thousand there are of them in the lower bracket,
who generally are without connections and who pin their hopes
of advancement on the merit system instituted by our civil
service law.’
In other words, in order to be embraced in the term ‘small-salaried
employees’, the latter must belong to the ‘rank and file’; and, his/her
salary would be significantly reduced by virtue of the
transfer/reassignment. ‘Rank and file’ was categorized as those
occupying the position of Division Chief and below, pursuant to CSC
Resolution No. 1, series of 1991, dated January 28, 1991.
The facts established on record show that Pacheo belongs to the
rank and file receiving an average monthly salary of Twenty Thousand
Pesos (P20,000.00) under the salary standardization law and a
monthly take home pay of Fourteen Thousand Pesos (P14,000.00).
She has to spend around Four Thousand Pesos (P4,000.00) a month

for her transportation expenses as a consequence of her
reassignment, roughly twenty eight percent (28%) of her monthly take
home pay. Clearly, Pacheo’s salary shall be significantly reduced as
a result of her reassignment.
In ANORE, Ma. Theresa F., this Commission ruled:
‘Anore, a lowly salaried employee, was reassigned to an
isolated island 15 kilometers away from her original place of
assignment. She has to travel by boat with only one trip a day to
report to her new place of assignment in an office without any
facilities, except its bare structure. Worst, the municipality did
not provide her with transportation allowance. She was forced
to be separated from her family, look for a boarding house
where she can stay while in the island and spend for her board
and lodging. The circumstances surrounding Anore’s reassign-
503
VOL. 664, JANUARY 31, 2012 503
Republic vs. Pacheo
ment is exactly the kind of reassignment that is being frowned
upon by law.’
This Commission, however, rules and so holds that the withholding
by the BIR of her salaries is justified as she is not entitled thereto since
she is deemed not to have performed any actual work in the
government on the principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her original
station without any right to claim back salary as she did not report to
work either at her new place of assignment or at her original
station.”10 [Emphases in the original]
Still not satisfied, Pacheo moved for reconsideration. She argued
that the CSC erred in not finding that she was constructively dismissed
and, therefore, entitled to back salary.
On March 7, 2006, the CSC issued Resolution No.
06039711 denying Pacheo’s motion for reconsideration.
Undaunted, Pacheo sought recourse before the CA via a petition
for review.
In its February 22, 2007 Decision, the CA reversed the CSC
Resolution and ruled in favor of Pacheo, the fallo of which states:
“WHEREFORE, the petition is GRANTED. Resolution nos.
051697 and 060397 dated November 21, 2005 and March 7, 2006,
ADMELEC Cases
253
respectively, of the Civil Service Commission
are REVERSED and SET ASIDE. A new judgment is hereby entered
finding petitioner to have been constructively dismissed and ordering
her immediate reinstatement with full backwages and benefits.
SO ORDERED.”12
In setting aside CSC Resolution Nos. 051697 and 060397, the CA
held that:
“While this Court agrees that petitioner’s reassignment was not
valid considering that a diminution in salary is enough to invalidate
such reas-
_______________
10 Id., at pp. 79-81.
11 Id., at pp. 82-85.
12 Id., at p. 69.
504
504 SUPREME COURT REPORTS ANNOTATED
Republic vs. Pacheo
signment, We cannot agree that the latter has not been constructively
dismissed as a result thereof.
It is well to remember that constructive dismissal does not always
involve forthright dismissal or diminution in rank, compensation,
benefits and privileges. For an act of clear discrimination, insensibility,
or disdain by an employer may become so unbearable on the part of
the employee that it could foreclose any choice by him except to forgo
his continued employment.
The management prerogative to transfer personnel must be
exercised without grave abuse of discretion and putting to mind the
basic elements of justice and fair play. The employer must be able to
show that the transfer is not unreasonable, inconvenient, or prejudicial
to the employee.
In this case, petitioner’s reassignment will result in the reduction of
her salary, not to mention the physical burden that she would suffer in
waking up early in the morning to travel daily from Quezon City to San
Fernando, Pampanga and in coming home late at night.
Clearly, the insensibility of the employer is deducible from the
foregoing circumstances and petitioner may have no other choice but
to forego her continued employment.

Moreover, it would be inconsistent to hold that the reassignment
was not valid due to the significant reduction in petitioner’s salary and
then rule that there is no constructive dismissal just because said
reduction in salary will not render petitioner penniless if she will report
to her new place of assignment. It must be noted that there is
constructive dismissal when the reassignment of an employee
involves a diminution in pay.
Having determined that petitioner has been constructively
dismissed as a result of her reassignment, We shall resolve whether
or not she is entitled to backwages.
In denying petitioner’s claim for backwages, the CSC held:
This Commission, however, rules and so holds that the
withholding by the BIR of her salaries is justified as she is not
entitled thereto since she is deemed not to have performed any
actual work in the government on the principle of no work no
pay.
Accordingly, Pacheo should now be reinstated to her
original station without any right to claim back salary as she did
not report for work either at her new place of assignment or at
her original station.”
Pacheo, while belonging to the rank-and-file employees, is
holding a responsible position as an Assistant Division Chief,
who could not just
505
VOL. 664, JANUARY 31, 2012 505
Republic vs. Pacheo
abandon her duties merely because she protested her re-
assignment and filed an appeal afterwards.”
We do not agree.
“If there is no work performed by the employee there can be no
wage or pay, unless of course the laborer was able, willing and ready
to work but was illegally locked out, dismissed or suspended. The “No
work, no pay” principle contemplates a “no work” situation where the
employees voluntarily absent themselves.
In this case, petitioner was forced to forego her continued
employment and did not just abandon her duties. In fact, she lost no
time in protesting her reassignment as a form of constructive
dismissal. It is settled that the filing of a complaint for illegal dismissal
ADMELEC Cases
254
is inconsistent with a charge of abandonment. The filing of the
complaint is proof enough of his desire to return to work, thus negating
any suggestion of abandonment.
Neither do we agree with the OSG when it opined that:
No one in the Civil Service should be allowed to decide on
whether she is going to accept or not any work dictated upon
by the exigency of the service. One should consider that public
office is a public trust and that the act of respondent CIR enjoys
the presumption of regularity. To uphold the failure of
respondent to heed the RTAO would result in chaos. Every
employee would put his or her vested interest or personal
opinion over and above the smooth functioning of the
bureaucracy.
Security of tenure is a right of paramount value as recognized and
guaranteed under Sec. 3, Art. XIII of the 1987 Constitution.
The State shall afford full protection to labor, xxx and
promote full employment and equality of employment
opportunities for all. It shall guarantee the rights of all workers
to xxx security of tenure xxx
Such constitutional right should not be denied on mere speculation
of any similar unclear and nebulous basis.
In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the
OSG’s opinion that when the transfer is motivated solely by the
interest of the service of such act cannot be considered violative of the
Constitution, thus:
“We do not agree to this view. While temporary transfers or
assignments may be made of the personnel of a bureau or
department without first obtaining the consent of the employee
concerned within the scope of Section 79 (D) of the
Administrative Code which party pro-
506
506 SUPREME COURT REPORTS ANNOTATED
Republic vs. Pacheo
vides that ‘The Department Head also may, from time to time,
in the interest of the service, change the distribution among the
several Bureaus and offices of his Department of the
employees or subordinates authorized by law,’ such cannot be
undertaken when the transfer of the employee is with a view to
his removal. Such cannot be done without the consent of the

employee. And if the transfer is resorted to as a scheme to lure
the employee away from his permanent position, such attitude
is improper as it would in effect result in a circumvention of the
prohibition which safeguards the tenure of office of those who
are in the civil service. It is not without reason that this Court
made the following observation:
To permit circumvention of the constitutional prohibition in
question by allowing removal from office without lawful cause,
in the form or guise of transfers from one office to another, or
from one province to another, without the consent of the
transferee, would blast the hopes of these young civil service
officials and career men and women, destroy their security and
tenure of office and make for a subservient, discontented and
inefficient civil service force that sways with every political wind
that blows and plays up to whatever political party is in the
saddle. That would be far from what the framers of our
Constitution contemplated and desired. Neither would that be
our concept of a free and efficient Government force,
possessed of self-respect and reasonable ambition.”
Clearly, the principle of “no work, no pay” does not apply in this
case. As held in Neeland v. Villanueva, Jr.:
“We also cannot deny back salaries and other economic
benefits on the ground that respondent Clerk of Court did not
work. For the principle of “no work, no pay” does not apply when
the employee himself was forced out of job. xxx Indeed, it is not
always true that back salaries are paid only when work is done.
xxx For another, the poor employee could offer no work since
he was forced out of work. Thus, to always require complete
exoneration or performance of work would ultimately leave the
dismissal uncompensated no matter how grossly
disproportionate the penalty was. Clearly, it does not serve
justice to simply restore the dismissed employee to his position
and deny him his claim for back salaries and other economic
benefits on these grounds. We would otherwise be serving
justice in halves.”
An illegally dismissed government employee who is later ordered
reinstated is entitled to back wages and other monetary benefits from
the time of his illegal dismissal up to his reinstatement. This is only fair
and sensible
507
ADMELEC Cases
255
VOL. 664, JANUARY 31, 2012 507
Republic vs. Pacheo
because an employee who is reinstated after having been illegally
dismissed is considered as not having left his office and should be
given a comparable compensation at the time of his reinstatement.
When a government official or employee in the classified civil
service had been illegally dismissed, and his reinstatement had later
been ordered, for all legal purposes he is considered as not having left
his office, so that he is entitled to all the rights and privileges that
accrue to him by virtue of the office that he held.”13
The CSC moved for reconsideration but its motion was denied by
the CA in its May 15, 2007 Resolution.
Hence, this petition.
THE ISSUES
WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY
CORRECT IN DECLARING THAT RESPONDENT WAS
CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK
WAGES, NOTWITHSTANDING RESPONDENT’S REFUSAL TO
COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY
EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.
WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN
HER SALARY IN RELATION TO SECTION 6, RULE III OF CSC
MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED
DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR
RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR
RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO,
PAMPANGA.14
In her Memorandum,15 Pacheo asserts that RTAO No. 25-2002,
on the pretense of the exigencies of the revenue service, was solely
meant to harass her and force her to resign. As a result of her invalid
reassignment, she was constructively dismissed and, therefore, enti-
_______________
13 Citations omitted, id., at pp. 64-69.
14 Id., at pp. 45-46.
15 Id., at pp. 279-283.
508
508 SUPREME COURT REPORTS ANNOTATED

Republic vs. Pacheo
tled to her back salaries and monetary benefits from the time of her
illegal dismissal up to her reinstatement.
In its own Memorandum,16 the CSC, through the OSG, argues that
constructive dismissal is not applicable in this case because it was
Pacheo herself who adamantly refused to report for work either in her
original station or new place of assignment in clear violation of Section
24 (f) of Presidential Decree (PD) No. 807.17 Citing
18
jurisprudence, the CSC avers that the RTAO is immediately
executory, unless otherwise ordered by the CSC. Therefore, Pacheo
should have first reported to her new place of assignment and then
appealed her case to the CSC if she indeed believed that there was
no justification for her reassignment. Since Pacheo did not report for
work at all, she is not entitled to backwages following the principle of
“no work, no pay.”
The Court’s Ruling
The petition fails to persuade.
It appears undisputed that the reassignment of Pacheo was not
valid. In its memorandum, the OSG initially argues for the validity of
RTAO No. 25-2002 authorizing Pacheo’s reassignment from Quezon
City to San Fernando, Pampanga. Later, however, it specifically prays
for the reinstatement of CSC Resolution Nos. 051697 and 060397,
which categorically declared RTAO No. 25-2002 as not valid. In
seeking such relief, the OSG has effectively accepted the finding of
the CSC, as affirmed by the CA, that Pacheo’s reassignment was
_______________
16 Id., at pp. 254-273.
17 Section 24. Personnel Actions.
xxx
(f) Detail. A detail is the movement on an employee from one
agency to another without the issuance of an appointment and shall
be allowed, only for a limited period in the case of employees
occupying professional, technical and scientific positions. If the
employee believes that there is no justification for the detail, he may
appeal his case to the Commission. Pending appeal, the decision to
detail the employee shall be executory unless otherwise ordered by
the Commission. (Underscoring supplied)
18 Teotico v. Agda, Sr., 274 Phil. 960; 197 SCRA 675 (1991).
ADMELEC Cases
256
509
VOL. 664, JANUARY 31, 2012 509
Republic vs. Pacheo
indeed invalid. Since the issue of Pacheo’s reassignment is already
settled, the Court finds it futile to pass upon the same at this point.
The question that remains to be resolved is whether or not
Pacheo’s assignment constitutes constructive dismissal and, thus,
entitling her to reinstatement and backwages. Was Pacheo
constructively dismissed by reason of her reassignment?
The Court agrees with the CA on this point.
While a temporary transfer or assignment of personnel is
permissible even without the employee’s prior consent, it cannot be
done when the transfer is a preliminary step toward his removal, or a
scheme to lure him away from his permanent position, or when it is
designed to indirectly terminate his service, or force his resignation.
Such a transfer would in effect circumvent the provision which
safeguards the tenure of office of those who are in the Civil Service.19
Significantly, Section 6, Rule III of CSC Memorandum Circular No.
40, series of 1998, defines constructive dismissal as a situation when
an employee quits his work because of the agency head’s
unreasonable, humiliating, or demeaning actuations which render
continued work impossible. Hence, the employee is deemed to have
been illegally dismissed. This may occur although there is no
diminution or reduction of salary of the employee. It may be a transfer
from one position of dignity to a more servile or menial job.
The CSC, through the OSG, contends that the deliberate refusal
of Pacheo to report for work either in her original station in Quezon
City or her new place of assignment in San Fernando, Pampanga
negates her claim of constructive dismissal in the present case being
in violation of Section 24 (f) of P.D. 807 [now Executive
Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26
(6)].20 It further argues
_______________
19 Bentain v. Court of Appeals, G.R. No. 89452, June 9, 1992, 209
SCRA 644, 648.
20 Section 26. Personnel Actions.
xxx
(6) Detail. A detail is the movement on an employee from one
agency to another without the issuance of an appointment and shall

be allowed, only for a limited period in the case of employees
occupying professional, technical
510
510 SUPREME COURT REPORTS ANNOTATED
Republic vs. Pacheo
that the subject RTAO was immediately executory, unless otherwise
ordered by the CSC. It was, therefore, incumbent on Pacheo to have
reported to her new place of assignment and then appealed her case
to the CSC if she indeed believed that there was no justification for her
reassignment.
Anent the first argument of CSC, the Court cannot sustain the
proposition. It was legally impossible for Pacheo to report to her
original place of assignment in Quezon City considering that the
subject RTAO No. 25-2002 also reassigned Amado Rey B.
Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from RR4,
San Fernando, Pampanga to RR7, Quezon City, the very same
position Pacheo formerly held. The reassignment of Pagarigan to the
same position palpably created an impediment to Pacheo’s return to
her original station.
The Court finds Itself unable to agree to CSC’s argument that the
subject RTAO was immediately executory. The Court deems it
necessary to distinguish between a detail and reassignment, as they
are governed by different rules.
A detail is defined and governed by Executive Order 292, Book V,
Title 1, Subtitle A, Chapter 5, Section 26 (6), thus:
(6) Detail. A detail is the movement of an employee from one agency
to another without the issuance of an appointment and shall be
allowed, only for a limited period in the case of employees occupying
professional, technical and scientific positions. If the employee
believes that there is no justification for the detail, he may appeal his
case to the Commission. Pending appeal, the decision to detail the
employee shall be executory unless otherwise ordered by the
Commission. [Underscoring supplied]
On the other hand, a reassignment is defined and governed by
E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7), thus:
_______________
and scientific positions. If the employee believes that there is no
justification for the detail, he may appeal his case to the Commission.
ADMELEC Cases
257
Pending appeal, the decision to detail the employee shall be executory
unless otherwise ordered by the Commission. (Underscoring
supplied)
511
VOL. 664, JANUARY 31, 2012 511
Republic vs. Pacheo
(7) Reassignment.—An employee may be reassigned from one
organizational unit to another in the same agency; Provided, That
such reassignment shall not involve a reduction in rank, status or
salaries. [Underscoring supplied]
The principal distinctions between a detail and reassignment lie in
the place where the employee is to be moved and in its effectivity
pending appeal with the CSC. Based on the definition, a detail requires
a movement from one agency to another while a reassignment
requires a movement within the same agency. Moreover, pending
appeal with the CSC, an order to detail is immediately executory,
whereas a reassignment order does not become immediately
effective.
In the case at bench, the lateral movement of Pacheo as Assistant
Chief, Legal Division from Quezon City to San Fernando, Pampanga
within the same agency is undeniably a reassignment. The OSG
posits that she should have first reported to her new place of
assignment and then subsequently question her reassignment. It is
clear, however, from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5,
Section 26 (7) that there is no such duty to first report to the new place
of assignment prior to questioning an alleged invalid reassignment
imposed upon an employee. Pacheo was well within her right not to
report immediately to RR4, San Fernando, Pampanga, and to
question her reassignment.
Reassignments involving a reduction in rank, status or salary
violate an employee’s security of tenure, which is assured by the
Constitution, the Administrative Code of 1987, and the Omnibus Civil
Service Rules and Regulations. Security of tenure covers not only
employees removed without cause, but also cases of unconsented
transfers and reassignments, which are tantamount to
illegal/constructive removal.21
The Court is not unaware that the BIR is authorized to assign or
reassign internal revenue officers and employees as the exigencies of
 258

service may require. This authority of the BIR, however, should be

prudently exercised in accordance with existing civil service rules.
_______________
21 Yenko v. Gungon, G.R. No. 165450, August 13, 2009, 595
SCRA 562, 576-577.
512
512 SUPREME COURT REPORTS ANNOTATED
Republic vs. Pacheo
Having ruled that Pacheo was constructively dismissed, is she
entitled to reinstatement and back wages? The Court agrees with the
CA that she is entitled to reinstatement, but finds Itself unable to
sustain the ruling that she is entitled to full back wages and benefits.
It is a settled jurisprudence22 that an illegally dismissed civil service
employee is entitled to back salaries but limited only to a maximum
period of five (5) years, and not full back salaries from his illegal
dismissal up to his reinstatement.
WHEREFORE, the petition is DENIED. The assailed February 22,
2007 Decision and May 15, 2007 Resolution of the Court of Appeals,
in CA-G.R. SP No. 93781, are hereby AFFIRMED with
MODIFICATION that respondent Minerva M.P. Pacheo is hereby
ordered reinstated without loss of seniority rights but is only entitled to
the payment of back salaries corresponding to five (5) years from the
date of her invalid reassignment on May 7, 2002.
SO ORDERED.

Authority of Public Officer

[No. L-5156. Marzo 11, 1954]

CARMEN FESTEJO, demandante y apelante, contra ISAÍAS
FERNANDO, Director de Obras Públicas, demandado y apelado.
PRÁCTICA FORENSE; ACCIÓN CONTRA UN
FUNCIONARIO PÚBLICO POR DAÑOS Y PERJUICIOS.—La
acción contra el demandado como Director de Obras Públicas
encargado y responsable de la construcción de los sistemas de
irrigación en Filipinas, por alegadas extralimitaciones en el
desempeño de sus funciones oficiales, es una
dirigida personalmente contra el. "Ordinarily the officer or
employee committing the tort is personally liable therefor, and may

ADMELEC Cases

be sued as any other citizen and held answerable for whatever
injury or damage results from his tortious act." (49 Am. Jur. 28.) En
ese caso, no procede el sobreseimiento de la demanda por el
fundamento de que la acción es una dirigida contra la República
de Filipinas.
APELACIÓN contra una orden del Juzgado de Primera Instancia de
Ilocos Sur. Campos, J.
505
VOL. 94, MARCH 11, 1954 505
Festejo vs. Fernando
Los hechos aparecen relacionados en la decision del Tribunal.
D. Eloy B. Bello en representación de la apelante.
El Procurador General Sr. Pompeyo Díaz y el Procurador Sr.
Antonio A. Torres en representación del apelado.
DIOKNO, M.:
Carmen Festejo, dueña de unos terrenos azucareros, de un total
de unas 9 hectáreas y media de superfice, demandó a "Isaías
Fernando Director, Bureau of Public Works, que como tal Director de
Obras Públicas tiene a su cargo los sistemas y proyectos
de irrigación y es el funcionario responsable de la construcción de los
sistemas de irrigación en el país," alegando que—
"The defendant, as Director of the Bureau of Public Works, without
authority obtained first from the Court of First Instance of Ilocos Sur,
without obtaining first a right of way, and without the consent and
knowledge of the plaintiff, and against her express objection,
unlawfully took possession of 'portions of the three parcels of land
described above, and caused an irrigation canal to be constructed on
the portion of the three parcels of land on or about the month of
February 1951 the aggregate area being 24,179 square meters to the
damage and prejudice of the plaintiif."—R. on A., p. s.
causando a ella variados daños y perjuicios. Pidió, en su
consecuencia, sentencia condenando el demandado:
"* * * to return or cause to be returned the possession of the portions
of land unlawfully occupied and appropriated in the aggregate area of
24,179 square meters and to return the land to its former condition
under the expenses of the defendant." * * *
"In the remote event that the portions of land unlawfully occupied
and appropriated can not be returned to the plaintiff, then to order the
ADMELEC Cases
259
defendant to pay to the plaintiff the sum of P19,343.20 as value of the
portions totalling an area of 24,179 square meters;"—R. on A., p. 5.
y además a pagar P9,756.19 de daños y P5,000 de honorarios de
abogado, con las costas R. on A., pp. 5-6.
El demandado, por medio del Procurador General, presentó
moción de sobreseimiento de la demanda por el fundamento de que
el Juzgado no tiene jurisdicción para
506
506 PHILIPPINE REPORTS ANNOTATED
Festejo vs. Fernando
dictar sentencia válida contra él, toda vez que judicialmente la
reclamación es contra la República de Filipinas, y esta no ha
presentado su consentimiento a la demanda. El Juzgado inferior
estimó la moción y sobreseyó la demanda sin perjuicio y sin costas.
En apelación, la demandante sostiene que fué un error considerar
la demanda como una contra la República y sobreseer en su virtud la
demanda,
La moción contra "Isaías Fernando, Director de Obras Públicas,
encargado y responsable de la construcción de los sistemas de
irrigación en Filipinas" es una dirigida personalmente contra él, por
actos que asumió ejecutar en su concepto oficial. La ley no le exime
de responsabilidad por las extralimitaciones que cometa o haga
cometer en el desempeño de sus funciones oficiales.
Un caso semejante es el de Nelson vs. Bobcock (1933) 18 minn.
584, 24 NW 49, 90 ALR 1472. Allí el Comisionado de Carreteras, al
mejorar un trozo de la carretera ocupó o se apropió de terrenos
contiguos al derecho de paso. El Tribunal Supremo del Estado
declaró que es personalmente responsable al dueño de los daños
causados. Declaró además que la ratificación de lo que hicieron sus
subordinados era equivalente a una orden a los mismos. He aquí lo
dijo el Tribunal.
"We think the evidence and conceded facts permitted the jury in
finding that in the trespass on plaintiff's land defendant committed acts
outside the scope of his authority. When he went outside the
boundaries of the right of way upon plaintifTs land and damaged it or
destroyed its former condition and usefulness, he must be held to have
designedly departed from the duties imposed on him by law. There
can be no claim that he thus invaded plaintiff's land southeasterly of
the right of way innocently. Surveys clearly marked the limits of the
 260

land appropriated for the right of way of this trunk highway before "(6) The right against deprivation of property without due process
construction began. * * *. of law;
" 'Ratification may be equivalent to command, and cooperation * * * * * * *
may be inferred from acquiescence where there is power to restrain.' "In any of the cases referred to in this article, whether or not the
It is unnecessary to consider other cases cited, * * *, for as before defendant's acts or omission constitutes a criminal ofFense, the
suggested, the jury could find or infer that, in so far as there was actual aggrieved party has a right to commence an entirely separate and
trespass by appropriation of plaintiff's distinct civil action for damages, and for other relief. Such civil action
shall proceed independently of any criminal prosecution (if the latter
507 be instituted), and may be proved by a preponderance of evidence.
VOL. 94, MARCH 11, 1954 507 "The indemnity shall include moral damages. Exemplary damages
Festejo vs. Fernando may also be adjudicated."
land as a dumping place for the rock to be removed from the additional Veanse también Lung vs. Aldanese, 45 Phil.,
appropriated right of way, defendant planned, approved, and ratified 784; Syquia vs. Almeda, No. L-1648, Agosto 17,
what was done by his subordinates."—Nelson vs. Bobcock, 90 A. L. 1947; Marquez vs. Nelson, No. L-2412, Septiembre 1950.
R., 1472, 1476, 1477. 508
La doctrina sobre la responsabilidad civil de los funcionarios en casos 508 PHILIPPINE REPORTS ANNOTATED
parecidos se resume como sigue: Festejo vs. Fernando
"Ordinarily the officer or employee committing the tort is personally Se revoca la orden apelada y se ordena la continuación de la
liable therefor, and may be sued as any other citizen and held tramitación de la demanda conforme proveen los reglamentos. Sin
answerable for whatever injury or damage results from his tortious especial pronunciamiento en cuanto a las costas. Así se ordena.
act."—49 Am. Jur. 289.
* * * If an officer, even while acting under color of his office,
exceeds the power conferred on him by law, he cannot shelter himself
under the plea that he is a public agent."—43 Am. Jur. 86.
No. L-26803. October 14, 1975.*
"It is a general rule that an officer-executive, administrative quasi-
AMERICAN TOBACCO COMPANY, CARNATION COMPANY,
judicial, ministerial, or otherwise who acts outside the scope of his
CURTISS CANDY COMPANY, CUDAHY PACKING CO., CLUETT,
jurisdiction and without authorization of law may thereby render
PEABODY & CO., INC., CANNON MILLS COMPANY, FORMICA
himself amenable to personal liability in a civil suit. If he exceeds the
CORPORATION, GENERAL MOTORS CORPORATION,
power conferred on him by law, he cannot shelter himself by the plea
INTERNATIONAL LATEX CORPORATION, KAYSER-ROTH
that he is a public agent acting under color of his office, and not
CORPORATION, M & R
personally. In the eye of the law, his acts then are wholly without
authority."—48 Am. Jur. 89-90. _______________
El artículo 32 del Código Civil dice, a su vez: *
"ART. 32. Any public officer or employee, or any private individual, SECOND DIVISION.
who directly or indirectly obstructs, defeats, violates or in any manner 288
impedes or impairs any of the following rights and liberties of another
288 SUPREME COURT REPORTS ANNOTATED
person shall be liable to the latter for damages:
* * * * * * * American Tobacco Co. vs. Director of Patents

ADMELEC Cases

DIETETIC LABORATORIES, INC., OLIN MATHIESON, PARFUM
CIRO, INC., PROCTER & GAMBLE COMPANY, PROCTER &
GAMBLE PHILIPPINE MANUFACTURING CORPORATION,
PARFUMS PORVIL DENTRIFICES DU DOCTEUR PIERRE REUNIS
SOCIETE ANONYME, R.J. REYNOLDS TOBACCO COMPANY,
SWIFT AND COMPANY, STERLING PRODUCTS INTERNATIONAL,
THE CLOROX COMPANY, WARNER LAMBERT
PHARMACEUTICALS COMPANY and ZENITH RADIO
CORPORATION, petitioners, vs. THE DIRECTOR OF PATENTS,
ATTYS. AMANDO L. MARQUEZ, TEOFILO P. VELASCO, RUSTICO
A. CASIA and HECTOR D. BUENALUZ, respondents.
Patents law; Administrative law; The Director of Patents is
authorized to designate any ranking official of the Patents Office to
hear inter partes proceedings in the registration of trade marks and
trade names under RA. 166.—It has been held that power conferred
upon an administrative agency to which the administration of a statute
is entrusted to issue such regulations and orders as may be deemed
necessary or proper in order to carry out its purposes and provisions
may be an adequate source of authority to delegate a particular
function, unless by express provision of the Act or by implication it has
been withheld. There is no provision either in R.A. 165 or 166
negativing the existence of such authority, so far as the designation of
hearing examiners is concerned. Nor can the absence of such
authority be fairly inferred from contemporaneous and consistent
Executive interpretation of the Act.
Same; Same; R.A. 166 and R.A. 165 should be construed so as
to give Director of Patents administrative flexibility necessary for
prompt discharge of his duties in administering said laws.—The nature
of the power and authority entrusted to the Director of Patents
suggests that the aforecited laws (Republic Act No. 166, in relation to
Republic Act No. 165) should be construed so as to give the aforesaid
official the administrative flexibility necessary for the prompt and
expeditious discharge of his duties in the administration of said laws,
x x x It could hardly be expected, in view of the magnitude of his
responsibility, to require him to hear personally each and every case
pending in his Office. This would leave him little time to attend to his
other duties. For him to do so and at the same time attend personally
to the discharge of every other duty or responsibility imposed upon his
Office by law would not further the development of orderly and
responsible administration.
ADMELEC Cases
261
Same; Same; While power to decide resides solely in
administrative agency vested by law, this does not preclude a
289
VOL. 67, OCTOBER 14, 1975 289
American Tobacco Co. vs. Director of Patents
delegation of the power to hold a hearing on basis of which the
agency’s decision will be made.—Thus, it is well-settled that while the
power to decide resides solely in the administrative agency vested by
law, this does not preclude a delegation of the power to hold a hearing
on the basis of which the decision of the administrative agency will be
made. The rule that requires and administrative officer to exercise his
own judgment and discretion does not preclude him from utilizing, as
a matter of practical administrative procedure, the aid of subordinates
to investigate and report to him the facts, on the basis of which the
officer makes his decisions. It is sufficient that the judgment and
discretion finally exercised are those of the officer authorized by law.
Same; Same; Constitutional law; Due process; Due process
does not require that actual taking of testimony be before the same
officer who will decide the case.—Neither does due process of law nor
the requirements of fair hearing require that the actual taking of
testimony be before the same officer who will make the decision in the
case. As long as a party is not deprived of his right to present his own
case and submit evidence in support thereof, and the decision is
supported by the evidence in the record, there is no question that the
requirements of due process and fair trial are fully met. In short, there
is no abnegation of responsibility on the part of the officer concerned
as the actual decision remains with and is made by said officer.
Same; Same; Same; Same; Officer who makes determinations
during the hearing of patent cases should consider the evidence which
justifies such determinations.—It is, however, required that to “give the
substance of a hearing, which is for the purpose of making
determinations upon evidence, the officer who makes the
determinations must consider and appraise the evidence which
justifies them.”
Same; Same; Same; Same; Repeated appropriations for the
position of hearing officers in the Patents Office constitutes a
ratification of the act of the Director of Patents in designating
subordinates to hear patents and trademarks cases.—The repeated
appropriations by Congress for hearing officers of the Philippine

Patent Office from 1963 to 1968 not only confirms the departmental
construction of the statute, but also constitutes a ratification of the act
of the Director of Patents and the Department Head as agents of
Congress in the administration of the law.
ORIGINAL ACTION in the Supreme Court. Mandamus with
preliminary injunction.
The facts are stated in the opinion of the Court.
290
290 SUPREME COURT REPORTS ANNOTATED
American Tobacco Co. vs. Director of Patents
Lichauco, Picazo & Agcaoili for petitioners.
Office of the Solicitor General for respondents.
ANTONIO, J.:
In this petition for mandamus with preliminary injunction, petitioners
challenge the validity of Rule 168 of the “Revised Rules of Practice
before the Philippine Patent Office in Trademark Cases” as amended,
authorizing the Director of Patents to designate any ranking
official of said office to hear “inter partes” proceedings. Said Rule
likewise provides that “all judgments determining the merits of the
case shall be personally and directly prepared by the Director and
signed by him.” These proceedings refer to the hearing of opposition
to the registration of a mark or trade name, interference proceeding
instituted for the purpose of determining the
question of priority of adoption and use of a trade-mark, trade name
or service-mark, and cancellation of registration of a trade-mark or
trade name pending at the Patent Office.
Petitioners are parties, respectively, in the following opposition,
interference and cancellation proceedings in said Office: Inter
Partes Cases Nos. 157, 392, 896, 282, 247, 354, 246, 332, 398, 325,
374, 175, 297, 256, 267, 111, 400, 324, 114, 159, 346, and 404.
Under the Trade-mark Law (Republic Act No. 166),
the Director of Patents is vested with jurisdiction over the above-
mentioned cases. Likewise, the Rules of Practice in Trade-mark
Cases contains a similar provision, thus:
ADMELEC Cases
262
“168. Original jurisdiction over inter partes proceedings.—
The Director of Patents shall have original jurisdiction over inter
partes proceedings. In the event that the Patent Office should be
provided with an Examiner of Interferences, this Examiner shall have
the original jurisdiction over these cases, instead of the Director. In
the case that the Examiner of Interferences takes over the original
jurisdiction over inter partes proceedings, his final decision shall be
subject to appeal to the Director of Patents within three
months of the receipt of notice of decisions. Such appeals shall be
governed by sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15 and
22 of Rule 41 of the Rules of Court insofar as said sections are
applicable and appropriate, and the appeal fee shall be P25.00.”
The Rules of Practice in Trade-mark Cases were drafted and
promulgated by the Director of Patents and approved by the
291
VOL. 67, OCTOBER 14, 1975 291
American Tobacco Co. vs. Director of Patents
then Secretary of Agriculture and Commerce.1
Subsequently, the Director of Patents, with the approval of the
Secretary of Agriculture and Commerce, amended the afore-quoted
Rule 168 to read as follows:
“168. Original jurisdiction over inter partes proceedings.—
The Director of Patents shall have original jurisdiction over inter
partes proceedings. [In the event that the Patent Office is provided
with an Examiner of Interferences, this Examiner shall then have the
original jurisdiction over these cases, instead of the Director. In the
case that the Examiner of Interferences takes over the original
jurisdiction over inter partes proceedings, his final decisions shall be
subject to appeal to the Director of Patents within three
months of the receipt of notice of decision. Such appeals shall be
governed by Sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15, and
22 of Rule 41 of the Rules of Court insofar as said sections are
applicable and appropriate, and the appeal fee shall be P25.00.]
Such inter partes proceedings in the Philippine Patent Office under
this Title shall be heard before the Director of Patents, any hearing
officer, or any ranking official of the office designated by the Director,
but all judgments determining the merits of the case shall be
personally and directly prepared by the Director and signed by
him.” (Italics supplied.)

In accordance with the amended Rule,
the Director of Patents delegated the hearing of petitioners’ cases
to hearing officers, specifically, Attys. Amando Marquez, Teofilo
Velasco, Rustico Casia and Hector Buenaluz, the other respondents
herein.
Petitioners filed their objections to the authority of the hearing
officers to hear their cases, alleging that the amendment of the Rule
is illegal and void because under the law the Director must personally
hear and decide inter partes cases. Said objections were overruled by
the Director of Patents, hence, the present petition for mandamus,
to compel the Director of Patents to personally hear the
cases of petitioners, in lieu of the hearing officers.
It would take an extremely narrow reading of the
powers of the Director of Patents under the general law2 and
Republic
_______________
1 Under Sec. 78 of Republic Act No. 165 (Act creating Patent
Office, etc.) “the Director, subject to the approval of the Department
Head, shall promulgate the necessary rules and regulations not
inconsistent with law, for the conduct of all business in the Patent
Office.”
2 Sections 550, 551, 553, 554, 557 to 559 and 580, Rev.
Administrative Code.
292
292 SUPREME COURT REPORTS ANNOTATED
American Tobacco Co. vs. Director of Patents
Acts Nos. 1653 and 1663* to sustain the contention of petitioners.
Under section 3 of RA 165, the Director of Patents is “empowered to
obtain the assistance of technical, scientific or other qualified officers
or employees of other departments, bureaus, offices, agencies and
instrumentalities of the Government, including corporations owned,
controlled or operated by the Government, when deemed necessary
in the consideration of any matter submitted to the Office relative to
the enforcement of the provisions” of said Act. Section 78 of the
same Act also empowers “the Director, subject to the approval of the
Department Head,” to “promulgate the necessary rules and
regulations, not inconsistent with law, for the conduct of all business
in the Patent Office.” The aforecited statutory authority undoubtedly
ADMELEC Cases
263
also applies to the administration and enforcement of the Trade-mark
Law (Republic Act No. 166).
It has been held that power-conferred upon an administrative
agency to which the administration of a statute is entrusted to issue
such regulations and orders as may be deemed necessary or proper
in order to carry out its purposes and provisions may be an adequate
source of authority to delegate a particular function, unless by express
provisions of the Act or by implication it has been withheld.4 There is
no provision either in Republic Act No. 165 or 166 negativing the
existence of such authority, so far as the designation of hearing
examiners is concerned. Nor can the absence of such authority be
fairly inferred from contemporaneous and consistent Executive
interpretation of the Act.
The nature of the power and authority entrusted to
the Director of Patents suggests that the aforecited laws (Republic
Act No. 166, in relation to Republic Act No. 165) should be construed
so as to give the aforesaid official the administrative flexibility
necessary for the prompt and expeditious discharge of his duties in
the administration of said laws. As such officer, he is required, among
others, to determine the question of
_______________
3 An Act creating a Patent Office, prescribing its powers and duties,
regulating the issuance of patents, etc.
3* An Act to provide for the registration and protection of
trademarks, trade names and service-marks, defining unfair
competition and false marking and providing remedies against the
same, and for other purposes.
4 Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111-124,
9 L. ed. 1385.
293
VOL. 67, OCTOBER 14, 1975 293
American Tobacco Co. vs. Director of Patents
priority in patent interference proceedings,5 decide applications for
reinstatement of a lapsed patent,6 cancellations of patents under
Republic Act No. 165,7 inter partes proceedings such as
oppositions,8 claims of interference,9 cancellation cases under the
Trade-mark Law10 and other matters in connection with the
enforcement of the aforesaid laws. It could hardly be expected, in

view of the magnitude of his responsibility, to require him to hear
personally each and every case pending in his Office. This would
leave him little time to attend to his other duties.11 For him to do so
and at the same time attend personally to the discharge of every other
duty or responsibility imposed upon his Office by law would not further
the development of orderly and responsible administration. The
reduction of existing delays in regulating agencies requires the
elimination of needless work at top levels. Unnecessary and
unimportant details often occupy far too much of the time and
energy of the heads of these
_______________
5 Sections 10 and 16, Republic Act No. 165.
6 Section 23, ibid.
7 Sections 32 and 33, Ibid.
8 Sections 8 and 9, Republic Act No. 166.
9 Section 10-A, Ibid.
10 Sections 17 to 19, Ibid.
11 The Director of Patents has the following duties, as specified
under the WAPCO Guide or Classification of Positions for the
Philippine Patent Office:
“Directs the functions and operations of the Patent Office; approves
and authorizes the registration and issuance of patents and the
registration of marks and names; hears appeals from negative
decisions of the examining staff on ex parte cases as well as inter
partes cases involving opposition, interferences, compulsory licensing
and cancellation and renders decisions thereon which are appealable
only to the Supreme Court; formulates and recommends the adoption
of rules and forms relating to the statutory functions of the office; drafts
and recommends amendments to the Patent Law and Rules of
Practice; formulates and puts into effect rules and regulations for the
administration of the office; prescribes the functions of the
organizational components as well as of the employees of the office;
recommends appointments, promotions and discharges and makes
other personal actions; reviews and approves or modifies requisitions
for supplies, materials and equipment; supervises the formulation of
budget requests; directs the preparation of annual and special reports
and represents the Patent Office before Congress and other official
bodies.”
ADMELEC Cases
264
294
294 SUPREME COURT REPORTS ANNOTATED
American Tobacco Co. vs. Director of Patents
agencies and prevent full and expeditious consideration of the more
important issues. The remedy is a far wider range of delegations to
subordinate officers. This subdelegation of power has been justified
by “sound principles of organization” which demand that “those at the
top be able to concentrate their attention upon the larger and more
important questions of policy and practice, and their time be freed, so
far as possible, from the consideration of the smaller and far less
important matters of detail.”12
Thus, it is well-settled that while the power to decide resides solely
in the administrative agency vested by law, this does not preclude a
delegation of the power to hold a hearing on the basis of which the
decision of the administrative agency will be made.13
_______________
12 Davis, Administrative Law, p. 201.
13 Sec. 9, CA. 103; Ang Tibay v. CIR., 69 Phil. 635; National Union
v. Asian Printing, 99 Phil. 589; Ruperto v. Torres, Feb. 25,
1957; Orlanes, et al. v. Public Service Commission, 57 Phil.
634; Northern Luzon Transportation, Inc. v. Sambrano, 58 Phil.
35; Cebu Transit Inc. v. Jereza 58 Phil. 760.
“It is well established that a delegate may, without delegating his
power, exercise his authority through persons he appoints to assist
him in his functions, particularly where an act performed by a
subordinate is subsequently ratified or approved by the responsible
official. Also, even though delegation may be regarded as existing, the
question of permissible delegation is regarded as one of degree.
“No matter how strict or stubborn the statutory requirement may
be, the law does not preclude practicable administrative procedure in
obtaining the aid of assistants in the department, apparently to any
extent so long as the agency does not abdicate its power and
responsibility and preserves for itself the right to make the final
decision. Thus, without any statutory authority therefor and without
any unlawful delegation of its power, an agency may appoint a referee
to hear and report testimony.” (2 Am. Jur. 2d, section 224, pp. 54-55.)
Likewise, it has been said that:
“While particular statutes may create certain restrictions it is
generally regarded that the fact that the power to decide resides solely

in the administrative agency vested by statute with such power does
not preclude a delegation of the power to hold a hearing and conduct
the proceedings on the basis of which the decision will be made.
Neither does due process of law or the concept of a fair or full hearing
require that the actual taking of testimony be before the same officers
as are to
295
VOL. 67, OCTOBER 14, 1975 295
American Tobacco Co. vs. Director of Patents
The rule that requires an administrative officer to exercise his own
judgment and discretion does not preclude him from utilizing, as a
matter of practical administrative procedure, the aid of subordinates
to investigate and report to him the facts, on the basis of which the
officer makes his decisions.14 It is sufficient that the judgment and
discretion finally exercised are those of the officer authorized by law.
Neither does due process of law nor the requirements of fair hearing
require that the actual taking of testimony be before the same officer
who will make the decision in the case. As long as a party is not
deprived of his right to present his own case and submit evidence in
support thereof, and the decision is supported by the evidence in the
record, there is no question that the requirements of due process and
fair trial are fully met.15 In short, there is no
abnegation of responsibility on the part of the officer concerned as
the actual decision remains with and is made by said officer.16 It is,
however, required that to “give the substance of a
_______________
determine the matter involved. Whether or not expressly authorized
by statute, it is permissible, and does not render a hearing inadequate
or unlawful, for an administrative agency to employ the panel method
of hearing in which one or more of the members of the agency takes
the testimony in the matter before the agency, or to employ other
persons, such as an examiner, investigator or referee, to obtain the
evidence and conduct the hearings and make a report to the agency
upon which the agency makes its decision. Such a procedure is a
practical necessity.” (2 Am. Jur. 2d, see. 407, pp. 217-218. Italics
supplied.)
ADMELEC Cases
265
14 “This necessary rule (‘the one who decides must hear’) does not
preclude practicable administrative procedure in obtaining the aid of
assistants in the department. Assistants may prosecute inquiries.
Evidence may be taken by an examiner. Evidence thus taken may be
sifted and analyzed by competent subordinates. Arguments may be
oral or written. The requirements are not technical. But there must be
a hearing in a substantial sense. And to give the substance of a
hearing, which is for the purpose of making determinations upon
evidence, the officer who makes the determinations must consider
and appraise the evidence which justifies them.” (Morgan v. United
States, 298 US 468, 481-482, [1935], 80 L. ed. 1288, 1295-1296.)
15 Manila Trading and Supply Co. v. Phil. Labor Union, 71 Phil.
124.
16 “While ‘the one who decides must hear,’ it must be remembered
that ‘hear’ is used in the technical sense of requiring certain procedural
minimums to insure an informed judgment by the one who has the
responsibility of making the final decision and order,
296
296 SUPREME COURT REPORTS ANNOTATED
American Tobacco Co. vs. Director of Patents
hearing, which is for the purpose of making determinations upon
evidence the officer who makes the determinations must consider and
appraise the evidence which justifies them.”17
In the case at bar, while the hearing officer may make preliminary
rulings on the myriad of questions raised at the hearings of these
cases, the ultimate decision on the merits of all the issues and
questions involved is left to the Director of Patents. Apart from the
circumstance that the point involved is procedural and not
jurisdictional, petitioners have not shown in what manner they have
been prejudiced by the proceedings. Moreover, as then Solicitor
General Antonio P. Barredo, now a Member of this Court, has
correctly pointed out, the repeated appropriations by Congress for
hearing officers of the Philippine Patent Office from 1963 to
196818 not only confirms the departmental construction of the statute,
but also constitutes a ratification of the
act of the Director of Patents and the Department Head as
agents of Congress in the administration of the law.19
________________
 266

but that this does not require the deciding agency to take the evidence
itself. Southern Garment Mgrs. Asso. v. Fleming, [1941] 74 App DC
228, 122 F 2d 622 x x x.” (18 ALR 2d, section 3, p. 609.)
17 Morgan v. U.S., supra.
18 Rep. Act No. 3845, Items 26-28, p. 2009, for the fiscal year
1963-64; Rep. Act No. 4164, Items 21-24, p. 2204, for the fiscal year
1964-65; Rep. Act No. 4642, Items 22-25, p. 2318, for the fiscal year
1966-67; Rep. Act No. 5170, Items 22-25, p. 2318, for the fiscal year
1967-68.
19 “Any doubt as to the authority of the President under the

Legislative Appropriation Act of June 30, 1932, as amended March 3,

1933, 47 Sta. at L. 413, 1517, to transfer the functions of the United
States Shipping Board to the Department of Commerce by Executive
order, and as to whether the conditions of the exercise of such
authority were met, is set at rest by the subsequent recognition by
Congress of the validity of the transfer in making appropriations to the
Department of Commerce for salaries and expenses to carry out the
provisions of the Shipping Act and in referring, in S 204 (a) of the
Merchant Marine Act of June 29, 1936; 48 Sta. at L. 1985, chap. 858,
to the functions of the Shipping Board as having been vested in the
Department of Commerce pursuant to an executive order.”
(Isbrandtsen-Moller Co. v. United States, 300 U.S. 139-149 [1936], 81
L. ed. 563.)
“The repeated appropriations of the proceeds of the fees thus covered
and to be covered into the Treasury, not only confirms the
departmental construction of the statute, but constitutes a ratification
of the action of the Secretary as the agent of Congress in
297
VOL. 67, OCTOBER 14, 1975 297
Raquiza vs. City of Manila
WHEREFORE, the instant petition is hereby dismissed, with costs
against petitioners.

ADMELEC Cases
 267

respondent Commission on Audit (COA): (1) COA Decision No.

2002-2131 dated September 24, 2002 on the "Request of Mr.
RAMON YAP for reconsideration of the decision of the Director,
Corporate Audit Office II (CAO II), affirming the disallowance of
various allowances and reimbursements paid to him in his capacity
as Vice-President for Finance and Treasurer of the Manila Gas
Corporation (MGC)"; and (2) COA Decision No. 2003-0872 dated
June 17, 2003, denying petitioner’s motion for reconsideration.

The undisputed facts of this case as gathered from the assailed COA
Decision No. 2002-2133 are as follows:

x x x Ramon R. Yap is holder of a regular position of Department

Manager of the National Development Company (NDC), a
government-owned and controlled corporation with original charter.
He was appointed by the Board of Directors, Manila Gas Corporation
(MGC), a subsidiary of NDC as Vice-President for Finance effective
June 14, 1991 while remaining as a regular employee of NDC. The
additional employment entitled him to honoraria equivalent to fifty
percent (50%) of his basic salary at NDC and various allowances
attached to the office.
Inhibitions and Prerequisite
In the course of the regular audit, the Corporate Auditor, MGC issued
the following notices of disallowances against Mr. Ramon R. Yap:
G.R. No. 158562 April 23, 2010
Notice of Date Amount Nature
RAMON R. YAP, Petitioner, Disallowance
vs. ND 99- 03/26/99 ₱3,330.00 Subscription to National Geographic
COMMISION ON AUDIT, Respondent. 03(98)MGC and Reader’s Digest

DECISION ND 99- 04/12/99 2,848.00 Car maintenance allowance

10(98)MGC
LEONARDO-DE CASTRO, J.: 1,500.00 Annual fee of VISA card
ND 99- 04/12/99 789.00 Representation expense on a Sunday
This is a Petition for Certiorari and Prohibition, in accordance with
Rule 65 of the Rules of Court, with application for temporary 12(98)MGC
restraining order (TRO) and/or preliminary injunction. The said
Petition seeks to annul and set aside the following decisions of

ADMELEC Cases
 268

ND 99- 09/09/99 4,180.56 Fellowship with other PCA club "Section 8. x x x

16(98)MGC Members on Sunday
No elective or appointive public officer or employee shall receive
ND 99- 08/28/99 11,500.00 Car maintenance allowance additional, double or indirect compensation, unless specifically
07(98)IIGSI authorized by law, x x x"
ND 99- 08/31/99 7,000.00 Executive check-up
14(98)IIGSI Mr. Yap appealed the Auditor’s disallowances primarily contending
that the questioned benefits were all approved by the MGC Board of
ND 99- 05/26/00 119,508.90 Monthly allowance Directors. x x x x.
09(99)MGC
ND 2000- 03/31/00 2,304.32 Car maintenance allowance Petitioner’s appeal was denied by the CAO II,4 which affirmed the
01(99)MGC MGC Corporate Auditor’s findings that the allowances and
reimbursements at issue were given in violation of Sections 7(2) and
ND 2000- 03/31/00 21,523.00 Monthly allowance 8, Article IX-b of the 1987 Constitution.
08(99)MGC
ND 2000- 03/31/00 445.00 Car maintenance allowance Unperturbed, petitioner sought a reconsideration of the CAO II ruling
07(99)MGC from respondent COA via a Letter5 addressed to the COA Chairman
wherein he argued that his assignment to MGC was required by the
1,862.00 Car maintenance allowance primary functions of his office and was also authorized by law,
namely Executive Order No. 284 issued on July 25, 1987, the
ND 2000- 5/11/00 35,433.70 Gasoline allowance and driver’s pertinent provision of which provides:
01(99)MGC subsidy
SECTION 1. Even if allowed by law or by the primary functions of his
which were predicated on the ground that appellant’s appointment to position, a member of the Cabinet, undersecretary, assistant
MGC in addition to his regular position as Department Manager III of secretary or other appointive official of the Executive Department
NDC and the subsequent receipt of the questioned allowances and may, in addition to his primary position, hold not more than two
reimbursements from the former directly contravened the positions in the government and government corporations and
proscription contained in Section 7 (2) and Section 8, Article IX-b of receive the corresponding compensation therefore: Provided, That
the Constitution to wit: this limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.
"Section 7. x x x (Emphasis supplied.)

Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries."
In turn, respondent COA denied petitioner’s appeal in herein assailed
COA Decision No. 2002-213.6 It upheld the CAO II’s ruling that
characterized the disallowed allowances and reimbursements as
prohibited by the Constitution. Furthermore, it also ruled that the said
allowances and reimbursements claimed by petitioner "failed to pass
the test of ‘public purpose requirement’ of the law" and further
emphasized that "it is not enough that payments made to [petitioner]

ADMELEC Cases

be authorized by the Board of Directors of the MGC but it is likewise
necessary that said payments do not contravene the principles
provided for under Section 4 of [Presidential Decree No.] 1445 on
the use of government funds," more specifically on the public
purpose requirement that is provided in Section 4(2) of Presidential
Decree No. 1445, otherwise known as the Government Auditing
Code of the Philippines, to wit:
Section 4. Fundamental Principles. – Financial transactions and
operations of any government agency shall be governed by the
fundamental principles set forth hereunder, to wit:
xxxx
(2) Government funds or property shall be spent or used solely for
public purposes.
In elaborating this point, respondent COA stated that:
x x x [T]his Commission sees no connection to link payments for
subscription to the National Geographic and Reader’s Digest, car
maintenance allowance, annual fee of VISA card, representation on
a Sunday, a non-working day, fellowship with PCA club members to
social services, promotion of the general welfare, social justice as
well as human dignity and respect for human rights, slum clearance,
low-cost housing, squatter resettlement, urban and agrarian reform
and the like. For it is not enough that payments made to him be
authorized by the Board of Directors of the MGC but it is likewise
necessary that said payments do not contravene the principles
provided for under Section 4 of P.D. 1445 on the use of government
funds.
Viewed from all the foregoing premises, it is regretted that the herein
request for reconsideration of Mr. Yap is DENIED. Accordingly, the
audit disallowances as heretofore mentioned are affirmed in toto. 7
A Motion for Reconsideration8 was subsequently filed by petitioner,
but this was likewise denied by respondent COA in COA Decision
No. 2003-087,9 wherein it ruled that although petitioner was correct
ADMELEC Cases
269
in arguing that there was no legal impediment to the validity of
petitioner’s appointment as Vice-President and Treasurer of MGC
and to his entitlement to compensation for the second office, "[s]ince
the constitutionality of Executive Order No. 284 has been upheld by
the Court insofar as other appointive officials are concerned x x x[,]"
however, "of more important consideration is the condition sine qua
non, that ‘government funds or property shall be spent or used solely
for public purpose’ (Section 4(2), PD 1445)." Therefore, respondent
COA affirmed its original finding that the disallowed allowances and
reimbursements did not satisfy the public purpose requirement. The
dispositive portion of the said Decision reads:
WHEREFORE, premises considered, the instant motion for
reconsideration is hereby DENIED and the assailed COA Decision
No. 2002-213 dated September 24, 2002 is hereby AFFIRMED in
toto.
Hence, this Petition wherein petitioner puts forth the following
grounds in support:
I
RESPONDENT COMMISSION ON AUDIT COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT USED AS A BASIS THE "PUBLIC
PURPOSE" REQUIREMENT IN AFFIRMING THE QUESTIONED
DISALLOWANCES
II
RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION WHEN IT AFFIRMED
THE DISALLOWANCES ON A GROUND [different from the ground]
RELIED UPON BY THE RESIDENT AUDITOR
III

ASSUMING, WITHOUT CONCEDING, THAT THE PUBLIC
PURPOSE REQUIREMENT IS RELEVANT TO THE PRESENT
CASE, RESPONDENT COMMISSION ON AUDIT STILL
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION WHEN IT DISALLOWED ALL THE
ALLOWANCES RECEIVED BY HEREIN PETITIONER"10
We rule to deny the instant Petition.
As regards the first ground, petitioner puts forward the argument that
although it cannot be denied that the MGC, being a government-
owned and controlled corporation, is under the jurisdiction of
respondent COA, the respondent’s act of subjecting the salaries,
allowances and benefits of MGC employees to the "public purpose
test" is not only wrong, but also an act of grave abuse of discretion
since the said salaries, allowances and benefits are intended to
compensate MGC employees for services performed on behalf of the
corporation. According to petitioner, if the "public purpose
requirement" will be applied in auditing these salaries, allowances
and benefits being given to government employees, no such
compensation could ever pass audit, as, by their very nature, they
are solely intended to benefit their recipients, who are the employees
of the government department, office, agency or corporation
concerned.11
We cannot countenance petitioner’s misleading assertion on this
point. The mere act of disbursing public funds to pay the allowances
and salaries of government employees does not by itself constitute
release of government funds for public purpose as petitioner would
want us to believe; otherwise, as petitioner dares to conclude, no
salary, benefit or allowance would ever pass the requisite
government audit. This is a rather simplistic and narrow view of the
nature of government employee compensation. Not unlike other
government expenditures, it is necessary that the release of public
funds to pay the salaries and allowances of government employees
must not contravene the law on disbursement of public funds.
Section 4 of Presidential Decree No. 1445 lays out the basic
guidelines that government entities must follow in disbursing public
funds, to wit:
ADMELEC Cases
270
Section 4. Fundamental principles. – Financial transactions and
operations of any government agency shall be governed by the
fundamental principles set forth hereunder, to wit:
(1) No money shall be paid out of any public treasury or
depository except in pursuance of an appropriation law or
other specific statutory authority.
(2) Government funds or property shall be spent or used
solely for public purposes.
(3) Trust funds shall be available and may be spent only for
the specific purpose for which the trust was created or the
funds received.
(4) Fiscal responsibility shall, to the greatest extent, be
shared by all those exercising authority over the financial
affairs, transactions, and operations of the government
agency.
(5) Disbursements or disposition of government funds or
property shall invariably bear the approval of the proper
officials.
(6) Claims against government funds shall be supported with
complete documentation.
(7) All laws and regulations applicable to financial
transactions shall be faithfully adhered to.
(8) Generally accepted principles and practices of
accounting as well as of sound management and fiscal
administration shall be observed, provided that they do not
contravene existing laws and regulations. (Emphases
supplied.)
To summarize, any disbursement of public funds, which includes
payment of salaries and benefits to government employees and

officials, must (a) be authorized by law, and (b) serve a public
purpose.
In this regard, it is necessary for this Court to elaborate on the nature
and meaning of the term "public purpose," in relation to
disbursement of public funds. As understood in the traditional sense,
public purpose or public use means any purpose or use directly
available to the general public as a matter of right. Thus, it has also
been defined as "an activity as will serve as benefit to [the]
community as a body and which at the same time is directly related
function of government."12 However, the concept of public use is not
limited to traditional purposes. Here as elsewhere, the idea that
"public use" is strictly limited to clear cases of "use by the public" has
been discarded.13 In fact, this Court has already categorically stated
that the term "public purpose" is not defined, since it is an elastic
concept that can be hammered to fit modern standards. It should be
given a broad interpretation; therefore, it does not only pertain to
those purposes that which are traditionally viewed as essentially
government functions, such as building roads and delivery of basic
services, but also includes those purposes designed to promote
social justice. Thus, public money may now be used for the
relocation of illegal settlers, low-cost housing and urban or agrarian
reform.14 In short, public use is now equated with public
interest,15 and that it is not unconstitutional merely because it
incidentally benefits a limited number of persons.16
To our mind, in view of the public purpose requirement, the
disbursement of public funds, salaries and benefits of government
officers and employees should be granted to compensate them for
valuable public services rendered, and the salaries or benefits paid
to such officers or employees must be commensurate with services
rendered. In the same vein, additional allowances and benefits must
be shown to be necessary or relevant to the fulfillment of the official
duties and functions of the government officers and employees. We
cannot accept petitioner’s theory that the compensation and benefits
of public officers are intended purely for the personal benefit of such
officers, or that the mere payment of salaries and benefits to a public
officer satisfies the public purpose requirement. That theory would
lead to the anomalous conclusion that government officers and
employees may be paid enormous sums without limit or without any
ADMELEC Cases
271
justification necessary other than that such sums are being paid to
someone employed by the government. Public funds are the
property of the people and must be used prudently at all times with a
view to prevent dissipation and waste.
With regard to the second ground, petitioner underscores the fact
that respondent COA abandoned the ground of double
compensation as a basis for the questioned disallowances and
affirmed the same on the new ground that the allowances did not
meet the test of "public purpose requirement." Petitioner argues that
this was an arbitrary and whimsical action on the part of respondent
COA, since petitioner had already legally justified his opposition to
the ground originally cited by the MGC Corporate Auditor in support
of the questioned disallowances, and yet respondent COA affirmed
said disallowances on a new ground – failure to pass the "public
purpose requirement" - that was never mentioned in the findings
made by the MGC Corporate Auditor and the CAO II ruling that was
appealed to respondent COA by the petitioner.17 In response,
respondent COA maintains that there is no provision in the
Constitution, the Government Auditing Code or the Administrative
Code that restricts its power and authority to examine and audit
government expenditures to merely reviewing and deciding on the
validity of the findings and conclusions of its auditors.18
In resolving this issue, it is imperative that we examine the powers
vested in respondent COA by the pertinent laws of the land. The
1987 Constitution has made the COA the guardian of public funds,
vesting it with broad powers over all accounts pertaining to
government revenue and expenditures and the uses of public funds
and property including the exclusive authority to define the scope of
its audit and examination, establish the techniques and methods for
such review, and promulgate accounting and auditing rules and
regulations.19 Section 11, Chapter 4, Subtitle B, Title I, Book V of the
Administrative Code of 1987 echoes this constitutional mandate
given to COA, to wit:
Section 11. General Jurisdiction. – (1) The Commission on Audit
shall have the power, authority, and duty to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in trust

by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or
controlled corporations with original charters, and on a post-audit
basis: (a) constitutional bodies, commissions and offices that have
been granted fiscal autonomy under this Constitution; (b)
autonomous state colleges and universities; (c) other government-
owned or controlled corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or equity, directly or
indirectly, from or through the Government, which are required by
law or the granting institution to submit to such audit as a condition of
subsidy or equity. However, where the internal control system of the
audited agencies is inadequate, the Commission may adopt such
measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall keep
the general accounts of the Government and, for such period as may
be provided by law, preserve the vouchers and other supporting
papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the
limitations in this Article, to define the scope of its audit and
examination, establish the techniques and methods required
therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant, or unconscionable
expenditures, or uses of government funds and properties.
In light of these express provisions of law granting respondent COA
its power and authority, we have previously ruled that its exercise of
its general audit power is among the constitutional mechanisms that
give life to the check and balance system inherent in our form of
government.20 Furthermore, we have also declared that COA is
endowed with enough latitude to determine, prevent and disallow
irregular, unnecessary, excessive, extravagant or unconscionable
expenditures of government funds.21
Based on the foregoing discussion and due to the lack or absence of
any law or jurisprudence saying otherwise, we rule that, in resolving
cases brought before it on appeal, respondent COA is not required to
limit its review only to the grounds relied upon by a government
agency’s auditor with respect to disallowing certain disbursements of
ADMELEC Cases
272
public funds. In consonance with its general audit power, respondent
COA is not merely legally permitted, but is also duty-bound to make
its own assessment of the merits of the disallowed disbursement and
not simply restrict itself to reviewing the validity of the ground relied
upon by the auditor of the government agency concerned. To hold
otherwise would render COA’s vital constitutional power unduly
limited and thereby useless and ineffective.
As a third ground for the petition, petitioner also contends that
assuming, without conceding, that the other allowances and benefits
do not pass the "public purpose" test, the rest of the allowances,
such as the basic monthly allowances, executive check-up and the
gasoline allowances should not be disallowed, as they are normally
given to officers of corporations, whether private or government-
owned and controlled.221avvphi1
We cannot uphold petitioner’s plausible but unsubstantiated
argument on this point since, as previously discussed, respondent
COA is in the best position to determine which allowances and
benefits may be properly allowed under the circumstances, as it is
the sole constitutional body mandated to examine, audit and settle all
accounts pertaining to the revenue and receipts of, and expenditures
or uses of funds and property owned or held in trust by, or pertaining
to, the government, including government-owned or controlled
corporations such as the MGC and the NDC in the case at bar. Even
if we assume the truth of petitioner’s assertion that the said
allowances are "normally given," this fact alone does not operate to
preclude respondent COA from performing its constitutional
mandate.1avvphi1
That certain allowances are enjoyed by corporate officers in the
private sector does not justify the grant of the same benefits to
similarly designated public officers, even if they are officers of
government-owned and controlled corporations (GOCCs), which
perform purely proprietary functions. As aptly observed by the
Solicitor General, the funds of GOCCs are still public funds and that
is precisely the reason such funds are subject to audit by the COA.
Thus, there is a valid distinction between the officers of public
corporations and those of private corporations.

To reiterate, the public purpose requirement for the disbursement of
public funds is a valid limitation on the types of allowances and
benefits that may be granted to public officers. It was incumbent
upon petitioner to show that his allowances and benefits were
authorized by law and that there was a direct and substantial
relationship between the performance of his public functions and the
grant of the disputed allowances to him.
While subscriptions to newspapers and magazines by government
offices may be justified, petitioner’s personal subscriptions to
magazines and the annual fee of his credit card cannot ipso facto be
considered as part of his remunerations or benefits as a public
official.
There is likewise no evidence that the purported representation and
"fellowship" expenses on weekends are necessary and related to
petitioner’s work as Vice-President of Finance and Treasurer of the
MGC. We find no reason to believe that as an MGC officer, his
duties include business relations or clientele-building functions, since
a finance officer and treasurer, even in the private sector, is
ordinarily tasked with accounting, disbursement and custody of
corporate funds.
Medical expenses, such as those for an executive check-up, may be
justified if specifically authorized by the appropriate laws, rules or
circulars. However, petitioner failed to point to the existence of such
law or regulation applicable to his case. It also appears from the
records that petitioner already receives medical benefits from the
NDC,23 and that the ground cited by the MGC Corporate Auditor for
the disallowance of his expense for executive check-up was his own
failure to submit appropriate supporting documents to claim such
benefit.24
The COA’s disallowance of the car maintenance, gasoline allowance
and driver’s subsidy was likewise in order since petitioner neither
alleged nor proved that these benefits were also authorized by law or
regulation.25 He did not even allege that the car was an official
company vehicle or that the driver was an employee of the MGC. On
the contrary, the MGC Corporate Auditor found that the vehicle
ADMELEC Cases
273
involved was the personal vehicle of petitioner, although it was
granted to him under an NDC car plan, and that he was already
receiving gasoline and/or transportation allowance from the NDC.26 It
was also found that petitioner reported to the MGC office, at most,
once a week to attend meetings; and documents, which required his
signature, were often brought to him at the NDC.27 Since petitioner
did not dispute these findings, he failed to show that the grant of
similar or additional gasoline and transportation benefits to him by
the MGC was warranted.
In order to demonstrate the legality of the grant of his benefits, it was
insufficient for the petitioner to assert that the disputed allowances
and benefits were approved by the board of directors of the MGC.
Such board action should in itself be authorized by law or regulation
or have valid legal basis. Otherwise, it becomes an illegal corporate
act that is void and cannot be validated.28 In this case, the MGC
board action that permitted the disallowed disbursements was not
shown to have complied with Section 15(d) of both Republic Act No.
8522 and Republic Act No. 8745, otherwise known as the General
Appropriations Act of 1998 and the General Appropriations Act of
1999, respectively, which provide:
Sec. 15. Restrictions on the Use of Government Funds. – No
government funds shall be utilized for the following purposes:
xxxx
d. To pay honoraria, allowances or other forms of compensation to
any government official or employee, except those specifically
authorized by law;
xxxx
The provisions of this Section shall also apply to government- owned
and/or controlled corporations.
On a final note, petitioner claims that respondent COA acted with
grave abuse of discretion since, as a result of the disallowances,
petitioner in effect rendered his services to MGC for free. This,

petitioner points out, would constitute unjust enrichment on the part
of MGC.29
We have ruled before that there is unjust enrichment when a person
unjustly retains a benefit to the loss of another, or when a person
retains the money or property of another against the fundamental
principles of justice, equity and good conscience.30 In the case at
bar, the assailed COA Decision No. 2002-213 dated September 24,
2002 and the CAO II’s 1st Indorsement dated December 12, 2000
recognized that petitioner’s appointment to the Board of Directors of
MGC "entitled him to honoraria equivalent to fifty percent (50%) of
his basic salary at NDC and various allowances attached to the
office."31 Furthermore, petitioner’s own assertion in his Motion for
Reconsideration of COA Decision No. 2002-213 belies his claim of
being totally uncompensated, since petitioner stated therein that "[a]s
the NDC representative in MGC, he was not getting the entire
compensation package for such position."32 Thus, petitioner did not
render his services to MGC for free, because it did not appear that
his honoraria were among the expenditures that were disallowed by
respondent COA.
We have previously declared that it is the general policy of the Court
to sustain the decisions of administrative authorities, especially one
that was constitutionally created like herein respondent COA, not
only on the basis of the doctrine of separation of powers, but also of
their presumed expertise in the laws they are entrusted to enforce. It
is, in fact, an oft-repeated rule that findings of administrative
agencies are accorded not only respect but also finality when the
decision and order are not tainted with unfairness or arbitrariness
that would amount to grave abuse of discretion.33 Thus, only when
the COA acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, may
this Court entertain a petition for certiorari under Rule 65 of the Rules
of Court.34
There is grave abuse of discretion when there is an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law or
to act in contemplation of law as when the judgment rendered is not
based on law and evidence but on caprice, whim and despotism.35 In
the case at bar, we find no grave abuse of discretion on the part of
ADMELEC Cases
274
respondent COA in issuing the assailed Decisions. On the contrary,
we hold that respondent COA’s pronouncements in both assailed
rulings were made in faithful compliance with its mandate and in
judicious exercise of its general audit power as conferred on it by the
Constitution and the pertinent laws.
WHEREFORE, premises considered, the petition is DISMISSED.
The assailed COA Decision No. 2002-213 dated September 24,
2002 and COA Decision No. 2003-087 dated June 17, 2003 are both
AFFIRMED.
SO ORDERED.
G.R. No. 131012 April 21, 1999
HON. RICARDO T. GLORIA, in his capacity as Secretary of the
Department of Education, Culture, and Sports, petitioner,
vs.
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M.
BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR
MARGALLO, respondents.
MENDOZA, J
This case arose out of the unfortunate strikes and walk-outs staged
by public school teachers on different dates in September and
October 1990. The illegality of the strikes was declared in our 1991
decision in Manila Public School Teachers Association
v. Laguio, Jr., 1 but many incidents of those strikes are still to be
resolved. At issue in this case is the right to back salaries of teachers
who were either dismissed or suspended because they did not report
for work but who were eventually ordered reinstated because they
had not been shown to have taken part in the strike, although
reprimanded for being absent without leave.
The facts are as follows:

Private respondents are public school teachers. On various dates in
September and October 1990, during the teachers' strikes, they did
not report for work. For this reason, they were administratively
charged with (1) grave misconduct, (2) gross neglect of duty, (3)
gross violation of Civil Service Law Rules and Regulations and
reasonable office regulations. (4) refusal to perform official duty, (5)
gross insubordination, (6) conduct prejudicial to the best interest of
the service, and (7) absence without leave (AWOL), and placed
under preventive suspension. The investigation was concluded
before the lapse of 90-day suspension and private respondents were
found guilty as charged. Respondent Nicanor Margallo was ordered
dismissed from the service effective October 29, 1990, while
respondents Amparo Abad, Virgilia Bandigas, and Elizabeth
Somebang were ordered suspended for six months effective
December 4, 1990. 2
Respondent Margallo appealed to the Merit Systems and Protection
Board (MSPB) which found him guilty of conduct prejudicial to the
best interest of the service and imposed on him a six-month
suspension. 3 The other respondents also appealed to the MSPB,
but their appeal was dismissed because of their failure to file their
appeal memorandum on time. 4
On appeal, the Civil Service Commission (CSC) affirmed the
decision of the MSPB with respect to Margallo, but found the other
three (Abad, Bandigas, and Somebang) guilty only of violation of
reasonable office rules and regulation, by filing to file applications for
leave of absence and, therefore, reduced the penalty imposed on
them to reprimand and ordered them reinstated to their former
positions.
Respondents filed a petition for certiorari under Rule 65 in this Court.
Pursuant to Revised Administrative Circular No. 1-95, the case
referred to the Court of Appeals which, on September 3, 1996,
rendered a decision (1) affirming the decision of the CSC with
respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang
but (2) reversing it insofar as the CSC ordered the suspension of
Nicanor Margallo. The appellate court found him guilty of violation of
reasonable office rules and regulations only and imposed on him the
penalty of reprimand.
ADMELEC Cases
275
Private respondents moved for a reconsideration, contending that
they should be exonerated of all charges against them and that they
be paid salaries during their suspension. In its resolution, dated July
15, 1997, the Court of Appeals, while maintaining its finding that
private respondents were guilty of violation of reasonable office rules
and regulations for which they should be reprimanded, ruled that
private respondents were entitled to the payment of salaries during
their suspension "beyond ninety (90) days." Accordingly, the
appellate court amended the dispositive portion of its decision to
read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING,
petition is hereby DENIED. CSC Resolution Nos.,
93-2302 dated June 24, 1993 and 93-3124 dated
August 10, 1993 (In re: Amparo Abad), CSC
Resolution Nos. 93-2304 dated June 24, 1993 and
93-3227 dated August 17, 1993 (In re: Virgilia
Bandigas) and CSC Resolution Nos. 93-2301
undated and 93-3125 dated August 10, 1993 (In re:
Elizabeth Somebang) are hereby AFFIRMED while
CSC Resolution Nos. 93-2211 dated June 21, l993
are hereby MODIFIED finding petitioner Nicanor
Margallo guilty of a lesser offense of violation of
reasonable office rules and regulations and meting
upon him the penalty of reprimand. Respondent
DECS is ordered to pay petitioners Amparo Abad,
Virgilia Bandigas, Elizabeth Somebang and Nicanor
Margallo their salaries, allowances and other
benefits during the period of their
suspension/dismissal beyond the ninety (90) day
preventive suspension. No pronouncement as to
costs. 6
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture,
and Sports, moved for a reconsideration insofar as the resolution of
the Court of Appeals ordered the payment of private respondents'
salaries during the period of their appeal. 7 His motion was, however
denied by the appellate court in its resolution of October 6,
1997. 8 Hence, this petition for review on certiorari.

Petitioner contends that the administrative investigation of
respondents was concluded within the 90-day period of preventive
suspension, implying that the continued suspension of private
respondents is due to their appeal, hence, the government of their
salaries. Moreover, petitioner lays so much store by the fact that,
under the law, private respondents are considered under preventive
suspension during the period of their appeal and, for this reason, are
not entitled to the payment of their salaries during their suspension. 9
Petitioner's contentions have no merit.
I. PREVENTIVE SUSPENSION
AND THE RIGHT TO
COMPENSATION IN CASE OF
EXONERATION
The present Civil Service Law is found in Book V, Title I, Subtitle A of
the Administrative Code of 1987 (E.O. 292). So far as pertinent to
the questions in this case, the law provides:
Sec. 47. Disciplinary Jurisdiction
(2) The Secretaries and heads of agencies and
instrumetalities, province, cities and municipalities
shall have jurisdiction to investigate and decide
matters involving disciplinary action against officers
and employees under their jurisdiction. The decision
shall be final in case the penalty imposed is
suspension for not more than thirty days or fine in an
amount not exceeding thirty days salary. In case the
decision rendered by a bureau or office head is
appealable to the Commission, the same may be
initially appealed to the department and finally to the
Commission and pending appeal, the same shall be
executory except when the penalty removal, in
which case the same shall be executory only after
confirmation by the Secretary concerned.
ADMELEC Cases
276
(4) An appeal shall not stop the decision from being
executory, and in case the penalty is suspension or
removal, the respondent shall be considered shall
be considered having been under preventive
suspension during the pendency of the appeal in the
event he wins an appeal.
Sec. 51. Preventive Suspension. — The proper
disciplining authority may preventively suspend any
subordinate officer or employee under his authority
pending as investigation, if the charge against such
officers or employee involves dishonesty,
oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to
believe that the respondent is guilty of charges
which would warrant his removal from the service.
Sec. 52. Lifting of Preventive Suspension, Pending
Administrative Investigation. — When the
administrative case against the officers or employee
under preventive suspension is not finally decided
by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service: Provided, That when the delay in the
disposition of the case is due to the fault, negligence
or petition of the respondents, the period of delay
shall not be counted in computing the period of
suspension herein provided.
There are thus two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or
suspension: (1) preventive suspension pending investigations (§51)
and (2) preventive suspension pending appeal if the penalty imposed
by the disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated (§ 47(4)).

Preventive suspension pending investigation is not a penalty. 10 It is
a measure intended to enable to enable the disciplining authority to
investigate charges against respondent by preventing the latter from
intimidating or any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered within that
period, the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he should be reinstated.
A. No Right to Compensation for Preventive Suspension Pending
Investigation Even if Employee is Exonerated
Is he entitled to the payment of salaries during the period of
suspension? As already stated, the Court of Appeals ordered the
DECS to pay private respondents their salaries, allowances, and
other benefits "beyond the ninety (90) day suspension." In other
words, no compensation was due for the period of the preventive
suspension pending investigation but only for the period of
preventive suspension pending appeal in the event the employee is
exonerated.
The separate opinion of Justice Panganiban argues that the
employee concerned be paid his salaries after his suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for the
payment of such salaries in case of exoneration. Sec. 35 read:
Sec. 35. Lifting of Preventive Suspension Pending
Administrative Investigation. — When the
administrative case against the officer or employee
under preventive suspension is not finally decided
by the Commissioner of Civil Service within the
period of sixty (60) days after the date of suspension
of the respondent, the respondent shall be
reinstated in the service. If the respondent officers or
employee is exonerated, he shall be restored to his
position with pay for the period of suspension. 11
ADMELEC Cases
277
However, the law was revised in 1975 and the provision on the
payment salaries during suspension was deleted. Sec. 42 of the Civil
Service Decree (P.D. No. 807) read:
Sec. 42. Lifting of Preventive Suspension Pending
Administrative Investigation. — When the
administrative case against the officers or employee
under preventive suspension is not finally decided
by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service; Provided, That when the delay in the
disposition of the case is due to the fault, negligence
or petition of the respondent, the period of delay
shall not be counted in computing the period of
suspension herein provided.
This provision was reproduced in §52 of the present Civil
Service Law. It is noteworthy that the Ombudsman Act of
1989 (R.A. No. 6770) categorically provides that preventive
suspension shall be "without pay." Sec. 24 reads:
Sec. 24. Preventive Suspension. — The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority
pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge
against such officer or employee involves
dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the
respondents continued stay in office may prejudice
the case filed against him.
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.
It is clear that the purpose of the amendment is to disallow the
payment of salaries for the period of suspension. This conclusion is
in accord with the rule of statutory construction that —
As a rule, the amendment by deletion of certain
words or phrases in a statute indicates that the
legislature intended to change the meaning of the
statute, for the presumption is that the legislature
would not have made the deletion had the intention
been not in effect a change in its meaning. The
amended statute should accordingly be given a
construction different from that previous to its
amendment. 12
The separate opinion of Justice Panganiban pays no heed to the
evident legislative intent to deny payment of salaries for the
preventive suspension pending investigation.
First, it says that to deny compensation for the period of preventive
suspension would he to reverse the course of decisions ordering the
payment of salaries for such period. However, the cases 13 cited are
based either on the former rule which expressly provided that "if the
respondent officer or employee is exonerated, he shall be restored to
his position with full pay for the period of suspension" 14 or that "upon
subsequent reinstatement of the suspended person or upon his
exoneration, if death should render reinstatement impossible, any
salary so withheld shall be paid, 15 or on cases which do not really
support the proposition advanced.
Second, it is contended that the exoneration of employees who have
been preventively suspended is proof that there was no reason at all
to suspend them and thus makes their preventive suspension a
penalty.
ADMELEC Cases
278
The principle governing entitlement to salary during suspension is
cogently stated in Floyd R. Mechem's A Treatise on the Law of
Public Offices and Officers as follows:
§864. Officer not entitled to Salary during
Suspension from
Office. — An officer who has been lawfully
suspended from his office is not entitled to
compensation for the period during which he was so
suspended, even through it be subsequently
determined that the cause for which he was
suspended was insufficient. The reason given is
"that salary and perquisites are the reward of
express or implied services, and therefore cannot
belong to one who could not lawfully perform such
services." 16
Thus, it is not enough that an employee is exonerated of the charges
against him. In addition, his suspension must be unjustified. The
case of Bangalisan v. Court of Appeals itself similarly states that
"payment of salaries corresponding to the period [1] when an
employee is not allowed to work may be decreed if he is found
innocent of the charges which caused his suspension and [2] when
the suspension is unjustified. 17
The preventive suspension of civil service employees charged with
dishonesty, oppression or grave misconduct, or neglect of duty is
authorized by the Civil Service Law. It cannot, therefore, be
considered "unjustified," even if later the charges are dismissed so
as to justify the payment of salaries to the employee concerned. It is
one of those sacrifices which holding a public office requires for the
public good. For this reason, it is limited to ninety (90) days unless
the delay in the conclusion of the investigation is due to the
employee concerned. After that period, even if the investigation is
not finished, the law provides that the employee shall be
automatically reinstated.
Third, it is argued in the separate opinion that to deny employees
salaries on the "frivolous" ground that the law does not provide for

their payment would be to provide a "tool for the oppression of civil
servants who, though innocent, may be falsely "charged of grave or
less grave administrative offenses." Indeed, the possibility of abuse
is not an argument against recognition of the existence of power. As
Justice Story aptly it, "It is always a doubtful course, to argue against
the use or existence of a power, from the possibility of its abuse. . . .
[For] from the very nature of things, the absolute right of decision, in
the last resort, must rest somewhere — wherever it may be vested it
is susceptible of abuse." 18 It may be added that if and when such
abuse occurs, that would be the time for the courts to exercise their
nay-saying function. Until then, however, the public interest in an
upright civil service must be upheld.
Finally, it is argued that even in the private sector, the law provides
that employees who are unjustly dismissed are entitled to
reinstatement with full pay. But that is because R.A. No. 6715
expressly provides for the payment to such employees of "full
backwages, inclusive of allowances, and . . . other benefits or their
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement." 19 In the
case of the public sector, as has been noted, the provision for
payment of salaries during the preventive suspension pending
investigation has been deleted.
B. Right to Compensation for Preventive Suspension
Pending Appeal if Employee is Exonerated
But although we hold that employees who are preventively
suspended pending investigation are not entitled to the payment of
their salaries if they are exonerated, we do not agree with the
government that they are not entitled to compensation for the period
of their suspension pending appeal if eventually they are found
innocent.
Preventive suspension pending investigation, as already discussed,
is not a penalty but only means of enabling the disciplining authority
to conduct an unhampered investigation. On the other hand,
preventive suspension pending appeal is actually punitive although it
ADMELEC Cases
279
is in effect subsequently considered illegal if respondent is
exonerated and the administrative decision finding him guilty is
reversed. Hence, he should be reinstated with full pay for the period
of the suspension. Thus, §47(4) states that respondent "shall be
considered as under preventive suspension during the pendency of
the appeal in the event he wins." On the other hand, if his conviction
is affirmed, i.e., if he is not exonerated, the period of his suspension
becomes part of the final penalty of suspension or dismissal.
It is precisely because respondent is penalized before his sentence
is confirmed that he should be paid his salaries in the event he is
exonerated. It would be unjust to deprive him of his pay as a result of
the immediate execution of the decision against him and continue to
do so even after it is shown that he is innocent of the charges for
which he was suspended. Indeed, to sustain the government's theory
would be to make the administrative decision not only executory but
final and executory. The fact is that §47(2) and (4) are similar to the
execution of judgment pending appeal under Rule 39, §2 of the
Rules of Court. Rule 39, §5 provides that in the event the executed
judgment is reversed, there shall be restitution or reparation of
damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision
meting out the penalty of suspension or dismissal shall be
immediately executory and that if the respondent appeals he shall be
considered as being merely under preventive suspension if
eventually he prevails is taken from §37 of the Civil Service Decree
of 1975 (P.D No. 807). There was no similar provision in the Civil
Service Act of 1959 (R.A. No. 2260), although under it the
Commissioner of Civil Service could order the immediate execution
of an administrative decision in the interest of the public
service. 20 Nor was there provision for immediate execution of
administrative decisions ordering dismissal or suspension in §695 of
the Administrative Code of 1917, as amended by C.A. No. 598,
§1. 21 Nonetheless, under R.A. No. 2260 the payment of salaries was
ordered in cases in which employees were found to be innocent of
the charges 22 or their suspension was held to be unjustified,
because the penalty of suspension or dismissal was executed
without a finding by the Civil Service Commissioner that it was
necessary "in the interest of the public service." 23 On the other hand,

payment of back salaries was denied where it was shown that the
employee concerned was guilty as charged and the immediate
execution of the decision was ordered by the Civil Service
Commissioner "in the interest of the public service." 24
Nothing in what has thus far been said is inconsistent with the
reason for denying salaries for the period of preventive suspension.
We have said that an employee who is exonerated is not entitled to
the payment of his salaries because his suspension, being
authorized by law, cannot but unjustified. To be entitled to such
compensation, the employee must not only be found innocent of the
charges but his suspension must likewise be unjustified. But through
an employee is considered under preventive suspension during the
pendency of his appeal in the event he wins, his suspension is
unjustified because what the law authorizes is preventive suspension
for a period not exceeding 90 days. Beyond that period the
suspension is illegal. Hence, the employee concerned is entitled to
reinstated with full pay. Under existing jurisprudence, such award
should not exceed the equivalent of five years pay at the rate last
received before the suspension was imposed. 25
II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES
ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE
RULES AND REGULATIONS AND REPRIMANDED
Private respondents were exonerated of all charges against them for
acts connected with the teachers' strikes of September and October
1990. Although they were absent from work, it was not because of
the strike. For being absent without leave, they were held liable for
violation of reasonable offices rules and regulations for which the
penalty is a reprimand. Their case thus falls squarely within ruling
in Bangalisan, which likewise involved a teacher found guilty of
having violated reasonable office rules and regulations. Explaining
the grant of salaries during their suspension despite the fact that they
were meted out reprimand, this Court stated:
ADMELEC Cases
280
With respect to petitioner Rodolfo Mariano, payment
of his backwages is in order. A reading of the
resolution of the Civil Service Commission will show
that he was exonerated of the charges which formed
the basis for his suspension. The Secretary of the
DECS charged him with and he was later found
guilty of grave misconduct, gross neglect of duty,
gross violation of the Civil Service Law, rules and
regulations and reasonable office regulations,
refusal to perform official duty, gross
insubordination, conduct prejudicial to the best
interest of the service, and absence without official
leave, for his participation in the mass actions on
September 18, 20 and 21, 1990. It was his alleged
participation in the mass actions that was the basis
of his preventive suspension and, later, his dismissal
from the service.
However, the Civil Service Commission, in the
questioned resolution, made a finding that Mariano
was involved in the "mass actions" but was absent
because he was in Ilocos Sur to attend the wake
and interment of his grandmother. Although the CSC
imposed upon him the penalty of reprimand, the
same was for his violation of reasonable office rules
and regulations because he failed to inform the
school of his intended absence and neither did he
file an application for leave covering such absences.
Under Section 23 of the Rule Implementing Book V
of Executive Order No. 292 and other pertinent civil
service laws, in violations of reasonable office rules
and regulations, the first offense is punishable by
reprimand. To deny petitioner Mariano his back
wages during his suspension would be tantamount
to punishing him after his exoneration from the
charges which caused his dismissal from the
service. 26
 281

In Jacinto v. Court of Appeals, 27 a public school who was found Puno, Pardo, Buena, Ynares-Santiago, JJ., we joined the separate
guilty of violation of reasonable office rules and regulations for opinion of Justice Panganiban.
having been absent without leave and reprimanded was given back
salaries after she was exonerated of the charge of having taken part
in the strikes.

Petitioner Secretary of Education contends, however, that

respondent Abad, Bandigas, and Somebang signed a letter in which
they admitted having taken part in the mass action. This question
cannot be raised now. The Civil Service Commission gave no weight
to this letter in view of individual letters written by three citing Separate Opinions
reasons for their absences, to wit: Abad, because he decided to stay
home to correct students papers; Bandigas, because she had to
accompany her brother to the Commission on Immigration, and
Somebang because of "economic reasons." Petitioner did not appeal PANGANIBAN, J., separate opinion;
from this ruling. Hence, he is bound by the fanctual findings of the
CSC and the appellate court. I concur with the ponencia insofar as it denies the petition and
affirms the Court of Appeals Decision and Resolutions finding private
WHEREFORE, the decision, dated September 3, 1996, as amended respondents guilty only of violation of office rules and regulations,
by the resolutions, dated July 15, 1997 and October 6, 1997, of the meting upon them the penalty of reprimand and reinstating them in
Court of Appeals, is hereby AFFIRMED with the MODIFICATION the civil service.
that the award of salaries to private respondents shall be computed
from the time of their dismissal/suspension by the Department of I beg to disagree, however, insofar as it deprives private respondents
Education, Culture, and Sports until their actual reinstatement, for a their back salaries corresponding to the entire period of their
period not exceeding five years. preventive suspension.

SO ORDERED. Private Respondents Liable

Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima and
Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., in the result and subject to its modification
expressed in its separate opinion of Mr. Justice Panganiban.
Melo, J., in the result.
Panganiban, J., please see separate opinion.
for Violation of Reasonable
Office Rules and Regulations
Like the majority, I do not find any reversible error or abuse of
discretion in the factual finding of the Court of Appeals that private
respondents did not actually participate in the September 1991 mass
actions staged in violation of law by various public schoolteachers.
They were, however, found to have absented themselves from their
classes without filing an application for leave of absence. For this
lapse, they indeed deserve a reprimand, pursuant to Section 23,

ADMELEC Cases

Rule XIV (Discipline) of the Rules Implementing the Civil Service
Law, as well as existing jurisprudence which I shall cite later.
Private Respondents Entitled
to Back Salaries Without
Qualification or Deduction
Mr. Justice Mendoza's ponencia defines two kinds of preventive
suspension for civil service employees charged with offenses
punishable with removal or suspension: "(1) preventive suspension
pending investigation (§51) and (2) preventive suspension pending
appeal if the penalty imposed by the disciplining authority is
suspension or dismissal but, after review, the respondent is
exonerated (§47(4)). 1
Accordingly, the esteemed justice makes a distinction in the grant of
back salaries. In the first instance, he says, the suspended
employees (pending investigation) are NOT entitled to back pay,
regardless of whether they are eventually exonerated from the
charges for which they were investigated. However, if and when they
are exonerated after appeal, they may be granted back salaries, but
only those corresponding to the appeal or review period until actual
reinstatement, and not exceeding five years.
This stance being adopted by the majority reverses several
unanimous en banc decisions, in which this Court ordered payment
of back salaries without qualification or deduction. In Miranda
v. Commission on Audit, 2 noting that the applicable law mandated
that preventive suspension should not be longer than 90 days,
deemed Miranda's suspension for almost eight (8) years
unreasonable and unjustified. It thus resolved that he was entitled to
back wages for the period of his suspension not exceeding five (5)
years, consistent with existing jurisprudence. 3
In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner
Mariano "be given back wages without deduction or qualification
from the time he was suspended until his actual reinstatement which,
ADMELEC Cases
282
under prevailing jurisprudence, should not exceed five years." The
Court ruled: "To deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after his
exoneration from the charges which [had] caused his dismissal from
the service." 5
The same rationale was given in Jacinto v. Court of Appeals, 6 in
which we also granted Petitioner Jacinto "back wages, without
deduction or qualification, from the time she was suspended until her
actual reinstatement, the total of which, under prevailing
jurisprudence, should not exceed five years."
In fact, in Garcia v. Chairman, Commission on Audit, 7 where the
petitioner, several years after he had been summarily dismissed from
the government service purportedly for dishonesty, was granted
executive clemency "not because of lack of sufficient proof of his
commission of the offense
but . . ., more importantly, he did not commit the offense charged,"
the Court found it "fair and just to award petitioner full back wages
from 1 April 1975 when he was illegally dismissed, to 12 March 1984
when he was reinstated, . . . without deduction or qualification."
Empathizing with petitioner, the Court
held: 8
. . . Verily, law equity and justice dictate that
petitioner be afforded compassion for the
embarrassment, humiliation and, above all, injustice
caused to him and his family by his unfounded
dismissal. This Court cannot help surmising the
painful stigma that must have caused petitioner, the
incursion on his dignity and reputation, for having
been adjudged, albeit wrongfully, a dishonest man . .
.
Indeed, where the suspension of civil servants has, from the very
beginning, no reason other than to ensure an unhampered
investigation, there is no justification for withholding their salaries,
whether immediately upon investigation or after appeal or petition for
review, much less after their exoneration. They need not even be

found fully innocent of any misdemeanor, as the public school-
teachers concerned in Bangalisan and Jacinto who were actually
found to have violated reasonable office rules and regulations. Such
administrative offense, however, is punishable with reprimand only,
not suspension or dismissal. Hence, they were granted their back
salaries for the period of their suspension, because they had not
committed any grave act warranting their suspension.
The rationale for the grant of back salaries to suspended public
servants is their exoneration from the charges leveled against them
that were punishable with either dismissal or suspension. Needless
to say, only when the charges carry either of these extreme
administrative penalties may they be preventively suspended
pending investigation. If, after investigation, they are found to be
innocent or culpable of lesser offenses not punishable with
suspension or dismissal, they must be immediately reinstated AND
granted full back salaries corresponding to the period of their
suspension. In the first place, if they have been found to be not guilty
of any offense warranting even just a suspension, there is no
justifiable reason to deprive them of work and of income therefor. In
these cases, their preventive suspension must be deemed
unjustified.
The majority admits that preventive suspension pending investigation
is not a penalty, but is only a means of enabling the disciplining
authority to conduct an unhampered investigation. 9 Not being a
penalty, there is therefore NO reason to deny employees their
salaries for such period, especially after they are proven innocent of
any offense punishable with suspension or dismissal. I respectfully
submit that to withhold an exonerated employee's pay for such
period would in fact transform the nature of preventive suspension
into a penalty — a penalty which is unauthorized by law, in
contravention of the fundamental right of every individual to due
process, and therefore unconstitutional.
The "no-work-no-pay" principle should not be applied in these cases.
We must consider that, ordinarily, suspended employees are willing
to work, but they do not have a choice. Because of some serious
charges leveled against them, they are not allowed to report for
work. Investigations may take up to ninety (90) days or three (3)
ADMELEC Cases
283
months. In the meantime, they do not receive their salaries and other
benefits. And yet, the charges against them may have been baseless
or aggravated without good reason, in which case their suspensions
are unjustified ab initio. In these instances, I repeat, it is but right to
grant them full back pays.
Admittedly, the purpose behind preventive suspensions pending
investigation is noble. It is intended to enable the disciplining
authorities or the investigating officials to probe the charges against
respondents by preventing the latter from intimidating or in any was
influencing witnesses against them. 10 But, I submit, it would be
totally unfair to respondents who are undeserving of the penalty of
suspension or dismissal to be deprived of their salaries for such
period. To repeat, they cannot be faulted for not rendering any work
during the period of preventive suspension, because that is merely
what the law mandates.
Significantly, the Civil Service Law does not state that exonerated
employees are not entitled to back salaries corresponding to the
preventive suspension period. Such silence of the law should
not ipso facto be interpreted as a denial of the right, pursuant to rules
on statutory construction. In any event, the rules on the interpretation
of laws are mere tools used to ascertain legislative intent. 11 They are
not necessarily applicable at all times, particularly when the intention
to change the meaning of the previous law is not clear. In the case of
the present Civil Service Law, which is found in Executive Order No.
292 issued by then President Corazon Aquino in the exercise of her
legislative powers under the Freedom Constitution, its legislative
purpose cannot be clearly established, because it has no recorded
deliberations from which to verify such intent. Consequently, we
should not completely rely on the general rule on amendment by
deletion. 12 We should nor hold the omission of words in the later
statute as necessarily altering the construction of the earlier one, for
we may do so only "where the intent of the legislature to make such
change is clear of construction." 13
In any event, in the absence of an express prohibition on the
payment of back salaries, any doubt should be settled in favor of the
employee. As our fundamental law explicitly mandates, "The State
shall afford full protection to labor . . ." 14 This Court has invariably

declared that it will not hesitate to tilt the scales of justice in favor of
the working class, for the Constitution dictates that "the State . . .
shall protect the rights of workers and promote their
welfare." 15 There is no reason not to apply this principle in favor of
civil service employees as well, for they are very much part of the
working class. And the government as their employer should set the
example in upholding the constitutional mandate to safeguard their
rights and interests.
Needless to say, our Construction stands above all laws; more so,
above any treatise including that of Mechem which
the ponencia cites. The interpretation of general laws on public
officers in foreign jurisdictions has no application in the present case,
as our law has no explicit injunction against the payment of back
salaries for preventively suspended employees. Moreover, the
United States Constitution provides no express mandate, similar to
that found in our Constitution, to "afford full protection to labor" and
to "protect the rights of workers and promote their welfare."
The grant of back pay is a matter not merely of compassion and
mercy for employees temporarily suspended from work but, more
important, of justice and equity. The exoneration of the employees
proves that there was no reason at all to suspend them in the first
place. To deny them their incomes on the frivolous ground that the
law does not expressly provide for the grant thereof would provide a
tool for the oppression of civil servants who, though innocent, may
be falsely charged of grave or less grave administrative offenses. It
plainly opens the door to harassment of public officials and
employees by unjustly depriving them of their meager incomes and
consequently subjecting them and their families to difficult
circumstances.
Even in the private sector, the law and the existing jurisprudence
grant employees who are unjustly dismissed from work not only
reinstatement without loss of seniority rights and other privileges, but
also full back wages, inclusive of allowances and other benefits or
benefits or their monetary equivalent, computed from the time their
compensation was withheld from them up to the time they were
actually reinstated. 16
ADMELEC Cases
284
Civil Service Law Different
from Ombudsman Act
In this regard, I believe the Civil Service Law should be distinguished
from the Ombudsman Act (RA 6770) which categorically and
expressly provides that the suspended employee who is exonerated
after preventive suspension is entitled to reinstatement, but not back
salaries, viz.:
Sec. 24. Preventive suspension. — The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority
pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge
against such officer or employee involves
dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice
the case filed against him.
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.
(Emphasis supplied.)
Hence, in Callanta v. Ombudsman, 17 although some of the
petitioners were only reprimanded by the Court for violation of the
Ethical Standards Law, no back pay was awarded.
WHEREFORE, I vote to DENY the petition and to GRANT private
respondents full back salaries, without qualification or deduction,

from the time of suspension, including the period of preventive
suspension, until actual reinstatement.
G.R. No. 156039. August 14, 2003.*
HON. KARINA CONSTANTINO-DAVID, HON. JOSE F. ERESTAIN,
JR., and HON. WALDEMAR V. VALMORES, in their capacities as
Chairman and Commissioners, respectively, of the CIVIL SERVICE
COMMISSION, petitioners, vs. ZENAIDA D. PANGANDAMAN-
GANIA, respondent.
Actions; Pleadings and Practice; Appeals; When the trial court
loses jurisdiction over the case.—Where all the parties have either
thus perfected their appeals by filing their notices of appeal in due time
and the period to file such notice of appeal has lapsed for those who
did not do so, then the trial court loses jurisdiction over the case as of
the filing of the last notice of appeal or the expiration of the period to
do so for all the parties.
Same; Same; Same; What should guide judicial action is the
principle that a party-litigant is to be given the fullest opportunity to
establish the merits of his complaint or defense.—As commented
in Obut v. Court of Appeals, “we cannot look with favor on a course of
action which would place the administration of justice in a
straightjacket for then the result would be a poor kind of justice, if there
would be justice at all. Verily, judicial orders x x x are issued to be
obeyed, nonetheless a non-compliance is to be dealt with as the
circumstances attending the case may warrant. What should guide
judicial action is the principle that a party-litigant is to be given the
fullest opportunity to establish the merits of his complaint or defense
rather than for him to lose life, liberty, honor or property on
technicalities.”
Same; Same; Certification of non-forum shopping; Substantial
Compliance; definition in every inquiry on whether to accept
“substantial compliance”, the focus is always on the presence of
equitable-conditions to administer justice effectively and efficiently
without damage or injury to the spirit of the legal obligation.—By its
very nature, “substantial compliance” is actually inadequate
observance of the requirements of a rule or regulation which are
waived under equitable circumstances to facilitate the administration
of justice there being no damage or injury caused by such flawed
compliance. This concept is expressed in the statement “the rigidity of
ADMELEC Cases
285
a previous doctrine was thus subjected to an inroad under the concept
of substantial compliance.” In every inquiry on whether to accept
“substantial compliance,” the focus is always on the presence of
equitable
_______________
*
EN BANC.
81
VOL. 409, AUGUST 14, 2003 81
Constantino-David vs. Pangandaman-Gania
conditions to administer justice effectively and efficiently without
damage or injury to the spirit of the legal obligation.
Civil Service Law; Civil Service Commission; Illegal
Dismissal; An illegally dismissed government employee who is later
ordered reinstated is entitled to back wages and other monetary
benefits from the time of his illegal dismissal up to his reinstatement.—
An illegally dismissed government employee who is later ordered
reinstated is entitled to back wages and other monetary benefits from
the time of his illegal dismissal up to his reinstatement. This is only fair
and sensible because an employee who is reinstated after having
been illegally dismissed is considered as not having left his office and
should be given a comparable compensation at the time of his
reinstatement.
Same; Same; Same; If the illegal dismissal is found to have
been made in bad faith by the superior officers then they will be held
personally accountable for the employees back salaries.—If the illegal
dismissal, including the refusal to reinstate an employee after a finding
of unlawful termination, is found to have been made in bad faith or due
to personal malice of the superior officers then they will be held
personally accountable for the employee’s back salaries; otherwise,
the government disburses funds to answer for such arbitrary
dismissal.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.

BELLOSILLO, J.:
“A system of procedure is perverted from its proper function when it
multiplies impediments to justice without the warrant of clear
necessity,” so says Cardozo—an observation especially apt in the
instant case involving the payment of back wages and other benefits
resulting from the illegal dismissal of an employee due to improper
personnel and non-disciplinary action. The disquieting procedural
steps risked by respondent before the Court of Appeals, the tendency
of the appellate court to overlook most of them, the doggedness of the
Solicitor General to venture others, when neither the court a quo nor
the parties to the case appear perturbed that elementary rules of
procedure were either indulgently brushed aside or subtly exploited
one after the other, do not leave us en-
82
82 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
snared in borderline technical maneuvers, or so it is said, being too
impotent to address the pith of this controversy.
Respondent Zenaida D. Pangandaman-Gania is a Director II and
Manila Information and Liaisoning Officer of the Mindanao State
University (MSU). She has been holding this position after the
confirmation of her appointment by the MSU Board of Regents on 1
June 1995.
On 2 October 1998 respondent received a copy of Special Order
No. 477-P dated 28 September 1998 designating a certain Agnes
Mangondato as Acting Director in her place in view of the alleged
expiration of her term and was no longer allowed to report for work.
She verified the status of her appointment and found out that her
appointment was not submitted to the Civil Service Commission for
attestation.
Respondent immediately brought the matter to the CSC for a ruling
on the validity of the termination of her employment.1 In Resolution
No. 00-1265 dated 24 May 2000 the CSC upheld her dismissal for lack
of attestation and prolonged absence without official leave from the
time she was removed from her post in September 1998 as a result of
Special Order No. 477-P.
Respondent moved for reconsideration. In Resolution No. 01-0558
dated 8 March 2001 the CSC found merit in her motion, declared her
removal from office as illegal, exonerated her from the charge of being
ADMELEC Cases
286
on absence without official leave and ordered her reinstatement as
Director II and Manila Information and Liaisoning Officer of MSU but
disallowed the payment of back salaries for the period she was not
working as a result of the illegal dismissal. The CSC explained the
non-payment of her back wages—
Be that as it may, the incumbency of Dr. Gania is governed by the
principle of “quantum meruit” (as you work so shall you earn). In other
words, her entitlement to compensation depends on her actual
performance of work. Short of approval by the Commission, the
appointment while already effective, by itself is not a basis for payment
of salary but the assumption of duties of her office x x x x Such being
the case, Dr. Gania is
_______________
1The complaint of respondent falls under “Other Personnel and
Non-Disciplinary Actions” of the Revised Uniform Rules on
Administrative Cases in the Civil Service.
83
VOL. 409, AUGUST 14, 2003 83
Constantino-David vs. Pangandaman-Gania
not entitled to compensation for the period that she was not reporting
to work.2
MSU moved for reconsideration of CSC Resolution No. 01-0558 dated
8 March 2001, while respondent moved for its early execution.
In Resolution No. 01-1225 dated 19 July 2001, the CSC denied MSU’s
motion for reconsideration and ordered its President to allow
respondent to assume and exercise the functions of Manila
Information and Liaisoning Officer.
MSU appealed from the denial of its motion for reconsideration
under Rule 43 of the 1997 Rules of Civil Procedure, docketed as CA-
G.R. No. SP-66188, to the Court of Appeals, but the appellate court
did not issue any restraining order or injunction to prevent the
execution of the resolution on appeal.
Respondent did not seek a review of any of the resolutions of the
CSC including the order denying back salaries and other benefits for
the period she was out of work. She instead pursued her prayer for
reinstatement but MSU refused to employ her back. Hence, she was
compelled to file a second motion for the execution of CSC Resolution

No. 01-0558 dated 8 March 2001, citing Sec. 82 of the Revised
Uniform Rules on Administrative Cases in the Civil Service, which
states that “[t]he filing and pendency of petition for review with the
Court of Appeals or certiorari with the Supreme Court shall not stop
the execution of the final decision of the Commission unless the Court
issues a restraining order or an injunction.”
In Resolution No. 01-1616 dated 4 October 2001 the CSC granted
respondent’s motion and held that “CSC Resolution No. 01-0558
dated 8 March 2001 has attained finality and must be immediately
implemented,” as it again ordered, the MSU President to reinstate
respondent.
On 8 October 2001 respondent for the first time questioned the
portion of CSC Resolution No. 01-0558 dated 8 March
2001 prohibiting the payment of back wages and other benefits to her
for the period that her employment was terminated, and moved for the
modification of the resolution by granting her the relief prayed for.
On 29 October 2001 the Court of Appeals dismissed MSU’s
petition for review on the ground that the certificate of non-forum
_______________
2 CA Rollo, p. 31.
84
84 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
shopping was not personally signed by pertinent officers of the
university but by its counsel of record. 3 MSU moved for
reconsideration of the dismissal.
On 12 December 2001, there being still no action on her request
to be paid her back salaries and other benefits, respondent moved for
an immediate ruling thereon.
On 21 February 2002 the Court of Appeals denied MSU’s motion
for reconsideration of the dismissal of its petition for review for lack of
merit.
On 28 February 2002 the CSC in Resolution No. 02-0321 denied
respondent’s motion—
Since nowhere in the records does it show that [respondent Gania]
actually assumed and performed the duties of her position, it logically
follows that there can be no basis for the grant of back salaries in her
favor.4
ADMELEC Cases
287
Without the aid of an attorney, respondent appealed CSC Resolution
No. 02-0321 dated 28 February 2002 to the Court of Appeals under
Rule 43 of the 1997 Rules of Civil Procedure, docketed as CA-G.R.
SP No. 69668. In her petition for review, she did not mention that she
did not seek a review of CSC Resolution No. 01-0558 dated 8 March
2001 which was the real object of her appeal.5 In addition, she
impleaded only the petitioners herein, Chairperson Karina
Constantino-David and Commissioners Jose F. Erestain, Jr. and
Waldemar V. Valmores of the CSC, but did not name as party-
respondent the Mindanao State University or any of its officers.
In its Comment before the Court of Appeals, the CSC through the
Office of the Solicitor General (OSG) rebuffed respondent’s claim for
back wages since she allegedly failed to actually assume the position
of Director II and Manila Information and Liaisoning Officer of MSU.
But the CSC did not assail the procedural infirmi-
_______________
3 Resolution penned by Associate Justice Eugenio S. Labitoria and
concurred in by Associate Justices Teodoro P. Regino and Rebecca
de Guia-Salvador of the Seventh Division.
4 CA Rollo, p. 68.
5 Sec. 34, Rule 138, Rules of Court, authorizes a party to litigate
his case personally.
85
VOL. 409, AUGUST 14, 2003 85
Constantino-David vs. Pangandaman-Gania
ties of respondent’s petition and appeared contented to refute just the
substantial arguments thereof.
On 28 October 2002 the Court of Appeals partially found merit in
respondent’s petition for review.6 Apparently failing to note that
respondent did not appeal from the denial of her claim for payment of
back salaries in CSC Resolution No. 01-0558 dated 8 March
2001, which she found objectionable, the Court of Appeals concluded
that—
x x x petitioner had assumed and had been exercising the functions
[at MSU] as early as June 1995, after the MSU Board of Regents
approved her permanent appointment which was issued earlier x x x
on April 10, 1995. It was only in September 1998, when she was

terminated from service on the alleged ground of expiration of term,
that she was prevented from performing the functions of her position.7
The Court of Appeals ruled that back wages should be paid to
respondent from the time of her illegal dismissal until she was ordered
reinstated by the CSC as Director II of MSU on 8 March 2001, but
excluded the period after the CSC had ordered MSU to admit
respondent back to work since the damages she suffered for that
period were chargeable in the proper forum against the MSU
President who in bad faith refused to abide by the relevant CSC
resolutions.
On 3 January 2003 the OSG filed the instant petition for review
under Rule 45, 1997 Rules of Civil Procedure, allegedly in behalf of
the petitioners named herein, and also signed for them the verification
and certification of non-forum shopping. The OSG asserted as
grounds for review the principle recognizing finality to factual findings
of quasi-judicial agencies as well as its puzzling statement that “[w]hile
the dismissal of herein respondent was declared illegal, she was,
however, not exonerated from the charges. Hence, respondent is not
entitled to back wages.”8 Once again the OSG did not call attention to
procedural defects in the petition of respondent before the Court of
Appeals.
_______________
6
Decision penned by Associate Justice Elvi John S. Asuncion and
concurred in by Associate Justices Conrado M. Vasquez Jr. and
Sergio L. Pestaño.
7 Rollo, p. 26.
8 Id., p. 7.
86
86 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
Respondent filed in her own behalf a Comment claiming that the CSC
cannot be a party-petitioner in a case where its decision is the subject
of review, citing Civil Service Commission v. Court of Appeals.9 As to
whether respondent actually assumed the duties of Director II, she
referred not only to the finding of the Court of Appeals that she had
assumed office and worked for MSU as early as June 1995 but also
to the voluminous records of MSU showing that she reported for work
ADMELEC Cases
288
until her illegal dismissal in September 1998.10 She also manifested
that she was reinstated to her job on 18 September 2002 while the
proceedings before the Court of Appeals were ongoing although she
was not paid her salary and other benefits. In
another Manifestation before this Court, she affirmed that her salary
as well as RATA and other benefits for the month of September 2002
were paid on 23 April 2003.
We deny the instant petition for review. It is true that respondent
had lost the right to ask for the modification of CSC Resolution No. 01-
0558 dated 8 March 2001 and to demand compensation for her back
salaries and other benefits. She did not move for the reconsideration
of this resolution within fifteen (15) days from receipt thereof11 nor did
she file a petition for its review within the same period under Rule 43
of the 1997 Rules of Civil Procedure.12 To be sure, both the CSC and
respondent herself admitted the finality of the Resolution and acted
upon it when she was granted an order for its execution.
Meanwhile, MSU filed its petition for review with the Court of
Appeals (CA-G.R. No. SP-66188) assailing CSC Resolution No. 01-
0558 dated 8 March 2001 and CSC Resolution No. 01-1225 dated 19
July 2001 denying MSU’s motion for reconsideration.
Ordinarily, under the foregoing circumstances, neither the Civil
Service Commission nor the Court of Appeals has jurisdiction to direct
the substantial amendment of CSC’s relevant resolutions upon the
behest of respondent.13 The principle governing ordinary
_______________
9 G.R. No. 126354, 15 December 1999, 320 SCRA 703.
10 See CA Rollo, pp. 119-175.
11 Revised Uniform Rules on Administrative Cases in the Civil
Service, Rule VI, Sec. 80.
12 See Sec. 4.
13 Pefianco v. Moral, G.R. No. 132248, 19 January 2000, 322
SCRA 439; Gloria v. Court of Appeals, G.R. No. 131012, 21 April
1999, 306 SCRA 287; Manaloto v. Santos, No. L-21262, 31
December 1965, 15 SCRA 690;
87
VOL. 409, AUGUST 14, 2003 87
Constantino-David vs. Pangandaman-Gania

appeal from the Regional Trial Court to the Court of Appeals applies
suppletorily14 mutatis mutandis—
x x x where all the parties have either thus perfected their appeals by
filing their notices of appeal in due time and the period to file such
notice of appeal has lapsed for those who did not do so, then the trial
court loses jurisdiction over the case as of the filing of the last notice
of appeal or the expiration of the period to do so for all the parties.15
This rule is also articulated in Associated Bank v. Gonong16 where we
held that only after all the parties’ respective periods to appeal shall
have lapsed that the court loses its jurisdiction over the case. What is
left as residual jurisdiction of the Civil Service Commission pertains
only to matters for the protection and preservation of the rights of the
parties which do not involve any matter litigated by the appeal or the
immediate execution of its resolutions under the Revised Uniform
Rules on Administrative Cases in the Civil Service. This is to ensure
the orderly disposition of the case at both the levels of the CSC and
the appellate court.17
Nonetheless, we cannot inflexibly dwell on the defect of a belated
appeal and coldly thwart a review of the instant case. For it cannot be
denied that even after acknowledging the finality of Resolution No. 01-
0558 dated 8 March 2001, the CSC still entertained the twin motions
of respondent on 8 October 2001 and 12 December 2001 to modify
the same resolution and insert therein an order for the payment of
back wages. The CSC in fact promulgated Resolution No. 02-0321
dated 28 February 2002 denying respondent’s importunate motions
for the reason that she allegedly
_______________
Government of the Philippines v. Antonio, No. L-23736, 19
October 1965, 15 SCRA 119; Montejo v. Cabangon, No. L-17977, 30
May 1962, 5 SCRA 166; Vito v. Lacson, No. L-16173, 23 December
1961, 3 SCRA 666.
14 Revised Uniform Rules on Administrative Cases in the Civil
Service, Rule I, Sec. 3.
15 I F.D. Regalado, Remedial law Compendium 508 (1997).
16 G.R. No. 77353, 30 July 1987,152 SCRA 478.
17 Under Sec. 49 of the Civil Service Law (Subtitle A, Title I, Book
V of E.O. 292), a motion or petition for reconsideration takes
precedence over an appeal where both parties opt to exercise their
ADMELEC Cases
289
respective rights to question the decision in an administrative
case, i.e., one of the parties moves for reconsideration while the other
party files an appeal or petition for review. See Simsim v.
Belmonte, No. L-25388, 31 August 1970, 34 SCRA 536.
88
88 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
did not report for work but not because they were already time-barred.
No doubt, the Civil Service Commission was in the legitimate
exercise of its mandate under Sec. 3, Rule I, of the Revised Uniform
Rules on Administrative Cases in the Civil Service that “[administrative
investigations shall be conducted without necessarily adhering strictly
to the technical rules of procedure and evidence applicable to judicial
proceedings.” This authority is consistent with its powers and functions
to “[prescribe, amend and enforce rules and regulations for carrying
into effect the provisions of the Civil Service Law and other pertinent
laws” being the central personnel agency of the Government.18
Furthermore, there are special circumstances in accordance with
the tenets of justice and fair play that warrant such liberal attitude on
the part of the CSC and a compassionate like-minded discernment by
this Court.19 To begin with, respondent was consistently denied
reinstatement by the responsible officers of MSU and vehemently
barred from resuming her previous position. The first order for her
return to work was issued on 8 March 2001 which was followed by
repeated personal appeals for the immediate execution of the CSC
resolution.20 Thereafter, when respondent was still forced out of work,
the CSC issued its second and third orders on 19 July 2001 and 4
October 2001, respectively, for the President of MSU to restore her to
the item from which she was illegally dismissed. As these private
requests and official directives were cruelly rejected by her employer
and the period of her unemployment was unduly prolonged,
respondent had no choice and was compelled to ask for back salaries
and other benefits to offset the callous repudiation of what was due
her.
To prevent respondent from claiming back wages would leave
incomplete the redress of the illegal dismissal that had been done
_______________
18 Civil Service Law, Secs. 1 and 12.

19 Republic v. Court of Appeals, Nos. L-31303-04, 31 May
1978, 83 SCRA 453; Paulino v. Court of Appeals, No. L-46723, 28
October 1977, 80 SCRA 257.
20 The Revised Uniform Rules on Administrative Cases in the Civil
Service, Rule VI, Sec. 82, provides that “[t]he filing and pendency of
petition for review with the Court of Appeals or certiorari with the
Supreme Court shall not stop the execution of the final decision of the
Commission unless the Court issues a restraining order or an
injunction.”
89
VOL. 409, AUGUST 14, 2003 89
Constantino-David vs. Pangandaman-Gania
to her and amount to endorsing the wrongful refusal of her employer
or whoever was accountable to reinstate her. A too-rigid application of
the pertinent provisions of the Revised Uniform Rules on
Administrative Cases in the Civil Service as well as the Rules of
Court will not be given premium where it would obstruct rather than
serve the broader interests of justice in the light of the prevailing
circumstances in the case under consideration.
As commented in Obut v. Court of Appeals,21 “we cannot look with
favor on a course of action which would place the administration of
justice in a straightjacket for then the result would be a poor kind of
justice, if there would be justice at all. Verily, judicial orders x x x are
issued to be obeyed, nonetheless a non-compliance is to be dealt with
as the circumstances attending the case may warrant. What should
guide judicial action is the principle that a party-litigant is to be given
the fullest opportunity to establish the merits of his complaint or
defense rather than for him to lose life, liberty, honor or property on
technicalities.”
The same principle of liberality may also be drawn upon to gloss
over the failure of respondent to implead MSU as party-respondent in
the petition before the Court of Appeals while joining only herein
petitioners as Chairman and Commissioners of the CSC to answer her
petition. While as a rule it would have been necessary to adhere to
this practice,22 in the instant case no one among the Court of Appeals,
the CSC and the Office of the Solicitor General saw it fit to name or
cause to be included MSU as party-respondent. Indeed,
the Comment of the OSG argued on the merits as if it was acting in
unison with respondent’s employer, stressing all possible claims that
ADMELEC Cases
290
may be alleged to defeat respondent’s petition. Ultimately, what is
crucial is that both CSC and MSU are part of the same bureaucracy
that manages and supervises government personnel, and as such,
represent a common interest on the question raised in the petition to
be defended by the same core
_______________
21
No. L-40535, 30 April 1976, 70 SCRA 546, 554.
22
See 1997 Rules of Civil Procedure, Rule 43, Sec. 6 where public
respondent is merely a nominal or formal party; E.O. 292, Bk. VII,
Chap. 4, Sec. 25 (3) which provides “[t]he action for judicial review
may be brought against the agency, or its officers, and all
indispensable and necessary parties as defined in the Rules of
Court;” Pastor v. City of Pasig, G.R. No. 146873, 9 May
2002; Calderon v. Solicitor General, G.R. Nos. 103752-53, 25
November 1992, 215 SCRA 876.
90
90 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
of lawyers from the OSG or the Office of the Government Corporate
Counsel (OGCC).23
Justifiably, where no injury has been done as probably all lines of
reasoning to oppose the petition have been asserted by parties of the
same principal and brought to the fore in the proceedings a quo, and
considering further that the underlying principle in the administration
of justice and application of the rules is substance rather than form,
reasonableness and fair play in place of formalities, we deem it
apposite to except this particular case from the rigid operation of the
procedure for the joinder of parties.
In any event, none of these procedural defects were raised as an
issue on appeal and are now deemed waived. Of course we are not
surprised that the OSG did not touch on these procedural issues and
would seemingly prefer a ruling squarely on the issue of respondent’s
entitlement to back wages. As its services are paid for by taxpayers’
money, the OSG ought to be the foremost officers of the court who in
suitable cases must delve into the real concerns.
Unfortunately, the OSG also treaded upon technically precarious
grounds when it filed the petition in the name of the CSC and signed
the verification and certificate of non-forum shopping in behalf of its

client. Sure enough, respondent vigorously objects to the standing of
the CSC as party-petitioner in the instant petition, citing our ruling
in Civil Service Commission v. Court of Appeals.24
That the CSC may appeal from an adverse decision of the Court
of Appeals reversing or modifying its resolutions which may seriously
prejudice the civil service system is beyond doubt. In Civil Service
Commission v. Dacoycoy25 this Court held that the CSC may become
the party adversely affected by such ruling and the aggrieved party
who may appeal the decision to this Court.
The situation where the CSC’s participation is beneficial and
indispensable often involves complaints for administrative offenses,
such as neglect of duty, being notoriously undesirable, inefficiency
and incompetence in the performance of official duties, and the like,
where the complainant is more often than not acting merely as a
witness for the government which is the real party injured by
_______________
23 The Mindanao State University was incorporated as a State
University under RA 1387 (1955) as amended.
24 See Note 9.
25 G.R. No. 135805, 29 April 1999, 306 SCRA 425.
91
VOL. 409, AUGUST 14, 2003 91
Constantino-David vs. Pangandaman-Gania
the illicit act. In cases of this nature, a ruling of the Court of Appeals
favorable to the respondent employee is understandably adverse to
the government, and unavoidably the CSC as representative of the
government may appeal the decision to this Court to protect the
integrity of the civil service system
The CSC may also seek a review of the decisions of the Court of
Appeals that are detrimental to its constitutional mandate as the
central personnel agency of the government tasked to establish a
career service, adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness and courtesy in the civil
service, 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. Nonetheless, the right of the CSC to appeal the
ADMELEC Cases
291
adverse decision does not preclude the private complainant in
appropriate cases from similarly elevating the decision for review. 26
The ruling in Civil Service Commission v. Dacoycoy was further
explained in Civil Service Commission v. Court of Appeals27 where we
held that the real party-in-interest in a case involving the non-renewal
of the appointments of contractual employees would be the person
who was allegedly dismissed from work and not the CSC, for it is he
who would be benefited or injured by his reinstatement or non-
reinstatement and who is present, available and competent to bring
the matter on appeal. Like a judge whose order or decision is being
assailed, the CSC should not be joined in the petition as it is not a
combatant in a proceeding where opposing parties may contend their
respective positions without the active participation of the CSC. 28
In the instant case, the CSC is not the real party-in-interest as this
suit confronts the Decision of the Court of Appeals to award back
wages for respondent arising from an illegitimate personnel and non-
disciplinary action of MSU, which is different from an administrative
disciplinary proceeding where the injured party is the government. We
fail to see how the assailed Decision can impair the effectiveness of
government, damage the civil service sys-
_______________
26
Philippine National Bank v. Garcia, Jr., G.R. No. 141246, 9
September 2002, 388 SCRA 485.
27 See Note 9.
28 See Calderon v. Solicitor General, supra Note 22.
92
92 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
tem or weaken the constitutional authority of the CSC so as to
authorize the latter to prosecute this case. As a rule, the material
interest for this purpose belongs to MSU since it instigated the illegal
dismissal and the execution of the Decision devolves upon it.29
Regrettably, however, respondent cannot insist that MSU be the
indispensable party in the instant petition since the latter was not
designated as respondent in the petition before the Court of Appeals.
It would truly be a case of having her cake and eating it too for
respondent to require MSU to undertake the present appeal from the
assailed Decision when it was deprived of standing in the appellate

court proceedings and unilaterally booted out as a prospective litigant
herein. Hence, by force of circumstances, the CSC has the standing
to initiate the instant petition for review.
Moreover, the OSG executed the verification and certificate of non-
forum shopping in behalf of the CSC, citing as bases therefor City
Warden of the Manila City Jail v. Estrella,30 and Commissioner of
Internal Revenue v. S.C. Johnson and Son, Inc.31 Some clarification
is in order to avoid perpetuating a misconception.
City Warden of the Manila City Jail v. Estrella is not an authority
for the OSG to execute verification and certification of non-forum
shopping on its own as legal representative of client agencies. The
reason is that the OSG was in that case acting as a “People’s Tribune”
regardless of the official opinion of the relevant government agencies
therein—
That the City Warden appears to have acquiesced in the release order
of the trial court by his compliance therewith does not preclude the
Solicitor General from taking a contrary position and appealing the
same. The Solicitor General’s duty is to present what he considers
would legally uphold the best interest of the Government 32 (italics
added).
Hence, there was no necessity for the verification and certificate of
non-forum shopping to be executed by the City Warden himself. To be
sure, it would have been awkward and irregular for the City Warden to
do so given that his position was not the same as those
_______________
29 See Pastor v. City of Pasig, supra, Note 22.
30 G.R. No. 141211, 31 August 2001, 364 SCRA 257.
31 G.R. No. 127105, 25 June 1999, 30 SCRA 87.
32 See Note 30.
93
VOL. 409, AUGUST 14, 2003 93
Constantino-David vs. Pangandaman-Gania
reflected in the petition of the OSG. No doubt, the real party-in-interest
is the OSG itself as representative of the State. 33 In Pimentel v.
Commission on Elections34 we held—
x x x the Solicitor General may, as it has in instances take a position
adverse and contrary to that of the Government on the reasoning that
ADMELEC Cases
292
it is incumbent upon him to present to the court what he considers
would legally uphold the best interest of the government although it
may run counter to a client’s position x x x x As we commented on the
role of the Solicitor General in cases pending before this Court, “This
Court does not expect the Solicitor General to waver in the
performance of his duty. As a matter of fact, the Court appreciates the
participation of the Solicitor General in many proceedings and his
continued fealty to his assigned task. He should not therefore desist
from appearing before this Court even in those cases he finds his
opinion inconsistent with the Government or any of its agents he is
expected to represent. The Court must be advised of his position just
as well.”35
But the rule is different where the OSG is acting as counsel of record
for a government agency. For in such a case it becomes necessary to
determine whether the petitioning government body has authorized
the filing of the petition and is espousing the same stand propounded
by the OSG. Verily, it is not improbable for government agencies to
adopt a stand different from the position of the OSG since they weigh
not just legal considerations but policy repercussions as well. They
have their respective mandates for which they are to be held
accountable, and the prerogative to determine whether further resort
to a higher court is desirable and indispensable under the
circumstances.
The verification of a pleading, if signed by the proper officials of the
client agency itself, would fittingly serve the purpose of attesting that
the allegations in the pleading are true and correct and not the product
of the imagination or a matter of speculation, and that the pleading is
filed in good faith. Of course, the OSG may opt to file its own petition
as a “People’s Tribune” but the representation would not be for a client
office but for its own perceived best interest of the State.
_______________
33 See C.R. Villacorta, “The Sixteenth Justice: Balancing of
Interests in the Office of the Solicitor General,” XIV Law. Rev. 31 July
2001, pp. 4, 6.
34 G.R. No. 126394, 24 April 1998, 289 SCRA 586.
35 Id., at p. 595, citing Orbos v. Civil Service Commission, G.R.
No. 92561, 12 September 1990, 189 SCRA 459.
94

94 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
The case of Commissioner of Internal Revenue v. S.C. Johnson and
Son, Inc., is not also a precedent that may be invoked at all times to
allow the OSG to sign the certificate of non-forum shopping in place
of the real party-in-interest. The ruling therein mentions merely that
the certification of non-forum shopping executed by the OSG
constitutes substantial compliance with the rule since “the OSG is the
only lawyer for the petitioner, which is a government agency mandated
under Section 35, Chapter 12, Title III, Book IV, of the 1987
Administrative Code (Reiterated under Memorandum Circular No. 152
dated May 17, 1992) to be represented only by the Solicitor
General.”36
By its very nature, “substantial compliance” is actually inadequate
observance of the requirements of a rule or regulation which are
waived under equitable circumstances37 to facilitate the administration
of justice38 there being no damage or injury caused by such flawed
compliance.39 This concept is expressed in the statement “the rigidity
of a previous doctrine was thus subjected to an inroad under the
concept of substantial compliance.”40 In every inquiry on whether to
accept “substantial compliance,” the focus is always on the presence
of equitable conditions to administer justice effectively and efficiently
without damage or injury to the spirit of the legal obligation.
We have ruled previously41 that substantial compliance with the
certificate of non-forum shopping is sufficient. The equitable
circumstances pleaded to show substantial compliance include the
proximity of the filing of the complaint to the date of the effectivity of
the circular requiring the certificate and the belated filing
_______________
36See Note 31.
37Ruga v. National Labor Relations Commission, G.R. Nos.
72654-61, 22 January 1990, 181 SCRA 266.
38 Porac Trucking v. Court of Appeals, G.R. No. 81093, 6 March
1990,183 SCRA 45.
39 In The Matter of the Intestate Estate of Andres G. De Jesus and
Bibiana Roxas De Jesus, Roxas v. De Jesus, No. L-38338, 28
January 1985, 134 SCRA 245; Vda. de Roldan v. Roldan, No. L-
19601, 31 March 1966, 16 SCRA 479.
ADMELEC Cases
293
40Garcia v. Court of Appeals, No. L-34620, 29 April 1977, 76
SCRA 609.
41 Kavinta v. Castillo, G.R. No. 117083,27 October 1995, 249
SCRA 604.
95
VOL. 409, AUGUST 14, 2003 95
Constantino-David vs. Pangandaman-Gania
thereof, but the mere submission thereof after the filing of a motion to
dismiss does not ipso facto operate as a substantial compliance.42 As
summarized in Bank of the Philippine Islands v. Court of
Appeals43 “[w]hen a strict and literal application of the rules on non-
forum shopping and verification will result in a patent denial of
substantial justice, they may be liberally construed. This guideline is
especially true when the petitioner has satisfactorily explained the
lapse and fulfilled the requirements in its motion for reconsideration.”
The fact that the OSG under the 1987 Administrative Code is the
only lawyer for a government agency wanting to file a petition, or
complaint for that matter, does not operate per se to vest the OSG
with the authority to execute in its name the certificate of non-forum
shopping for a client office. For, in many instances, client agencies of
the OSG have legal departments which at times inadvertently take
legal matters requiring court representation into their own hands
without the intervention of the OSG. 44 Consequently, the OSG would
have no personal knowledge of the history of a particular case so as
to adequately execute the certificate of non-forum shopping; and even
if the OSG does have the relevant information, the courts on the other
hand would have no way of ascertaining the accuracy of the OSG’s
assertion without precise references in the record of the case.
Thus, unless equitable circumstances which are manifest from the
record of a case prevail, it becomes necessary for the concerned
government agency or its authorized representatives to certify for non-
forum shopping if only to be sure that no other similar case or incident
is pending before any other court.
We recognize the occasions when the OSG has difficulty in
securing the attention and signatures of officials in charge of
government offices for the verification and certificate of non-forum
shopping of an initiatory pleading. This predicament is especially true
where the period for filing such pleading is non-extendible or can no
longer be further extended for reasons of public interest

_______________
42Ibid.
43G.R. No. 146923, 30 April 2003, 402 SCRA 449.
44 See e.g. CA Rollo, pp. 79-80, 83-86 where the Civil Service
Commission filed with the Court of Appeals its own pleading captioned
“Manifestation In Lieu of Comment” which the Office of the Solicitor
General in its counter-manifestation asked the appellate court to
disregard.
96
96 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
such as in applications for the writ of habeas corpus, in election cases
or where sensitive issues are involved. This quandary is more
pronounced where public officials have stations outside Metro Manila.
But this difficult fact of life within the OSG, equitable as it may
seem, does not excuse it from wantonly executing by itself the
verification and certificate of non-forum shopping. If the OSG is
compelled by circumstances to verify and certify the pleading in behalf
of a client agency, the OSG should at least endeavor to inform the
courts of its reasons for doing so, beyond instinctively citing City
Warden of the Manila City Jail v. Estrella and Commissioner of
Internal Revenue v. S.C. Johnson and Son, Inc.
Henceforth, to be able to verify and certify an initiatory pleading for
non-forum shopping when acting as counsel of record for a client
agency, the OSG must (a) allege under oath the circumstances that
make signatures of the concerned officials impossible to obtain within
the period for filing the initiatory pleading; (b) append to the petition or
complaint such authentic document to prove that the party-petitioner
or complainant authorized the filing of the petition or complaint and
understood and adopted the allegations set forth therein, and an
affirmation that no action or claim involving the same issues has been
filed or commenced in any court, tribunal or quasi-judicial agency; and,
(c) undertake to inform the court promptly and reasonably of any
change in the stance of the client agency.
Anent the document that may be annexed to a petition or complaint
under letter (b) hereof, the letter-endorsement of the client agency to
the OSG, or other correspondence to prove that the subject matter of
the initiatory pleading had been previously discussed between the
ADMELEC Cases
294
OSG and its client, is satisfactory evidence of the facts under letter (b)
above. In this exceptional situation where the OSG signs the
verification and certificate of non-forum shopping, the court reserves
the authority to determine the sufficiency of the OSG’s action as
measured by the equitable considerations discussed herein.
Finally, after our lengthy discourse on the technical imperfections
afflicting the instant case, we resolve the substantive issue of whether
respondent is entitled to receive back salaries and other benefits for
the period that she was illegally dismissed. Obviously, the answer is
in the affirmative.
97
VOL. 409, AUGUST 14, 2003 97
Constantino-David vs. Pangandaman-Gania
There is more than substantial evidence in the record consisting of the
general payroll and attendance sheets to prove that petitioner
assumed and exercised the functions of Director II and Manila
Information and Liaisoning Officer at MSU as early as June 1995 after
the MSU Board of Regents approved her permanent appointment
which was issued earlier on 10 April 1995.45 It cannot be refuted that
in September 1998 she was terminated from the service on the alleged
ground of expiration of her term and stopped from performing the
functions of her position, and subsequently reinstated to her job upon
the declaration of the CSC that her dismissal from the service was
illegal. Clearly, the CSC gravely erred when thereafter it ruled that
respondent did not actually assume and perform the duties of her
position so as to deprive her of back wages and other benefits.
In Gabriel v. Domingo46 this Court held that an illegally dismissed
government employee who is later ordered reinstated is entitled to
back wages and other monetary benefits from the time of his illegal
dismissal up to his reinstatement. This is only fair and sensible
because an employee who is reinstated after having been illegally
dismissed is considered as not having left his office and should be
given a comparable compensation at the time of his reinstatement.
Respondent cannot be faulted for her inability to work or to render
any service from the time she was illegally dismissed up to the time of
her reinstatement. The policy of “no work, no pay” cannot be applied
to her, for such distressing state of affairs was not of her own making
or liking even as her family suffered tremendously as a consequence
of her removal and while she was jobless. Verily, to withhold her back
salaries and other benefits during her illegal dismissal would put to

naught the constitutional guarantee of security of tenure for those in
the civil service.
We also agree with the Court of Appeals that MSU cannot be made
to pay all accruing back salaries and other benefits in favor of
respondent. There are allegations to the effect that officials of MSU
disobeyed in bad faith the writ of execution issued by the CSC.
In Gabriel v. Domingo47 we held that if the illegal dismissal,
_______________
45 CA Rollo, pp. 119-175.
46 G.R. No. 87420, 17 September 1990, 189 SCRA 674.
47 Ibid.
98
98 SUPREME COURT REPORTS ANNOTATED
Constantino-David vs. Pangandaman-Gania
including the refusal to reinstate an employee after a finding of
unlawful termination, is found to have been made in bad faith or due
to personal malice of the superior officers then they will be held
personally accountable for the employee’s back salaries; otherwise,
the government disburses funds to answer for such arbitrary
dismissal.48 This rule is also enunciated in Secs. 3849 and 3950 of Book
I, E.O. 292, and in Secs. 53,51 55,52 5653 and
_______________
48See also Dumlao v. Court of Appeals, 199 Phil. 442; 114 SCRA
247 (1982); Correa v. CFI of Bulacan, L-46096, July 30, 1979, 92
SCRA 312; Mindanao Realty Corp. v. Kintanar, No. L-17152, 30
November 1962, 6 SCRA 814; Tabuena v. Court of Appeals, No. L-
16290, 31 October 1961, 3 SCRA 413.
49 Sec. 38. Liability of Superior Officers.—(1) A public officer shall
not be civilly liable for acts done in the performance of his official
duties, unless there is a clear showing of bad faith, malice or gross
negligence. (2) Any public officer who, without just cause, neglects to
perform a duty within a period fixed by law or regulation, or within a
reasonable period if none is fixed, shall be liable for damages to the
private party concerned without prejudice to such other liability as may
be prescribed by law. (3) A head of a department or a superior officer
shall not be civilly liable for the wrongful acts, omissions of duty,
negligence, or misfeasance of his subordinates, unless he has
ADMELEC Cases
295
actually authorized by written order the specific act or misconduct
complained of.
50 Sec. 39. Liability of Subordinate Officers.—No subordinate
officer or employee shall be civilly liable for acts done by him in good
faith in the performance of his duties. However, he shall be liable for
willful or negligent acts done by him which are contrary to law, morals,
public policy and good customs even if he acted under orders or
instructions of his superiors.
51 Sec. 53. The head of department or agency or any responsible
official who willfully and deliberately refuses or fails to implement or
execute the final resolution or decision of the Commission to the
prejudice of the party affected or the public in general shall be liable
for contempt of the Commission. In case the decision directed
payment of back salaries, the head of the department shall be made
liable in his personal capacity for the payment of said salaries and
other monetary benefits corresponding to the period of delay in the
implementation of said decision, order or ruling.
52Sec. 55. Indirect contempt shall be imposed only after due
proceedings. Indirect contempt may be committed through any of the
following acts or omissions: (a) disobedience or resistance to a lawful
writ, process, order, decision, resolution, ruling, summons, subpoena
or command of, or injunction of the Commission x x x x
53 Sec. 56. If the respondent is adjudged guilty of indirect contempt
committed against the Commission, he may be punished by a fine of
not more than One Thousand Pesos (P1,000.00) for every act of
indirect contempt x x x x If the contempt consists in the violation of an
injunction or omission to do an act which is still within the power of the
respondent to perform, the respondent shall, in addition, be made
liable for all damages as a consequence thereof.
99
VOL. 409, AUGUST 14, 2003 99
Constantino-David vs. Pangandaman-Gania
5854 of Rule XIV of the Omnibus Civil Service Rules and Regulations.
Accordingly, MSU as a government institution must compensate
respondent with back salaries and other benefits only from the time of
her illegal dismissal, which according to the case record began
sometime in October 1998, until the motion for reconsideration of the
MSU was denied and a writ of execution for respondent’s
reinstatement as Director II and Manila Information and Liaisoning
 296

Officer was issued. The reckoning period is not 8 March 2001 as Pangandaman-Gania and exercise the functions of her position with
determined by the appellate court but 19 July 2001 when CSC the promulgation of CSC Resolution No. 01-1225.
Resolution No. 01-1225 was promulgated wherein the motion for This is without prejudice to respondent’s claim for back salaries
reconsideration of the MSU was denied with finality and the latter was and other benefits in the appropriate forum corresponding to the
explicitly commanded to allow respondent to assume and exercise the period after 19 July 2001 until she is actually reinstated as Director II
functions of Director II and Manila Information and Liaisoning Officer. and Manila Information and Liaisoning Officer.
For, a final decision of the CSC is immediately executory unless a SO ORDERED.
motion for reconsideration is filed in the meantime.55
The back wages and other benefits accruing after 19 July 2001 are
to be treated separately since they must be collected in the proper
forum wherein the assertions of malice and ill will in the failure to
reinstate respondent to her post are threshed out and the concerned
parties given the full opportunity to be heard. Until such separate
proceeding has been instituted and decided, it is premature to fix the
liability for this portion of respondent’s back wages and other benefits ELO L. GALANG, petitioner, vs. LAND BANK OF THE PHILIPPINES,
upon either the government as represented by MSU or the respondent.
accountable officers thereof.
WHEREFORE, the instant Petition for Review is DENIED. G.R. No. 175282. May 31, 2011.*
The Decision of the Court of Appeals dated 28 October 2002 is LAND BANK OF THE PHILIPPINES, petitioner, vs. ISABELO L.
AFFIRMED except that the cut-off date for the payment of back GALANG, respondent.
salaries to respondent should be adjusted from the date of her illegal
Labor Law; Illegal Dismissals; Back Wages; It is settled that an
dismissal to “19 July 2001,” instead of “8 March 2001,” since it was
illegally terminated civil service employee is entitled to back salaries
only on 19 July 2001 that MSU’s motion for reconsideration was
limited only to a maximum period of five years, and not full back
_______________
salaries from his illegal termination up to his reinstatement.—It is
54
settled that an illegally terminated civil service employee is entitled to
Sec. 58. Damages sustained by the aggrieved party shall refer
back salaries limited only to a maximum period of five years, and not
to the total amount of his or her salaries and other money benefits
full back salaries from his illegal termination up to his reinstatement.
which shall have accrued to the latter had the final order, decision,
Hence, in Galang’s case, he is entitled to back salaries from July 1990
resolution, ruling, injunction or processes of the Commission been
to June 1995. This is not disputed by the parties. Rather, the
enforced/implemented immediately.
55 Revised Uniform Rules on Administrative Cases in the Civil
uncertainty centers on when he should be reinstated.
Judgments; Appeals; Well-entrenched is that judgment or order
Service, Rule VI, Sec. 80; Omnibus Civil Service Rules and
becomes final upon the lapse of the period to appeal, without an
Regulations, Rule XIV, Sec. 50.
_______________
100
* EN BANC.
100 SUPREME COURT REPORTS ANNOTATED
Lariosa vs. Bandala 575
denied and the order of execution finally issued by the Civil Service
Commission specifically directing MSU to reinstate respondent VOL. 649, MAY 31, 2011 575
Galang vs. Land Bank of the Philippines

ADMELEC Cases

appeal being perfected or a motion for reconsideration being
filed.—Well-entrenched is that a judgment or order becomes final
upon the lapse of the period to appeal, without an appeal being
perfected or a motion for reconsideration being filed. In this case, Land
Bank received notice of the CA Resolution dated September 5, 1997
on September 15, 1997. Thus, it had fifteen (15) days from September
15, 1997, or until September 30, 1997 to file an appeal. Yet, Land
Bank did not do so. Instead, it filed a petition for certiorari with this
Court on November 14, 1997.
Labor Law; Illegal Dismissals; Back Wages; Concomitant with
reinstatement is the payment of back salaries. Section 59(e) of the
Uniform Rules on certain penalties provides that in case the penalty
imposed is dismissal, he shall immediately be reinstated without loss
of seniority rights with payment of back salaries.—Concomitant with
reinstatement is the payment of back salaries. Section 59(e) of
the Uniform Rules on Administrative Cases in the Civil Service on the
effect of exoneration on certain penalties provides that in case the
penalty imposed is dismissal, he shall immediately be reinstated
without loss of seniority rights with payment of back salaries. It was
enunciated in Philippine Amusement and Gaming Corporation v.
Salas, 386 SCRA 94 (2002), that: “When an official or employee was
illegally dismissed and his reinstatement has later been ordered, for
all legal purposes he is considered as not having left his office.
Therefore, he is entitled to all the rights and privileges that accrue to
him by virtue of the office he held.”
Same; Same; Same; Back wages represent the compensation
that should have been earned but were not collected because of the
unjust dismissal. This includes other monetary benefits attached to the
employee’s salary following the principle that an illegally dismissed
government employee who is later reinstated is entitled to all the rights
and privileges that accrue to him by virtue of the office held.—Back
wages represent the compensation that should have been earned but
were not collected because of the unjust dismissal. This includes other
monetary benefits attached to the employee’s salary following the
principle that an illegally dismissed government employee who is later
reinstated is entitled to all the rights and privileges that accrue to him
by virtue of the office he held. Pertinent to this case, Republic Act
(R.A.) No. 6758, otherwise known as the Compensation and Position
Classification Act of 1989, was enacted
576
ADMELEC Cases
297
576 SUPREME COURT REPORTS
ANNOTATED
Galang vs. Land Bank of the Philippines
on July 1, 1989 to integrate certain benefits received by
government official and employees into their salaries.
Same; Same; Same; Representation and Transportation
allowance or RATA; Representation and Transportation Allowance or
RATA is a fringe benefit distinct from salary. It is paid only to certain
officials who, by the nature of their offices, incur representation and
transportation expenses.—Representation and Transportation
Allowance or RATA is a fringe benefit distinct from salary. Unlike
salary which is paid for services rendered, RATA belongs to a basket
of allowances to defray expenses deemed unavoidable in the
discharge of office. Hence, it is paid only to certain officials who, by
the nature of their offices, incur representation and transportation
expenses. The Department of Budget and Management (DBM)
Manual on Position Classification and Compensation discusses the
nature of the RATA and qualifies the entitlement of reinstated
government employees thereto in certain fiscal years.
Same; Same; Same; Jurisprudence dictates that the burden of
proving payment of monetary claims rests on the employer.—
Jurisprudence dictates that the burden of proving payment of
monetary claims rests on the employer. The rationale for this rule was
explained in G & M Philippines, Inc. v. Cuambot: “x x x [O]ne who
pleads payment has the burden of proving it. The reason for the rule
is that the pertinent personnel files, payrolls, records, remittances and
other similar documents—which will show that overtime, differentials,
service incentive leave, and other claims of workers have been paid—
are not in the possession of the worker but in the custody and absolute
control of the employer. Thus, the burden of showing with legal
certainty that the obligation has been discharged with payment falls
on the debtor, in accordance with the rule that one who pleads
payment has the burden of proving it. x x x”
PETITIONS for review on certiorari of the decision and resolution of
the Court of Appeals.
The facts are stated in the opinion of the Court.
Somera, Penano & Associates for Isabelo L. Galang.577
VOL. 649, MAY 31, 2011 577

Galang vs. Land Bank of the Philippines
Land Bank Legal Services Group for Land Bank of the
Philippines.
VILLARAMA, JR., J.:
These are two consolidated petitions for review on certiorari1 filed
by Isabelo L. Galang and Land Bank of the Philippines (Land Bank) to
assail the Decision2 dated May 25, 2006 and Resolution3 dated
October 25, 2006 of the Court of Appeals (CA) in CA-G.R. SP No.
91910. The CA had reversed and set aside Resolution Nos.
0408944 and 0512565 of the Civil Service Commission (CSC) denying
Galang’s Motion for Issuance of Writ of Execution6 and motion for
reconsideration.
The facts of the case are undisputed.
On June 20, 1988, Isabelo L. Galang, the Branch Manager of Land
Bank Baliuag, Bulacan was charged with Dishonesty, Misconduct,
Conduct Prejudicial to the Best Interest of the Service, Gross Neglect
of Duty, Violation of Rules and Regulations, and Receiving for
Personal Use a Fee, Gift or Other Valuable Thing in the Course of
Official Duties or in Connection Therewith when such Fee is Given by
Any Person in the Hope or Expectation of Receiving a Favor or Better
Treatment than that Accorded Other Persons or Committing Acts
Punishable Under the Anti-Graft Laws. The case was docketed as
Administrative Case No. 88-002.7
_______________
1 Rollo (G.R. No. 175276), pp. 10-33; Rollo (G.R. No. 175282),
pp. 20-34.
2 Rollo (G.R. No. 175282), pp. 35-47. Penned by Associate
Justice Conrado M. Vasquez, Jr., with Associate Justices Mariano C.
Del Castillo (now a member of this Court) and Magdangal M. De Leon,
concurring.
3 Id., at p. 48.
4 Id., at pp. 50-54.
5 Id., at pp. 56-59.
6 Id., at pp. 139-141.
7 Id., at pp. 88-90.
578
578 SUPREME COURT REPORTS ANNOTATED
ADMELEC Cases
298
Galang vs. Land Bank of the Philippines
Allegedly, Galang demanded money from four borrowers of the
bank, namely, Ceferino Manahan, Gregorio Modelo, Sotero Santos
and Feliza de Vera, in return for a reduction of interest rates and
condonation of penalty charges on their overdue loans. The complaint
further accuses Galang of making unauthorized disbursements for the
repair of the company car. Along with Galang, the borrowers also
charged Conrado Ocampo, a Project Analyst in the same branch, for
his alleged participation in soliciting money from them.
On November 3, 1989, the Hearing Officer of Land Bank issued a
Joint Resolution dismissing both charges for insufficiency of evidence.
This was later reversed by Land Bank’s General Counsel, Corazon P.
Del Rosario, who recommended Galang and Ocampo’s dismissal to
the Board of Directors.
On April 26, 1990, the Board of Directors issued Resolution No.
90-0438 which approved Del Rosario’s recommendation but modified
the penalty to forced resignation with forfeiture of all benefits.
Aggrieved, Galang and Ocampo appealed to the Merit Systems
Protection Board (MSPB).
In a Decision9 dated March 8, 1991, the MSPB sustained the
penalty imposed upon Galang and Ocampo but found them liable only
for Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service, and Receiving for Personal Use a Fee, Gift or
Other Valuable Thing in the Course of Official Duties or in Connection
Therewith when such Fee is Given by Any Person in the Hope of
Receiving a Favor or Better Treatment than that Accorded Other
Persons. The MSPB, however, absolved Galang of the charges of
Gross Neglect of Duty and Violation of Rules and Regulations. Galang
and Ocampo filed a motion for reconsideration, which was denied in a
Decision10 dated June 11, 1991.
_______________
8 Id., at p. 97.
9 Id., at pp. 98-114.
10 CA Rollo, pp. 110-112.
579
VOL. 649, MAY 31, 2011 579
Galang vs. Land Bank of the Philippines

Before the CSC, Galang and Ocampo’s appeal was dismissed for
lack of merit through Resolution No. 93-100111 dated March 12, 1993.
Their motion for reconsideration was likewise denied in Resolution No.
93-3812.12
Galang alone filed a petition for certiorari13 with the Supreme Court
alleging grave abuse of discretion committed by the CSC. In a
Resolution14 dated June 20, 1995, the Court referred the matter to the
CA pursuant to Revised Administrative Circular No. 1-95.15
On November 21, 1996, the CA rendered a Decision16 in CA-G.R.
SP No. 37791 nullifying Resolution Nos. 93-1001 and 93-3812. The
appellate court excluded the affidavits of the complainants as
inadmissible in evidence for lack of cross-examination. Without them,
it found no substantial evidence to hold Galang administratively liable.
Subsequently, Galang filed a Motion for Clarification and/or
Reconsideration17 with a prayer for the CA to order his reinstatement
and the payment of his back wages, bonuses and other fringe benefits
reckoned from the date of his dismissal. Land Bank, likewise, moved
for reconsideration.
In a Resolution18 dated September 5, 1997, the CA granted
Galang’s motion and directed Land Bank to reinstate him and to pay
him back salaries not exceeding five years. Land Bank received notice
of said resolution on September 15, 1997, but filed no appeal.
_______________
11 Id., at pp. 113-121.
12 Rollo (G.R. No. 175282), pp. 115-116.
13 Id., at pp. 300-337.
14 CSC records, p. 468.
15 RULES GOVERNING APPEALS TO THE COURT OF APPEALS FROM
JUDGMENTS OR FINAL ORDERS OF THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES.
16 Rollo (G.R. No. 175282), pp. 338-363.
17 Id., at pp. 364-369.
18 Id., at pp. 382-384.
580
580 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
ADMELEC Cases
299
Consequently, Galang filed a Motion to Effect Entry of
Judgment.19 On November 14, 1997, Land Bank filed before this Court
a Petition for Certiorari20 which was docketed as G.R. No. 131186.
In a Resolution21 dated January 17, 2001, this Court dismissed the
petition. This Court concluded that Land Bank’s petition
for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, was merely an afterthought considering that it failed to file
a petition for review on certiorari under Rule 45 of said Rule. The bank
moved for reconsideration but was denied. Thus, on August 7, 2001,
this Court issued an Entry of Judgment.22
In the meantime, Galang was reinstated in the payroll on August
16, 2001. However, on December 14, 2001, Galang wrote Land
Bank’s President, Margarito Teves, complaining that he has yet to
receive Personnel Economic Relief Allowance (PERA),
Representation and Travel Allowance (RATA), Meal Allowance and
Rice Subsidy. He claimed that since this Court found Land Bank’s
petition for certiorari to be a mere afterthought, he should have been
reinstated on October 1, 1997—after the fifteen (15)-day period to
appeal the Resolution dated September 5, 1997 had lapsed. Galang
also insisted that his back salaries be computed based on the current
salary rate prescribed for his previous position. 23
In a letter24 dated February 8, 2002, Land Bank expressed its
willingness to pay Galang Meal Allowance and Rice Subsidy. It,
however, refused to include PERA and RATA as part of his back
salaries for 1990 to 1995; the former, because it was authorized to be
paid to LBP employees only in 1997 and
_______________
19 Id., at pp. 385-387
20 Id., at pp. 388-425.
21 Id., at pp. 426-428.
22 Id., at p. 429.
23 Id., at pp. 431-432.
24 Id., at pp. 433-434.
581
VOL. 649, MAY 31, 2011 581
Galang vs. Land Bank of the Philippines
the latter, because he was unable to discharge the functions of his
office. Land Bank further explained that Galang could not be

reinstated, or his back wages paid from October 1, 1997 since there
was yet no final and executory decision of the court then. The bank
maintained that his salaries were computed correctly, based on the
prevailing rate for the period when he was unable to work in
accordance with the Court’s ruling in Bangalisan v. Court of Appeals.25
On June 7, 2002, Galang filed a Motion for Clarification 26 with this
Court to settle the following issues:
9.1 Whether Respondent is entitled to Meal and Rice
Allowances, Representation and Travel Allowance and
Housing Allowance, and the basis thereof;
9.2 Whether the payment of Provident Fund is limited to five (5)
years only;
9.3 The basis for computing the 5-year backwages;
9.4 Whether Respondent should have been reinstated since
October 1, 1997.27
On July 24, 2002, this Court issued a Resolution28 which noted
without action Galang’s motion for clarification in view of the Entry of
Judgment29 on August 7, 2001.
On May 15, 2003, Galang filed a Motion for Issuance of Writ of
Execution30 with the CSC to enforce the November 21, 1996 Decision
of the CA in CA-G.R. SP No. 37791, which ordered his reinstatement
and the payment of his backwages for five years.
_______________
25 G.R. No. 124678, July 31, 1997, 276 SCRA 619.
26 Rollo (G.R. No. 175282), pp. 435-445.
27 Id., at p. 439.
28 Id., at p. 446.
29 Supra note 22.
30 Id., at pp. 447-450.
582
582 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
The Commission denied said motion in Resolution No. 040894
dated August 9, 2004. Galang moved for reconsideration, but his
motion was denied in Resolution No. 05-1256 dated September 13,
2005. The CSC held that execution will not lie because Land Bank had
complied with the appellate court’s decision.
ADMELEC Cases
300
On November 5, 2005, Galang filed a Petition for Review31
under Rule 43 with the CA.
In the assailed Decision dated May 25, 2006, the appellate court
granted said petition and declared Galang entitled to PERA, RATA
and other benefits attached to his position. However, it upheld his
reinstatement on August 16, 2001 and sustained the computation of
his back wages based on the prevailing rate at the time of his
dismissal. The motions for reconsideration respectively filed by
Galang and Land Bank were likewise denied by the appellate court in
its Resolution dated October 25, 2006.
Hence, on December 8, 2006, Galang filed a petition for review
on certiorari with this Court raising the following issues:
I.
THE HONORABLE COURT ERRED IN NOT RULING THAT THE
COMPUTATION OF PETITIONER’S BACKWAGES SHOULD BE
BASED ON HIS CURRENT SALARY LEVEL; AND
II.
THE HONORABLE COURT ERRED IN NOT RULING THAT
PETITIONER IS ENTITLED TO REINSTATEMENT AS EARLY AS 01
OCTOBER 1997.32
For its part, Land Bank filed a petition for review on certiorari on
December 22, 2006 based on the following assignment of errors:
_______________
31 Id., at pp. 465-491.
32 Rollo (G.R. No. 175276), p. 21.
583
VOL. 649, MAY 31, 2011 583
Galang vs. Land Bank of the Philippines
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS
COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT
RULED THAT [PERSONNEL] ECONOMIC RELIEF ALLOWANCE
(PERA) AND REPRESENTATION AND [TRANSPORTATION]
ALLOWANCE (RATA) SHOULD BE INCLUDED IN THE PAYMENT
OF RESPONDENT’S BACKWAGES.
II.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS
LIKEWISE COMMITTED GRAVE AND REVERSIBLE ERROR WHEN
IT HELD THAT RESPONDENT GALANG IS STILL ENTITLED TO
THE PAYMENT OF MEAL ALLOWANCE AND RICE SUBSIDY. 33
In order to resolve these twin petitions, the Court must address the
following questions: (1) When should Galang be reinstated? (2) What
should be the basis of computing his back salaries? and (3) Is he
entitled to PERA, RATA, Meal Allowance and Rice Subsidy?
Citing the case of Cristobal v. Melchor,34 Galang contends that his
back wages should be computed based on the rate of his salary at
reinstatement. He argues that since Land Bank availed of the wrong
remedy, his reinstatement should be reckoned from October 1, 1997
or after the reglementary period to appeal had lapsed.
Land Bank, on the other hand, disputes Galang’s demand for
PERA and RATA. It reasons that since the five-year period for which
Galang shall receive back salaries is from July 1990 to June 1995, he
is not entitled to PERA, a benefit which employees of the Land Bank
started receiving only in 1997. As to RATA, Land Bank maintains that
the nature of such benefit precludes Galang from claiming it since he
did not incur expenses for representation and transportation while he
was not
_______________
33 Rollo (G.R. No. 175282), pp. 24-25.
34 No. L-43203, December 29, 1980, 101 SCRA 857.
584
584 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
allowed to work. Finally, it claims that it had already paid Galang’s Rice
Subsidy and Meal Allowance.
We find the petition partly meritorious.
The Omnibus Rules Implementing Book V of Executive Order No.
29235 and Other Pertinent Civil Service Laws define reinstatement as
the issuance of an appointment to a person who has been previously
appointed to a position in the career service and who has, through no
delinquency or misconduct, been separated therefrom, or to the
restoration of one who has been exonerated of the administrative
charges filed against him.
ADMELEC Cases
301
In the present case, Galang was absolved of the administrative
charges against him in the CA Decision dated November 21, 1996.
Upon motion, the appellate court issued the Resolution dated
September 5, 1997, which ordered his reinstatement and the payment
of his back salaries for five years.
It is settled that an illegally terminated civil service employee is
entitled to back salaries limited only to a maximum period of five years,
and not full back salaries from his illegal termination up to his
reinstatement.36 Hence, in Galang’s case, he is entitled to back
salaries from July 1990 to June 1995. This is not disputed by the
parties. Rather, the uncertainty centers on when he should be
reinstated.
The records show that Galang was reinstated in Land Banks’s
payroll on August 16, 2001. He argues, however, that he should be
reinstated on October 1, 1997, after the fifteen (15)-day period to
appeal the Resolution dated September 5, 1997 had lapsed.
Galang’s position on the effective date of his reinstatement is
correct.
_______________
35 INSTITUTING THE “ADMINISTRATIVE CODE OF 1987.”
36 Yenko v. Gungon, G.R. Nos. 165450 & 165452, August 13,
2009, 595 SCRA 562, 580.
585
VOL. 649, MAY 31, 2011 585
Galang vs. Land Bank of the Philippines
Well-entrenched is that a judgment or order becomes final upon
the lapse of the period to appeal, without an appeal being perfected
or a motion for reconsideration being filed.37
In this case, Land Bank received notice of the CA Resolution dated
September 5, 1997 on September 15, 1997. Thus, it had fifteen (15)
days from September 15, 1997, or until September 30, 1997 to file an
appeal. Yet, Land Bank did not do so. Instead, it filed a petition
for certiorari with this Court on November 14, 1997.
However, an original action for certiorari is an independent action
and is neither a continuation nor a part of the trial resulting in the
judgment complained of. It does not interrupt the course of the original
action if there was no writ of injunction, even if in connection with a

pending case in a lower court.38 Section 7, Rule
65 on certiorari provides:
“SEC. 7. Expediting proceedings; injunctive relief.—The court in
which the petition is filed may issue orders expediting the proceedings,
and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties
pending such proceedings. The petition shall not interrupt the
course of the principal case unless a temporary restraining order
or a writ of preliminary injunction has been issued against public
respondent from further proceeding in the case.” (Emphasis
supplied.)
Clearly, the petition for certiorari filed by Land Bank in G.R. No.
131186 did not suspend the running of the prescriptive period to
appeal. Besides, no temporary restraining order or writ of preliminary
injunction was issued in its favor that could effectively toll the running
of the prescriptive period.
It is true that there are instances where, even if there is no writ of
preliminary injunction or temporary restraining order
_______________
37 Philippine Veterans Bank v. Solid Homes, Inc., G.R. No.
170126, June 9, 2009, 589 SCRA 40, 46.
38 Id., at pp. 49-50.
586
586 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
issued by a higher court, it would be proper for a lower court or court
of origin to suspend its proceedings on the precept of judicial courtesy.
The principle of judicial courtesy, however, remains to be the
exception rather than the rule.39 Unfortunately for Land Bank, this is
not a proper case for the operation of the said principle.
Land Bank’s failure to interpose an appeal within fifteen (15) days
from its receipt on September 15, 1997 of the Resolution dated
September 5, 1997, rendered the same final and executory on
October 1, 1997. Galang’s reinstatement therefore must be reckoned,
not from August 16, 2001 but from October 1, 1997. This entitles him
to receive back wages as well from the date when he should have
ADMELEC Cases
302
been reinstated on October 1, 1997 to August 15, 2001, one day
before he was actually reinstated.
Concomitant with reinstatement is the payment of back salaries.
Section 59(e) of the Uniform Rules on Administrative Cases in the Civil
Service on the effect of exoneration on certain penalties provides that
in case the penalty imposed is dismissal, he shall immediately be
reinstated without loss of seniority rights with payment of back
salaries. It was enunciated in Philippine Amusement and Gaming
Corporation v. Salas40 that:
“When an official or employee was illegally dismissed and his
reinstatement has later been ordered, for all legal purposes he is
considered as not having left his office. Therefore, he is entitled to all
the rights and privileges that accrue to him by virtue of the office he
held.”
In this case, the second issue for resolution pertains to the base
figure to be used in computing Galang’s back salaries.
_______________
39 De Leon v. Public Estates Authority, G.R. Nos. 181970 &
182678, August 3, 2010, 626 SCRA 547, 562.
40 G.R. No. 138756, August 1, 2002, 386 SCRA 94, 100,
citing Tañala v. Legaspi, No. L-22537, March 31, 1965, 13 SCRA 566,
576.
587
VOL. 649, MAY 31, 2011 587
Galang vs. Land Bank of the Philippines
Galang invokes the 1980 case of Cristobal v. Melchor41 as
authority in saying that the computation of his back wages should be
based on his salary at reinstatement. However, we find Galang’s
reliance on said case misplaced.
In Cristobal v. Melchor, Jose C. Cristobal was reinstated as an
Assistant in the Office of the President, a position different from his
position as Private Secretary I which he held when he was terminated.
Upon being reinstated, he was paid the salary corresponding to that
of a Private Secretary I at the rate when he was wrongfully dismissed
fifteen (15) years back. The Court ruled therein that Cristobal must be
given a position and compensation commensurate and comparable to
that which he held, taking into account the increases in salary during

the fifteen (15)-year period preceding his reinstatement. To stress this
point, the Court fixed his compensation at the rate prevailing at the
time of his reinstatement inclusive of allowances, benefits and
increases in salary. Moreover, it ordered the respondents therein to
pay Cristobal the differential between the current rate of the salary, for
a position commensurate to a Private Secretary I, and the old rate from
the time he “reported for duty”42 that is, from the time he was
reinstated.
Clearly, what was in issue in Cristobal v. Melchor was the rate of
Cristobal’s compensation upon his reinstatement, not the rate of his
back salaries. In fact, he did not dispute the payment of his back
salaries for five years computed at the rate when he was dismissed. 43
The controlling rule on the rate at which back salaries shall be paid
was laid down by the Court as early as 1977 in the case of Balquidra
v. CFI of Capiz, Branch II.44 In said case, the Court awarded back
salaries to the petitioner therein at
_______________
41 Supra note 34.
42 Id., at p. 866.
43 Id., at p. 862.
44 No. L-40490, October 28, 1977, 80 SCRA 123.
588
588 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
the rate last received by him or his “original salary”45 for five years
without qualification and deduction. This means that the illegally
dismissed government employee shall be paid back salaries at the
rate he was receiving when he was terminated unqualified by salary
increases and without deduction from earnings received elsewhere
during the period of his illegal dismissal. We have invariably held so
in Gementiza v. Court of Appeals,46 Ginson v. Municipality of Murcia,
et al.,47 Gabriel v. Domingo,48 and Del Castillo v. Civil Service
Commission.49 We find no reason to depart from the said rule in the
instant case.
Be that as it may, we cannot apply the foregoing rule in the
computation of Galang’s back salaries from October 1, 1997 to August
15, 2001. His back salaries for such period represent recompense for
the earnings he failed to realize because he was belatedly reinstated.
ADMELEC Cases
303
Following this Court’s pronouncement in Cristobal v. Melchor,
Galang’s back salaries for October 1, 1997 to August 15, 2001 should
be computed at the rate prevailing at the proper date of his
reinstatement on October 1, 1997, inclusive of allowances, benefits
and increases in salary prior to reinstatement.
Apart from back salaries, Galang demands payment of RATA,
PERA, Meal Allowance and Rice Subsidy from Land Bank.
Back wages represent the compensation that should have been
earned but were not collected because of the unjust dismissal. 50 This
includes other monetary benefits51 attached to
_______________
45 Id., at p. 136.
46 Nos. L-41717-33, April 12, 1982, 113 SCRA 477, 489.
47 No. L-46585, February 8, 1988, 158 SCRA 1, 8.
48 G.R. No. 87420, September 17, 1990, 189 SCRA 672, 679.
49 G.R. No. 112513, August 21, 1997, 278 SCRA 209, 215.
50 Malig-on v. Equitable General Services, Inc., G.R. No. 185269,
June 29, 2010, 622 SCRA 326, 332.
51 Civil Service Commission v. Magnaye, Jr., G.R. No. 183337,
April 23, 2010, 619 SCRA 347, 363.
589
VOL. 649, MAY 31, 2011 589
Galang vs. Land Bank of the Philippines
the employee’s salary following the principle that an illegally dismissed
government employee who is later reinstated is entitled to all the rights
and privileges that accrue to him by virtue of the office he held.
Pertinent to this case, Republic Act (R.A.) No. 6758, 52 otherwise
known as the Compensation and Position Classification Act of 1989,
was enacted on July 1, 1989 to integrate certain benefits received by
government official and employees into their salaries. Section 12 of
said Act provides:
“SEC. 12. Consolidation of Allowances and Compensation.—All
allowances, except for representation and transportation
allowances; clothing and laundry allowances; subsistence allowance
of marine officers and crew on board government vessels and hospital
personnel; hazard pay; allowances of foreign service personnel
stationed abroad; and such other additional compensation not
otherwise specified herein as may be determined by the DBM, shall

be deemed included in the standardized salary rates herein
prescribed. Such other additional compensation, whether in cash or in
kind, being received by the incumbents only as of July 1, 1989 not
integrated into the standardized salary rates shall continue to be
authorized.”
Existing additional compensation of any national government
official or employee paid from local funds of a local government unit
shall be absorbed into the basic salary of said official or employee and
shall be paid by the National Government.
Section 17 of the Act, however, exempts incumbent government
officials and employees from the operation of Section 12, thus:
“SEC. 17. Salaries of Incumbents.—Incumbents of positions
presently receiving salaries and additional compensation/fringe
_______________
52 AN ACT PRESCRIBING A REVISED COMPENSATION AND POSITION
CLASSIFICATION SYSTEM IN THE GOVERNMENT AND FOR OTHER
PURPOSES.
590
590 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
benefits including those absorbed from local government units and
other emoluments, the aggregate of which exceeds the standardized
salary rate as herein prescribed, shall continue to receive such excess
compensation, which shall be referred to as transition allowance. The
transition allowance shall be reduced by the amount of salary
adjustment that the incumbent shall receive in the future.
The transition allowance referred to herein shall be treated as part
of the basic salary for purposes of computing retirement pay, year-end
bonus and other similar benefits.
xxxx
Being an incumbent at the time, Galang would have continued to
receive RATA, Meal Allowance and Rice Subsidy, separate from his
salary, had he not been illegally dismissed from service.”
Representation and Transportation Allowance or RATA is a fringe
benefit distinct from salary. Unlike salary which is paid for services
rendered, RATA belongs to a basket of allowances to defray expenses
ADMELEC Cases
304
deemed unavoidable in the discharge of office. Hence, it is paid only
to certain officials who, by the nature of their offices, incur
representation and transportation expenses.53The Department of
Budget and Management (DBM) Manual on Position Classification
and Compensation discusses the nature of the RATA and qualifies the
entitlement of reinstated government employees thereto in certain
fiscal years:
“The pertinent general provisions of the General Appropriations
Acts (GAAs) prior to FY 1993 and in the FY 1999 GAA provided that
the officials listed therein and those of equivalent ranks as may be
determined by the Department of Budget and Management (DBM) are
to be granted monthly commutable RATA. Hence, prior to FY 1993
and in FY 1999, RATA were allowances attached to the position.”
_______________
53 Department of Budget and Management v. Leones, G.R. No.
169726, March 18, 2010, 616 SCRA 72, 79.
591
VOL. 649, MAY 31, 2011 591
Galang vs. Land Bank of the Philippines
The pertinent provisions of the FYs 1993 to 1998 GAAs and in the
FY 2000 GAA provided that the officials listed therein and those of
equivalent ranks as may be determined by the DBM while in the
actual performance of their respective functions are to be granted
monthly commutable RATA. This provision was reiterated in the
pertinent general provisions of the subsequent GAAs. Hence, in FYs
1993 to 1998 and beginning FY 2000 and up to the present, the
actual performance of an official’s duties and responsibilities
was a pre-requisite to the grant of RATA.
The rationale behind the qualifying phrase, “while in the actual
performance of their respective functions,” is to provide the official
concerned with additional funds to meet necessary expenses
incidental to and connected with the exercise or the discharge of the
functions of the office. Thus, if the official is out of office, whether
voluntary or involuntary, the official does not and is not supposed to
incur expenses. There being no expenses incurred, there is nothing to
reimburse.

Since RATA are privileges or benefits in the form of reimbursement
of expenses, they are not salaries or part of basic salaries. Forfeiture
or non-grant of the RATA does not constitute diminution in
pay. RATA may be spent in variable amounts per work day depending
on the situation. Entitlement thereto should not be proportionate to the
number of work days in a month, inclusive of regular and special
holidays falling on work days. (Emphasis supplied.)
For emphasis, the five-year period covered in the computation of
Galang’s back salaries and other benefits is from July 1990 to June
1995. Also, he shall receive back salaries and other benefits for the
period during which he should have been reinstated from October 1,
1997 to August 15, 2001. Since the General Appropriations Act (GAA)
for 1993 to 1998 and in the year 2000 onwards require the actual
performance of duty as a condition for the grant of RATA, Galang shall
not receive RATA in those years but shall be entitled to RATA only
from July 1990 to December 1992 and in the year 1999.592
592 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
On the other hand, Personnel Economic Relief Allowance (PERA)
is a P500 monthly allowance authorized under the pertinent general
provision in the annual GAA. It is granted to augment the pay of
government employees due to the rising cost of living.
On February 12, 1997, Congress enacted R.A. No. 8250 54 (GAA
for CY 1997), which granted PERA to all government employees and
officials as a replacement of the Cost of Living Allowance
(COLA).55 This explains why Land Bank employees began receiving
PERA only in 1997—because prior to 1997, said benefit was called by
another name, COLA. Hence, Land Bank is still liable to pay the
monthly PERA to Galang.
In his Motion for Issuance of Writ of Execution, Galang
acknowledges receipt of “Rice Allowance, which was monetized
based on the value of a sack of rice within the period from July 1990
to June 1995.”56 Still, he claims Rice Subsidy for the succeeding
years. Considering, however, that Galang is entitled to back wages
only from July 1990 to June 1995 and from October 1, 1997 to August
15, 2001, his claim for Rice Subsidy for the intervening years has no
legal basis.
As to Meal Allowance, Land Bank concedes Galang’s entitlement
thereto, albeit, it claims that it had already paid the same.
ADMELEC Cases
305
Jurisprudence dictates that the burden of proving payment of
monetary claims rests on the employer. The rationale for
_______________
54 AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES FROM JANUARY ONE
TO DECEMBER THIRTY[-]ONE, NINETEEN HUNDRED NINETY[-]SEVEN, AND
FOR OTHER PURPOSES.
55 Re: Request of Chief Justice Andres R. Narvasa (Ret.) for Re-
computation of His Creditable Government Service, A.M. No. 07-6-10-
SC, July 23, 2008, 559 SCRA 296, 302.
56 Supra note 6, at p. 140.
593
VOL. 649, MAY 31, 2011 593
Galang vs. Land Bank of the Philippines
this rule was explained in G & M Philippines, Inc. v. Cuambot:57
“x x x [O]ne who pleads payment has the burden of proving it. The
reason for the rule is that the pertinent personnel files, payrolls,
records, remittances and other similar documents—which will show
that overtime, differentials, service incentive leave, and other claims
of workers have been paid—are not in the possession of the worker
but in the custody and absolute control of the employer. Thus, the
burden of showing with legal certainty that the obligation has been
discharged with payment falls on the debtor, in accordance with the
rule that one who pleads payment has the burden of proving it. x x x” 58
To prove payment of Galang’s meal allowance for 1988 and July
1990 to 1995 in the amount of P34,860.00, Land Bank annexed
Disbursement Order No. 02-02-017059 dated February 8, 2002 to its
Comment60 in CA-G.R. SP No. 91910. However, said disbursement
order lacks the signature of Galang as recipient. Verily, we cannot take
such document as conclusive proof that Galang has been paid his
meal allowance. Taking into account our determination that Galang
ought to be reinstated earlier, Land Bank shall likewise be liable to pay
his Meal Allowance from October 1, 1997 to August 15, 2001.
WHEREFORE, the Decision dated May 25, 2006 and Resolution
dated October 25, 2006 of the Court of Appeals in CA-G.R. SP No.
91910 are AFFIRMED WITH MODIFICATIONS. Land Bank of the
Philippines is ordered to pay Isabelo L. Galang: (a) back salaries for

five (5) years from the time of his unlawful dismissal in July 1990 to
June 1995 at the rate last received by him without qualification and
deduction; (b) back salaries from the proper date of his reinstatement
on October
_______________
57 G.R. No. 162308, November 22, 2006, 507 SCRA 552, 570.
58 Dansart Security Force & Allied Services Company v. Bagoy,
G.R. No. 168495, July 2, 2010, 622 SCRA 694, 699-700.
59 CA Rollo, p. 312.
60 Id., at pp. 296-309.
594
594 SUPREME COURT REPORTS ANNOTATED
Galang vs. Land Bank of the Philippines
1, 1997 until August 15, 2001, at the rate prevailing on October 1, 1997
inclusive of increases in salary; (c) Cost of Living Allowance (COLA)
from July 1990 to June 1995; (d) Personnel Economic Relief
Allowance (PERA) from October 1, 1997 to August 15, 2001; (e)
Representation and Transportation Allowance (RATA) from July 1990
to December 1992 and for the year 1999; (f) Meal Allowance in the
amount of P34,860.00; and (g) Meal Allowance and Rice Subsidy for
October 1, 1997 to August 15, 2001.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 138238. September 2, 2003.*
EDUARDO BALITAOSAN, petitioner, vs. THE SECRETARY OF
EDUCATION, CULTURE AND SPORTS, respondent.
Remedial Law; Appeals; Issues raised for the first time on
appeal cannot be considered because a party is not permitted to
ADMELEC Cases
306
change his theory on appeal.—Issues raised for the first time on
appeal cannot be considered because a party is not permitted to
change his theory on appeal. To allow him to do so is unfair to the
other party and offensive to the rules of fair play, justice and due
process.
Administrative Law; Petitioner’s reinstatement was not the result
of exoneration but an act of liberality by the Court of Appeals; His claim
for backwages for the period during which he was not allowed to work
must be denied.—The fact is that petitioner participated in the mass
action which in turn resulted in the filing of charges against him and
his subsequent dismissal later on. His reinstatement was not the result
of exoneration but an act of liberality by the Court of Appeals.
Same; The general rule is that a public official is not entitled to
any compensation if he has not rendered any service.—The general
rule is that a public official is not entitled to any compensation if he has
not rendered any service. No work, no pay. Since petitioner did not
render any service during the period for which he is now claiming his
salaries, there is no legal or equitable basis to order the payment
thereof.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Froilan M. Bacungan & Associates for petitioner.
The Solicitor General for respondent.
CORONA, J.:
Before us is a petition for review of the April 15, 1999 resolution 1 of
the Court of Appeals denying petitioner’s motion for partial
_______________
*THIRD DIVISION.
1Penned by Associate Justice Martin S. Villarama, Jr. and
concurred in by Associate Justices Angelina Sandoval-Gutierrez (now
Supreme Court Associate Justice) and Romeo A. Brawner of the
former Twelfth Division.
234

234 SUPREME COURT REPORTS
ANNOTATED
Balitaosan vs. Secretary of Education, Culture and
Sports
reconsideration of its decision dated November 9, 1998 which ordered
petitioner’s reinstatement, without backwages.
Petitioner was among the public school teachers who were
dismissed by then DECS Secretary Isidro Cariño for ignoring the
return to work order while participating in the teacher’s mass strike at
Liwasang Bonifacio from September to October, 1990.
Records reveal that an administrative complaint was filed against
petitioner, together with a certain Dalangin Sarmiento and Filomeno
Rafer, charging them with grave misconduct, gross neglect of duty,
gross violation of the Civil Service Law and Rules of Reasonable
Office Regulations, refusal to perform official duty, gross
insubordination, conduct prejudicial to the best interests of the service
and absence without leave.
Petitioner failed to give his explanation on the charges against him
despite due notice. Thus, he was meted preventive suspension for 90
days and consequently dismissed from the service in a DECS decision
dated November 29, 1990.
Petitioner appealed said decision to the Merit System Protection
Board but his appeal was dismissed for being filed out of time.
Aggrieved, petitioner appealed to the Civil Service Commission but
the appeal and the subsequent motion for reconsideration were both
denied in the resolutions dated September 8, 1994 and April 14, 1998,
respectively.
Petitioner then sought recourse from the Court of Appeals via a
petition for certiorari which yielded positive results, obtaining for
petitioner an order of reinstatement without, however, any award of
backwages in his favor. Thus:
“WHEREFORE, the petition is hereby given DUE COURSE.
Resolution Nos. 94-4979 and 980819 of the Civil Service Commission
are SET ASIDE. Accordingly, the Department of Education, Culture
and Sports’ Decision in Case No. DECS 90-118 is MODIFIED—
instead the petitioner is only guilty of Conduct Prejudicial to the Best
Interest of the Service for which he is meted out the penalty of
suspension from the service for a period of six (6) months without pay
considering that the petitioner has been out of the service for more
ADMELEC Cases
307
than seven (7) years now as a result of his dismissal from the service,
the Department of Education, Culture and Sports is hereby
ORDERED to immediately reinstate petitioner Eduardo Balitaosan.
235
VOL. 410, SEPTEMBER 2, 2003 235
Balitaosan vs. Secretary of Education, Culture and
Sports
SO ORDERED.” 2
Not wholly satisfied with said decision, petitioner moved for its partial
reconsideration, praying for an award of backwages, but the same
was denied in the above assailed resolution dated April 15, 1999.
Thus, the instant petition.
Petitioner alleges that the Court of Appeals committed reversible
error when it refused to apply the ruling in the case of Fabella, et al.
vs. Court of Appeals, et al.3 In the said case, the Court, finding the
investigation committee to be without competent jurisdiction, declared
that all proceedings undertaken were necessarily void and thus could
not provide the legal basis for the suspension or dismissal of the
petitioners. The Court declared a denial of due process because the
inclusion of a representative of a teacher’s organization in the
investigating committee, which was indispensable to ensure an
impartial tribunal, was not complied with. Consequently, it ordered the
payment of back salaries, allowances, bonuses and other benefits and
emoluments which had accrued to the teachers involved during the
entire period of their preventive suspension and/or dismissal from the
service.
Petitioner’s reliance on Fabella is totally misplaced.
As aptly observed by the Court of Appeals, in Fabella, the
jurisdiction and composition of the investigation committee was put in
issue from the very start. When the Court found the investigation
committee to be without competent jurisdiction, it declared all the
proceedings undertaken by said committee void; therefore, it could not
have provided the legal basis for the suspension and dismissal of
private respondents therein.
In the case at bar, however, aside from the catch-all and sweeping
allegation of “denial of due process,” petitioner never questioned the
competence and composition of the investigating committee. He
belatedly raised this issue for the first time in the petition for review

before the Court of Appeals. Thus, the appellate court acted correctly
in rejecting petitioner’s argument.
Issues raised for the first time on appeal cannot be considered
because a party is not permitted to change his theory on appeal. To
_______________
2 Rollo, pp. 37-38.
3 282 SCRA 256 (1997).
236
236 SUPREME COURT REPORTS
ANNOTATED
Balitaosan vs. Secretary of Education, Culture and
Sports
allow him to do so is unfair to the other party and offensive to the rules
of fair play, justice and due process.4
In its Decision, the Court of Appeals justified petitioner’s
reinstatement:
While We view with approbation the authority of the Department of
Education, Culture and Sports to punish the public school teachers for
engaging in the prohibited action, that is, staging and joining the strike,
We, particularly, take note here the seemingly compartmentalized
treatment the petitioner suffered from the respondent Civil Service
Commission. As petitioner’s appeal to the Merit Systems Protection
Board of the Civil Service Commission was rebuffed for having been
filed out of time and eventually dismissed petitioner, that of Filomeno
Rafer’s, after filing a third motion for reconsideration from the
resolution of the respondent commission dismissing him from the
service, decided Rafer’s case on the merits and reduced his penalty
from dismissal from the service to suspension for six (6) months
(Rollo, p. 29). We are bewildered actually, as Our assessment is that
the petitioner and Rafer are similarly situated, why the respondent
Commission failed to give the same cordiality given to Rafer. Not only
that, in several cases involving public school teachers, the respondent
Commission modified the penalty of dismissal from the service to a
mere reprimand (Alipat vs. Civil Service Commission, CA-G.R. SP No.
38312).5
The fact is that petitioner participated in the mass action which in turn
resulted in the filing of charges against him and his subsequent
ADMELEC Cases
308
dismissal later on. His reinstatement was not the result of exoneration
but an act of liberality by the Court of Appeals. Accordingly, petitioner’s
claim for backwages for the period during which he was not allowed
to work must be denied.
The general rule is that a public official is not entitled to any
compensation if he has not rendered any service. No work, no pay.
Since petitioner did not render any service during the period for which
he is now claiming his salaries, there is no legal or equitable basis to
order the payment thereof.6
WHEREFORE, the petition is hereby DENIED. The Resolution of
the Court of Appeals dated April 15, 1999 denying petitioner’s claim
for backwages is AFFIRMED.
A.M. No. 92-5-009-CTA. December 21, 1992.*
RE: REQUEST OF FORMER PRESIDING JUDGE ALEX Z. REYES
OF THE COURT OF TAX APPEALS FOR THE INCLUSION OF HIS
LEAVE CREDITS FROM THE OFFICE OF THE ARMED FORCES
AND THE EXCLUSION OF SATURDAYS, SUNDAYS AND
HOLIDAYS IN THE COMPUTATION OF HIS TERMINAL LEAVE AS
PRESIDING JUDGE OF THE COURT OF TAX APPEALS FOR
PURPOSES OF RETIREMENT.
Retirement Laws; Public Officers; Under Circular No. 54,
government officers and employees are now entitled to the
commutation of all leave credits exclusive of Saturdays, Sundays and
holidays without limitation and regardless of the period when the
credits were earned.—Froma consideration of the foregoing, it is
evident that said Memorandum Circular No. 54 supersedes the 1957
indorsement of the
________________
*EN BANC.
729
VOL.216, DECEMBER 21, 1992 729
Re: Judge Alex Z. Reyes
Bureau of Civil Service. Under said Circular, government officers
and employees are now entitled to the commutation of all leave credits
exclusive of Saturdays, Sundays, and holidays without limitation and

regardless of the period when the credits were earned, provided the
claimant was in the service as of January 9, 1986.
Same; Same; Same; The phrase “without limitation and
regardless of the period when the credits were earned” may be
applicable to the judiciary provided it is not otherwise covered by
special law.—The issue which then arises is whether or not the phrase
“without limitation and regardless of the period when the credits were
earned” is applicable to the judiciary. Such phrase may be so
applicable on the condition provided in the circular itself, that the
judiciary is “not otherwise covered by special law.”
Same; Same; Same; The 1987 Administrative Code does not
provide for leaves of judges nor does it expressly repeal section 271
of the old Administrative Code.—Asto judges of courts of first instance,
the law governing their leave credits was initially section 271 of the
Administrative Code relative to vacation leave. This law was amended
by R.A. No. 1399 dated September 9, 1955, which in turn was
amended by R.A. No. 1802 dated June 22, 1957. R.A. No. 1802 was
subsequently amended by R.A. No. 4307 dated June 19, 1965. R.A.
No. 4307 was superseded by the Revised Administrative Code (P.D.
No. 1587) which, however, was never published, and was
subsequently expressly repealed by the 1987 Administrative Code.
The 1987 Administrative Code does not provide for leaves of judges
nor does it expressly repeal section 271 of the old Administrative
Code. R.A. No. 4307, then is still valid law.
Same; Same; Same; Same; R.A. No. 4307 pertains to vacation
leaves earned due to vacation duty and it does not govern the
commutation of leave credits earned.—There is nothing in the above
law which governs the specific issue before this Court. R.A. No. 4307
pertains to vacation leaves earned due to vacation duty and it does
not govern the commutation of leave credits earned. Said R.A. cannot
be considered the special law contemplated by Memorandum Circular
No. 54, which would effectively exclude the judiciary from the
operation of Memorandum Circular No. 54.
Same; Same; Same; Same; Leave credits of the judiciary are
covered by special laws.—In Section 11 of the Omnibus Rules it is
categorically stated that leave credits of the judiciary are covered by
special laws.
730
730 SUPREME COURT REPORTS
ANNOTATED
ADMELEC Cases
309
Re: Judge Alex Z. Reyes
Same; Same; Same; Same; Same; There is no special law
governing the commutation of leave credits of Judges and therefore
they are entitled to benefits under Memorandum Circular No. 54.—
Again, there is no special law governing the specific issue addressed
by Memorandum Circular No. 54 and Section 26 of the Omnibus
Rules. And absent any implementing rules and regulations yet
promulgated, the general provision must be applied there being no
reason to discriminate against the judiciary and deprive judges of the
benefits of commutation without limitation and regardless of the period
when the credits were earned. In other words, there is no special law
governing the commutation of leave credits of Judges and, therefore,
they are entitled to benefits under Memorandum Circular No. 54.
Same; Same; Same; Same; Rules governing commutation of
leave benefits of judges must be interpreted in the light of the special
protections given by the Constitution to the judiciary.—Statutes and
administrative rules governing the commutation of leave benefits of
judges must be interpreted in the light of the special protections given
by the Constitution to the judiciary.
Same; Same; Same; Same; Same; Memorandum Circular No.
54 of the Office of the President shall apply in computing the creditable
vacation and sick leave benefits of the members of the Judiciary who
retired or shall retire on or after March 24, 1988.—In Re: Request of
Atty. Bernardo Zialcita(190 SCRA 851 [1990]), this Court likewise set
a cut-off date for invoking the benefits of that ruling, noting the mischief
that an open-ended rule would bring. Upon the same considerations,
this Court now holds that Memorandum Circular No. 54 of the Office
of the President shall apply in computing the creditable vacation and
sick leave benefits of the members of the Judiciary who retired or shall
retire on or after March 24, 1988, the date of said Memorandum
Circular.
RESOLUTION
GUTIERREZ, JR., J.:
In his letter-request dated December 19, 1991, former Presiding Court
of Tax Appeals Judge Alex Z. Reyes asks for a reconsideration and
recomputation of his accumulated vacation and sick leave credits. In
particular, Judge Reyes requests the following:
731

VOL. 216, DECEMBER 21, 1992 731
Re: Judge Alex Z. Reyes
1. 1.The inclusion of 57.625 days vacation leave and 57.625
days sick leave which he earned for services with the Armed
Forces of the Philippines from 1941 to 1946, and
2. 2.The exclusion of Saturdays, Sundays, and holidays from his
total accredited vacation and sick leaves of 322 days for the
period beginning February 17, 1954 to July 19, 1980, during
which he was with the Department of Finance.
Judge Reyes was compulsorily retired on November 24,1991, with 37
years, 9 months and 7 days in the government service, the last 11
years, 3 months and 23 days of which were continuously rendered in
the judiciary. His record shows a gap in his government service of
seven years, from December 1946 to February 16, 1954.
In processing the terminal leave application of Judge Reyes, the
Supreme Court Administrative Office did not include Judge Reyes’
accumulated leave credits earned for services with the AFP, by virtue
of the application of a 1st Indorsement dated May 2, 1957 of the then
Bureau of Civil Service, which provides:
“When transfer of leave credit not allowed—Thetransfer of leave credit
is allowed only when there is no gap in the service of the officer or
employee concerned.”
In his request for reconsideration, Judge Reyes cites Memorandum
Circular No. 54 of the Office of the President dated March 24, 1988,
as restated in Civil Service Commission Circular No. 10, Series of
1988 which provides:
“PRESCRIBING GUIDELINES ON THE COMPUTATION OF
CREDITABLE VACATION AND SICK LEAVES
WHEREAS, Executive Order (EO) No. 1077, dated January 9, 1986,
provides under Section 1 thereof that any officer or employee of the
government who retires or voluntarily resigns or is separated from the
service through no fault of his own and whose leave benefits are not
covered by any special law, shall be entitled to the commutation of all
the accumulated vacation and/or sick leave to his credit, exclusive of
ADMELEC Cases
310
Saturdays, Sundays and holidays without limitation as to the number
of days of vacation and sick leave that he may have accumulated.
WHEREAS, Civil Service Commission (CSC) Memorandum Cir-
732
732 SUPREME COURT REPORTS ANNOTATED
Re: Judge Alex Z. Reyes
cular (MC) No. 4, series of 1986, prescribing guidelines on the
implementation of EO No. 1077, provides that the ‘reckoning date for
crediting accumulated leave in excess of 300 days shall start on
October 12,1981 [and that] leave credits in excess of 300 days before
this date shall be deemed forfeited; and
WHEREAS, On February 28, 1988, the CSC recommended the
issuance by this Office of a memorandum circular specifying the
coverage and applicability of EO No. 1077, particularly the reckoning
date for crediting accumulated leave in excess of three hundred (300)
days, and interposed no objection if the reckoning date of October 12,
1981, as stated in CSC MO No. 4, is modified or deleted.
Accordingly, and for the guidance of all concerned, the
computation of leave credits shall be as follows:
Any officer/employee of the government who retires/voluntarily
resigns/is separated from the service through no fault of his/her own,
and who is not otherwise covered by special law, shall be entitled to
the commutation of all his/her leave credits exclusive of
Saturdays/Sundays/holidays without limitation and regardless of the
period when the credits were earned; provided that the leave
privileges under EO No. 1077 as herein outlined may be availed of
only by concerned officers/ employees in the service as of the
effectivity thereof on January 9, 1986.
Strict compliance hereto is enjoined.
By authority of the President:
(SGD.) CATALINO MACARAIG, JR.
Executive Secretary
Manila, March 24, 1988” (Emphasis supplied)
From a consideration of the foregoing, it is evident that said
Memorandum Circular No. 54 supersedes the 1957 indorsement of
the Bureau of Civil Service. Under said Circular, government officers
and employees are now entitled to the commutation of all leave credits
exclusive of Saturdays, Sundays, and holidays without limitation and
regardless of the period when the credits were earned, provided the
claimant was inthe service as of January 9, 1986.

The issue which then arises is whether or not the phrase “without
limitation and regardless of the period when the credits were earned”
is applicable to the judiciary.Such phrase may be so applicable on the
condition provided in the circular itself,
733
VOL. 216, DECEMBER 21, 1992 733
Re: Judge Alex Z. Reyes
that the judiciary is “not otherwise covered by special law.”
The law governing leave credits of municipal judges began with
RA No. 843 dated May 5, 1953 which provided for vacation and sick
leave, thereby adding a new section to the Judiciary Act of 1948. RA
No. 843 was subsequently amended by R.A. No. 3086 dated June 17,
1961, Section 3 of which provides as follows:
“SEC. 3. Section ninety-eight-A of the same Act, as amended, is
further amended to read as follows:
‘SEC. 98-A. Vacation and sick leaves of judges of municipal courts
and justices of the peace.—Judges of municipal courts and justices of
the peace shall be entitled annually to fifteen days vacation and fifteen
days sick leaves with pay and in the computation thereof Sundays and
holidays shall be excluded and such leave privileges shall be
cumulated but not to exceed threehundred days.’ ”
The above-quoted provision of R.A. No. 3086 was not reproduced in
B.P. No. 129, otherwise known as the Judiciary Reorganization Act of
1980, which expressly repealed the Judiciary Act of 1948.
As to judges of courts of first instance, the law governing their
leave credits was initially section 271 of the Administrative Code
relative to vacation leave. This law was amended by R.A. No. 1399
dated September 9, 1955, which in turrt was amended by R.A. No.
1802 dated June 22, 1957. R.A. No. 1802 was subsequently amended
by R.A. No. 4307 dated June 19, 1965. R.A. No. 4307 was superseded
by the Revised Administrative Code (P.D. No. 1587) which, however,
was never published, and was subsequently expressly repealed by
the 1987 Administrative Code. The 1987 Administrative Code does
not provide for leaves of judges nor does it expressly repeal section
271 of the old Administrative Code. R.A. No. 4307, then is still valid
law. It provides as follows:
“AN ACT TO AMEND SECTION TWO HUNDRED SEVENTY ONE
OF THE REVISED ADMINISTRATIVE CODE, AS LAST AMENDED
BY REPUBLIC ACT NUMBERED ONE THOUSAND EIGHT
ADMELEC Cases
311
HUNDRED TWO, RELATIVE TO VACATION LEAVE OF JUDGES
OF FIRST INSTANCE.
734
734 SUPREME COURT REPORTS ANNOTATED
Re: Judge Alex Z. Reyes
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
SECTION 1. Section two hundred seventy one of Act Numbered
Two thousand seven hundred eleven, as last amended by Republic
Act Numbered One thousand eight hundred two, is hereby further
amended to read as follows:
‘SECTION 271. Leave of absence of Judges, First Instance.—During
the yearly court vacation, the judges of first instance not specially
assigned to vacation duty shall be upon vacation leave. In case of
those who are assigned to vacation duty, they shall be entitled to
vacation leave at any subsequent time for the same number of days
that they spend on vacation duty but not exceeding two months per
year, one month of said leave being cumulative.’
SECTION 2. This Act shall take effect upon its approval. Approved,
June 19, 1965.”
Said law, therefore, provides that judges of first instance not specially
assigned to vacation duty shall be on vacation leave while those on
vacation duty shall be entitled to vacation leave at any subsequent
time for the same number of days that they spend on vacation duty.
The only limitation is that the judge’s entitlement to vacation leave
shall not exceed two months per year, one month of which is
cumulative.
There is nothing in the above law which governs the specific issue
before this Court. R.A. No. 4307 pertains to vacation leaves earned
due to vacation duty and it does not govern the commutation of leave
credits earned. Said R.A. cannot be considered the special law
contemplated by Memorandum Circular No. 54, which would
effectively exclude the judiciary from the operation of Memorandum
Circular No. 54.
It must be noted that said Memorandum Circular was reproduced
in section 26 of the Omnibus Rules Implementing Book V of Executive
Order No. 292 and Other Pertinent Civil Service Laws published in the
Philippine Star on January 15, 1992, and which took effect 30 days
after the completion of its publication. Section 26 provides:

“SEC 26. Any officer/employee of the government who retires,
voluntarily resigns or is separated from the service through no
735
VOL. 216, DECEMBER 21, 1992 735
Re: Judge Alex Z. Reyes
fault of his own, and who is not otherwise covered by special law, shall
be entitled to the commutation of all his leave credits exclusive of
Saturdays, Sundays and holidays without limitation and regardless of
the period when the credits were earned; Provided, That the unlimited
leave privileges may be availed of only by concerned
officers/employees who are in the service as of January 9, 1986, the
date of effectivity of E.O. No. 1077 or thereafter.”
In Section 11 of the Omnibus Rules it is categorically stated that leave
credits of the judiciary are covered by special laws. Section 11 of said
Omnibus Rules provides as follows:
“SEC. 11. Leave credits of Justices of the Supreme Court, Court of
Appeals and Sandiganbayan, Judges of Regional Trial Courts,
Municipal Trial Courts, Metropolitan Trial Courts, Court of Tax
Appeals and Shari’a Circuit Courts, Heads of Executive Departments,
Heads of Departments, Undersecretaries, Chairman and
Commissioners of Constitutional Commissions, Filipino Officers and
Employees in the Foreign Service and other officials and
employees are covered by special laws. Hence, justices and other
government officials covered by special laws should promulgate their
own implementing rules relative thereto: Provided; That said rules
should not go beyond what the special law provides. Finally, said
implementing rules should be submitted to the Civil Service
Commission for record purposes.” (Emphasis supplied)
The special laws provide the boundaries by which the implementing
rules and regulations to be promulgated by “justices and other
government officials covered by special law” are to be limited. Again,
there is no special law governing the specific issue addressed by
Memorandum Circular No. 54 and Section 26 of the Omnibus Rules.
And absent any implementing rules and regulations yet promulgated,
the general provision must be applied there being no reason to
discriminate against the judiciary and deprive judges of the benefits of
commutation without limitation and regardless of the period when the
credits were earned. In other words, there is no special law governing
the commutation of leave credits of Judges and, therefore, they are
entitled to benefits under Memorandum Circular No. 54.
ADMELEC Cases
312
The second issue on the non-exclusion of Saturdays, Sundays,
and holidays is governed by the same principle. As there is likewise
no special law on the specific issue, Memorandum
736
736 SUPREME COURT REPORTS ANNOTATED
Re: Judge Alex Z. Reyes
Circular No. 54 must be applied. And even assuming that there is such
a special law, it cannot provide for lesser privileges or non-application
of general laws to work a disadvantage against Judges. In fact, R.A.
3086 quoted above, now no longer in force, had excluded Sundays
and holidays from the therein computation of vacation and sick leaves
of municipal court judges and the then justices of the peace.
Statutes and administrative rules governing the commutation of
leave benefits of judges must be interpreted in the light of the special
protections given by the Constitution to the judiciary. In Bengzon vs.
Drilon, (G.R. No. 103524) and In Re Request of Retired Justices (AM.
No. 91-8-225-CA) jointly decided on April 15, 1992, this Court
emphasized:
“The provisions regarding retirement pensions of Justices arise from
the package of protections given by the Constitution to guarantee and
preserve the independence of the Judiciary.
The Constitution expressly vests the power of judicial review in this
Court. Any institution given the power to declare, in proper cases, that
acts of both the President and Congress are unconstitutional needs a
high degree of independence in the exercise of its functions. Our
jurisdiction may not be reduced by Congress. Neither may it be
increased without our advice and concurrence. Justices may not be
removed until they reach the reason age 70 except through
impeachment. All courts and court personnel are under the
administrative supervision of the Supreme Court. The President may
not appoint any Judge or Justices unless he or she has been
nominated by the Judicial and Bar Council which, in turn, is under the
Supreme Court’s supervision. Our salaries may not be decreased
during our continuance in office. We cannot be designated to any
agency performing administrative or quasi-judicial functions. We are
specifically given fiscal autonomy. The Judiciary is not only
independent of, but also co-equal and coordinate with the Executive
and Legislative Departments. (Article VIII and Section 30, Article VI,
Constitution).”

In the interpretation of statutes or rules governing the benefits of those
who retire from the government service, a construction is to be sought
which, in proscribing discrimination against Judges, maintains the
independence of the Judiciary.
In Borromeo vs. Civil Service Commission (199 SCRA 911,
[1991]), this Court deemed it necessary to impose a cut-off date for
claims for terminal leave differentials which would have
737
VOL. 216, DECEMBER 21, 1992 737
Re: Judge Alex Z. Reyes
arisen from the ruling, upon practical considerations and budgetary
constraints.
In Re: Request of Atty. Bernardo Zialcita (190 SCRA 851 [1990]),
this Court likewise set a cut-off date for invoking the benefits of that
ruling, noting the mischief that an open-ended rule would bring. Upon
the same considerations, this Court now holds that Memorandum
Circular No. 54 of the Office of the President shall apply in computing
the creditable vacation and sick leave benefits of the members of the
Judiciary who retired or shall retire on or after March 24, 1988, the
date of said Memorandum Circular.
IN VIEW OF THE FOREGOING, the COURT RESOLVED to:
1. (1)GRANT the request of Judge Alex Z. Reyes for:
1. a)The inclusion of 57.625 days vacation leave and 57.625
days sick leave earned for services with the Armed Forces
of the Philippines from 1941 to 1946 in his accumulated
leave credits.
2. b)The exclusion of Saturdays, Sundays and holidays from the
total of his accredited vacation and sick leaves of 322 days
for the period beginning February 17, 1954 to July 19, 1980
during which period Judge Reyes was with the Department
of Finance; and
1. (2)DECLARE that Memorandum Circular No. 54 of the Office
of the President dated March 24, 1988 shall apply in the
computation of the creditable vacation and leave credits of
members the judiciary who retired or shall retire on or after
March 24, 1988, the date of said Memorandum Circular.
ADMELEC Cases
313
SO ORDERED.
G.R. No. 104139. December 22, 1992.*
LYDIA M. PROFETA, petitioner, vs. HON. FRANKLIN M. DRILON, in
his capacity as Executive Secretary, Office of the President of the
Philippines, respondent.
Retirement Law; A pension is not a gratuity but rather a form of
deferred compensation for services performed.—To a public servant,
a pension is not a gratuity but rather a form of deferred compensation
for services performed and his right to it commences to vest upon his
entry into the retirement system and becomes an enforceable
obligation in court upon fulfillment of all conditions under which it is to
be paid. Similarly, retirement benefits receivable by public employees
are valuable parts of the consideration for entrance into and
continuation in public office or employment. They serve a public
purpose and a primary objective in establishing them is to induce
competent persons to enter and remain in public employment and
render faithful and efficient service while so employed.
Same; Retirement laws liberally interpreted in favor of the
retiree.—Retirement laws are liberally interpreted in favor of the retiree
because their intention is to provide for his sustenance and hopefully
even comfort, when he no longer has the stamina to continue earning
his livelihood. The liberal approach aims to achieve the humanitarian
purposes of the law in order that the efficiency, security and well-being
of government employees maybe enhanced.
________________
* EN BANC.
778
778 SUPREME COURT REPORTS
ANNOTATED
Profeta vs. Drilon
Same; Government Service Insurance System; It is the GSIS
which has the original and exclusive jurisdiction to determine whether

a member is qualified or not to avail of the old-age pension benefit
under P.D. 1146 based on its computation of a member’s years of
service with the government.—We hold that it is the GSIS which has
the original and exclusive jurisdiction to determine whether a member
is qualified or not to avail of the old-age pension benefit under P.D.
1146,based on its computation of a member’s years of service with
the government. The computation of a member’s service includes not
only full time but also part time and other services with compensation
as may be included under the rules and regulations prescribed by the
System.
PETITION for review on certiorari of the decision of the Office of the
President.
The facts are stated in the opinion of the Court.
Valdez, Domondon & Associates and Brillantes, Nachura,
Navarro, Arcilla Law Offices for petitioner.
PADILLA, J.:
This is a petition for review on certiorari assailing a portion of the
decision of the Office of the President, dated 23 October 1991,
declaring petitioner as compulsorily retired as of 15 October 1991 and
the resolution dated 31 January 1992 denying petitioner’s motion for
reconsideration of said decision.
The antecedents are the following:
Petitioner, Dr. Lydia M. Profeta, served as Executive Dean of the
Rizal Technological Colleges from 24 October 1974 to 15 October
1978. From 16 October 1978 to 30 April 1979, petitioner was the
appointed Acting President of said College until her promotion to
President of the same college on 1 May 1979.
After the 1986 EDSA revolution or on 5 March 1986, petitioner filed
her courtesy resignation as President of the Rizal Technological
Colleges and the same was accepted on 21 March 1986. A day before
the acceptance of her courtesy resignation, petitioner applied for sick
leave.
On 4 November 1988, petitioner was appointed Acting President
of Eulogio “Amang” Rodriguez Institute of Science and Technology
(hereinafter referred to as EARIST) and was there-
779
ADMELEC Cases
314
VOL. 216, DECEMBER 22, 1992 779
Profeta vs. Drilon
after appointed its President on 29 March 1989.
After reaching the age of sixty-five (65) years on 16 June 1989,
petitioner inquired from the Government Service Insurance System
(GSIS) as to whether she may be allowed to extend her services with
the government as President of EARIST beyond the age of sixty-five
(65) years, to enable her to avail of the old-age pension retirement
benefits under PD 1146 (Revised Government Service Insurance Act
of 1977). In answer to her query, petitioner was advised by the GSIS
to return to the service until she shall have fulfilled the fifteen (15)
years service requirement pursuant to Section 11 of PD 1146, to
qualify for the old-age pension retirement plan. The GSIS declared
that petitioner was not yet eligible to retire under PD 1146, as she had
not rendered the sufficient number of years of service on the date of
her supposed retirement on 16 June 1989 and that her creditable
service was only twelve (12) years and two (2) months. As things
stood, she could only claim one hundred percent (100%) of her
average monthly compensation for every year of creditable service or
to a refund of her premium contributions with the GSIS.1
On 6 October 1989, as recommended by the Department of
Education, Culture and Sports (DECS) Secretary and the Board of
Trustees of EARIST, President Aquino, through Deputy Executive
Secretary Magdangal B. Elma, extended the term of petitioner as
President of EARIST until she shall have completed the required
fifteen (15) years of service after reaching the age of sixty five (65)
years on the date of her normal retirement on 16 June 1989 or for an
additional period of two (2) years, seven (7) months and twelve (12)
days.2
In March 1990, the EARIST Faculty and Employees Union filed an
administrative complaint against petitioner before the Office of the
President, for her alleged irregular appointment and for graft and
corrupt practices. In a memorandum, dated 16 August 1990, the Office
of the President furnished petitioner a copy of the complaint with a
directive to file an answer thereto with the DECS Secretary, who was
duly authorized to conduct a
________________
1 Rollo, pp. 41-42.
2 Ibid., p. 49.

780
780 SUPREME COURT REPORTS ANNOTATED
Profeta vs. Drilon
formal investigation of the charges against petitioner. Pending
investigation of the complaint, petitioner was placed under preventive
suspension for a period of ninety (90) days.3 After serving the period
of suspension, petitioner re-assumed her duties and functions as
President of EARIST.
In a letter dated 20 July 1990, DECS Secretary Carino
recommended the compulsory retirement of petitioner. 4
For the purpose of investigating the administrative charges against
petitioner,5 an Ad-Hoc Committee was created by President Aquino
on 12 February 1991. The parties filed their respective pleadings and
hearings in the case were conducted by the committee.
Pending resolution of the administrative charges against her,
petitioner was detailed with the DECS Central Office pursuant to a
memorandum dated 13 February 1991 signed by Deputy Executive
Secretary Sarmiento III. Petitioner filed a petition for certiorari,
prohibition and mandamus before the Regional Trial Court of Manila,
Branch 40, seeking her reinstatement as EARIST President. After trial,
said petition was dismissed. On appeal, the Court of Appeals denied
the petition for certiorari on 2 April 1991.6
Petitioner likewise assailed her reassignment with the DECS
Central Office, before the Civil Service Commission (CSC). On 30 July
1991, the CSC denied petitioner’s complaint. She moved for
reconsideration of said resolution but the same was denied on 3
December 1991, which prompted petitioner to file a petition for
certiorari before this Court docketed as G.R. No. 103271. On 3 March
1992, this Court dismissed said petition.
After evaluating the evidence presented before the Ad-Hoc
Committee, in a decision7 dated 23 October 1991, the Office of the
President dismissed the administrative complaint against petitioner for
lack of substantial evidence. In the same decision, the Office of the
President also declared petitioner as compulso-
________________
3
Rollo, p. 50.
4 Ibid., pp. 82-83.
5 Ibid., pp. 53-54.
6 Comment, Rollo, pp. 118-120.
ADMELEC Cases
315
7 Rollo, pp. 25-33.
781
VOL. 216, DECEMBER 22, 1992 781
Profeta vs. Drilon
rily retired from government service as of 15 October 1991, holding
that:
“x x x (I)f the aforesaid sick leave of 62 working days (approximately
3 months) were to be added to the respondent’s creditable service,
together with the period of two (2) weeks which the respondent’s
counsel admits in his Memorandum the respondent had served as
Professorial Lecturer, the respondent should be considered as
compulsorily retired as of Oct. 15, 1991, having completed the
required 15 years in the service on or about the said date after
reaching the age of 65.
Accordingly, the administrative charges against Dr. Lydia M.
Profeta for her alleged ‘irregular appointment and graft and corrupt
practices’ are hereby dismissed. However, Dr. Profeta is hereby
considered as now compulsorily retired from the service as of October
15, 1991, in accordance with the provisions of Section 11 (b) of
Presidential Decree No. 1146, having completed fifteen (15) years in
the government service on or about the said date after reaching the
age of sixty-five (65) on June 16, 1989.”8
In a letter dated 23 October 1991, petitioner requested the GSIS to
determine the exact date of her retirement. On 5 November 1991,
petitioner was advised by the GSIS that the exact date of her
retirement falls on 14 August 1992.9
A motion for reconsideration was then filed by petitioner with the
Office of the President, assailing the portion of its decision declaring
her as compulsorily retired from the service as of 15 October 1991,
alleging that the said office has no jurisdiction over the issue of her
compulsory retirement from the government service.
In a resolution10 dated 31 January 1992, petitioner’s motion for
reconsideration was denied by the Office of the President. In the same
resolution, the Office of the President clarified that there was an over
extension of petitioner’s period of service with the government by
failure to reckon with the sixty-two (62) working days during which
petitioner went on sick leave (from
________________

8 Ibid., p. 33.
9 Rollo, p. 71.
10 Rollo, pp. 35-38.
782
782 SUPREME COURT REPORTS ANNOTATED
Profeta vs. Drilon
20 March to 17 June 1986) and the period of two (2) weeks during
which petitioner served as Professorial Lecturer. In considering
petitioner as compulsorily retired as of 15 October 1991, the Office of
the President held that it merely resolved motu proprio to shorten by
three-and-a-half (3-1/2) months the extension granted to petitioner to
complete the required fifteen (15) years of service for purposes of
retirement. It further declared that it is for the President to determine
whether or not petitioner could still continue as EARIST President
despite her exoneration from the administrative charges filed against
her.
Under Presidential Decree No. 1146 (Revised Government
Insurance Act of 1977), one of the benefits provided for qualified
members of the GSIS is the old-age pension benefit. A member who
has rendered at least fifteen (15) years of service and is at least sixty
(60) years old when separated from the service, is entitled to a basic
monthly pension for life but for not less than five (5) years. On the
other hand, a member who has rendered less than fifteen (15) years
of service but with at least three (3) years of service and is sixty (60)
years of age when separated from the service is entitled to a cash
payment equivalent to one hundred percent (100%) of the average
monthly compensation for every year of service.
However, retirement is compulsory for a member who has reached
the age of sixty-five (65) years with at least fifteen (15) years of
service. If he has less than fifteen (15) years of service, he shall be
allowed to continue in the service to complete the fifteen (15)
years,11 to avail of the old-age pension benefit.
To a public servant, a pension is not a gratuity but rather a form of
deferred compensation for services performed and his right to it
commences to vest upon his entry into the retirement system and
becomes an enforceable obligation in court upon fulfillment of all
conditions under which it is to be paid. Similarly, retirement benefits
receivable by public employees are valuable parts of the consideration
for entrance into and continuation in public office or employment. They
ADMELEC Cases
316
serve a public purpose and a primary objective in establishing them is
to induce competent persons to enter and remain in public em-
________________
11 Sections 11 & 12, PD 1146.
783
VOL. 216, DECEMBER 22, 1992 783
Profeta vs. Drilon
ployment and render faithful and efficient service while so
employed.12 Retirement laws are liberally interpreted in favor of the
retiree because their intention is to provide for his sustenance and
hopefully even comfort, when he no longer has the stamina to continue
earning his livelihood.13 The liberal approach aims to achieve the
humanitarian purposes of the law in order that the efficiency, security
and well-being of government employees maybe enhanced.14
In the case at bar, at the time petitioner reached the compulsory
retirement age of sixty-five (65) years, she had rendered less than the
required fifteen (15) years of service under Section 11 of P.D. 1146.
Thus, to enable her to avail of the old-age pension benefit, she was
allowed to continue in the service and her term as President of
EARIST was extended until she shall have completed the fifteen (15)
year service requirement, or for an additional two (2) years, seven (7)
months, and twelve (12) days, as determined by the Office of the
President.
This period of extended service granted to petitioner was amended
by the Office of the President. In resolving the administrative complaint
against petitioner, the Office of the President, ruled not only on the
issues of alleged irregular appointment of petitioner and of graft and
corrupt practices, but went further by, in effect, reducing the period of
extension of service granted to petitioner on the ground that the latter
had already completed the fifteen (15) year service requirement under
P.D. 1146, and declared petitioner as compulsorily retired as of 15
October 1991.
In other words, the extension of service of petitioner was until
January 1992. However, the Office of the President made a new
computation of petitioner’s creditable service. In the process of
determining petitioner’s period of service with the government, the
Office of the President included as part of her service the sixty-two
(62) days sick leave applied for by peti-

________________
12 Ortiz v. Comelec, G.R. No. 78957, 28 June 1998, 162 SCRA
812,
13 Santiago v. COA, G.R. No. 92284, 12 July 1991, 199 SCRA
125.
14 Ortiz v. Comelec, supra.
784
784 SUPREME COURT REPORTS ANNOTATED
Profeta vs. Drilon
tioner covering the period between 20 March to 17 June 1988 and her
service as a lecturer of approximately two (2) weeks, or a total of three-
and-a-half (3 1/2) months. As a result of this new computation,
petitioner’s extension of service which was supposed to end in
January 1992 was reduced by the Office of the President by three-
and-a-half (3 1/2) months or until 15 October 1991.
On the other hand, the computation made by the GSIS as to the
exact date of retirement of petitioner fell on 14 August 1992. 15 Thus,
the extension of service granted to petitioner by the Office of the
President for two (2) years, seven (7) months and twelve (12) days
which brought her services only up to January 1992, would not enable
herein petitioner to complete the fifteen (15) years service requirement
for purposes of retirement. To allow the Office of the President to
shorten the extension of service of petitioner by three-and-a-half (3
1/2) months which consist of petitioner’s sick leave and service as
lecturer, would further reduce petitioner’s service with the government.
Such reduction from petitioner’s service would deprive her of the
opportunity of availing of the old-age pension plan,based on the
computation of the GSIS.
We hold that it is the GSIS which has the original and exclusive
jurisdiction to determine whether a member is qualified or not to avail
of the old-age pension benefit under P.D. 1146,based on its
computation of a member’s years of service with the
government.16 The computation of a member’s service includes not
only full time but also part time and other services with compensation
as may be included under the rules and regulations prescribed by the
System.17
The sixty-two (62) days leave of absence of petitioner between 20
March to 17 June 1986 and her part-time service as a lecturer of
ADMELEC Cases
317
approximately two (2) weeks, or a total of three-and-a-half (3 1/2)
months is not reflected in her service record. Said period should be
considered as part of her service with the government and it is only
but proper that her service record be
________________
15 Rollo, p. 56.
16 Section 24, PD 1146.
17 Section 10, PD 1146.
785
VOL. 216, DECEMBER 22, 1992 785
Profeta vs. Drilon
amended to reflect said period of service.
We have observed that the computation made by the GSIS of
petitioner’s date of retirement failed to take into account the three-and-
a-half (3 1/2) months service of petitioner which was not reflected in
her service record. If we deduct this unrecorded three-and-a-half (3
1/2) months service of petitioner from 14 August 1992, petitioner is to
be considered retired on 30 April 1992.
The order of the Office of the President declaring petitioner as
compulsorily retired as of 15 October 1991 defeats the purpose for
allowing petitioner to remain in the service until she has completed the
fifteen (15) years service requirement. Between the period of 16
October 1991 to 30 April 1992, petitioner should have been allowed to
continue in the service to be able to complete the fifteen (15) years
service requirement; she was prepared to render services for said
period but was not allowed to do so; she should, therefore, be entitled
to all her salaries, benefits and other emoluments during said period
(16 October 1991 - 30 April 1992). However, petitioner’s claim for
reinstatement to her former position to enable her to complete the
fifteen (15) year service requirement for retirement purposes is no
longer possible, considering that she is deemed to have completed
the said service requirement as of 30 April 1992.
WHEREFORE, the portion of the decision of the Office of the
President dated 23 October 1991 declaring petitioner as compulsorily
retired as of 15 October 1991 is SET ASIDE. Petitioner is hereby
declared to have been in the service as President of EARIST from 16
October 1991 until 30 April 1992 and therefore entitled to all salaries,
benefits and other emoluments of said office from 16 October 1991 to

30 April 1992. In addition, she is declared as entitled to her old-age
pension benefits for having reached age 65 years while in the service
with 15 years of service to her credit, subject to her compliance with
all applicable regulations and requirements of the GSIS.
SO ORDERED.
G.R. No. 186560. November 17, 2010.*
GOVERNMENT SERVICE INSURANCE SYSTEM,
petitioner, vs. FERNANDO P. DE LEON, respondent.
Civil Procedure; Courts have the discretion to relax the rules of
procedure in order to protect substantive rights and prevent manifest
injustice to a party.—GSIS contends that respondent’s petition
for mandamus filed before the CA was procedurally improper because
respondent could not show a clear legal right to the relief sought. The
Court disagrees with petitioner. The CA itself acknowledged that it
would not indulge in technicalities to resolve the case, but focus
instead on the substantive issues rather than on procedural questions.
Furthermore, courts have the discretion to relax the rules of procedure
in order to protect substantive rights and prevent manifest injustice to
a party.
Same; Strict and rigid application of rules which would result in
technicalities that tend to frustrate rather than to promote substantial
justice must always be avoided.—The Court has allowed numerous
meritorious cases to proceed despite inherent procedural defects and
lapses. Rules of procedure are mere tools designed to facilitate the
attainment of justice. Strict and rigid application of rules which would
result in technicalities that tend to frustrate rather than to promote
substantial justice must always be avoided.
Same; The inflexible rule in our jurisdiction is that social
legislation must be liberally construed in favor of the beneficiaries; Re-
_______________
* SECOND DIVISION.
322
ADMELEC Cases
318
322 SUPREME COURT REPORTS
ANNOTATED
Government Service Insurance System vs.
De Leon
tirement laws are liberally construed and administered in favor of
the persons intended to be benefited, and all doubts are resolved in
favor of the retiree to achieve their humanitarian purpose.—The
inflexible rule in our jurisdiction is that social legislation must be
liberally construed in favor of the beneficiaries. Retirement laws, in
particular, are liberally construed in favor of the retiree because their
objective is to provide for the retiree’s sustenance and, hopefully, even
comfort, when he no longer has the capability to earn a livelihood. The
liberal approach aims to achieve the humanitarian purposes of the law
in order that efficiency, security, and well-being of government
employees may be enhanced. Indeed, retirement laws are liberally
construed and administered in favor of the persons intended to be
benefited, and all doubts are resolved in favor of the retiree to achieve
their humanitarian purpose.
Same; Retirement; Presidential Decree (PD) No. 1146
specifically mandates that a retiree is entitled to monthly pension for
life.—It must be emphasized that P.D. No. 1146 specifically mandates
that a retiree is entitled to monthly pension for life. As this Court
previously held: Considering the mandatory salary deductions from
the government employee, the government pensions do not constitute
mere gratuity but form part of compensation.
Retirement; Retirement benefits are a form of reward for an
employee’s loyalty and service to the employer, and are intended to
help the employee enjoy the remaining years of his life, lessening the
burden of having to worry about his financial support or upkeep.—
Retirement benefits are a form of reward for an employee’s loyalty and
service to the employer, and are intended to help the employee enjoy
the remaining years of his life, lessening the burden of having to worry
about his financial support or upkeep. A pension partakes of the nature
of “retained wages” of the retiree for a dual purpose: to entice
competent people to enter the government service; and to permit them
to retire from the service with relative security, not only for those who
have retained their vigor, but more so for those who have been
incapacitated by illness or accident.

Same; Government Service Insurance System (GSIS); It is well
to remind Government Service Insurance System (GSIS) of its
mandate to promote the efficiency and welfare of the employees of
our government, and to perform its tasks not only with competence
and proficiency but with genuine compassion and concern.—A final
note.
323
VOL. 635, NOVEMBER 17, 2010 323
Government Service Insurance System vs.
De Leon
The Court is dismayed at the cavalier manner in which GSIS
handled respondent’s claims, keeping respondent in the dark as to the
real status of his retirement benefits for so long. That the agency
tasked with administering the benefits of retired government
employees could so unreasonably treat one of its beneficiaries, one
who faithfully served our people for over 40 years, is appalling. It is
well to remind GSIS of its mandate to promote the efficiency and
welfare of the employees of our government, and to perform its tasks
not only with competence and proficiency but with genuine
compassion and concern.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Estrella C. Elamparo for petitioner.
Julius Anthony R. Omila for respondent.
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule
45 of the Rules of Court. Petitioner Government Service Insurance
System (GSIS) seeks the nullification of the Decision1 dated October
28, 2008 and the Resolution2 dated February 18, 2009 of the Court of
Appeals (CA) in CA-G.R. SP No. 101811.
Respondent Fernando P. de Leon retired as Chief State
Prosecutor of the Department of Justice (DOJ) in 1992, after 44 years
of service to the government. He applied for retirement under Republic
Act (R.A.) No. 910, invoking R.A. No. 3783, as amended by R.A. No.
4140, which provides that chief state prosecutors hold the same rank
ADMELEC Cases
319
as judges. The application was approved by GSIS. Thereafter, and for
more than
_______________
1 Penned by Associate Justice Andres B. Reyes, Jr., with
Associate Justices Jose C. Mendoza (now a member of this Court)
and Sesinando E. Villon, concurring; Rollo, pp. 29-38.
2 Id., at pp. 40-47.
324
324 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
nine years, respondent continuously received his retirement benefits,
until 2001, when he failed to receive his monthly pension.3
Respondent learned that GSIS cancelled the payment of his
pension because the Department of Budget and Management (DBM)
informed GSIS that respondent was not qualified to retire under R.A.
No. 910; that the law was meant to apply only to justices and judges;
and that having the same rank and qualification as a judge did not
entitle respondent to the retirement benefits provided thereunder.
Thus, GSIS stopped the payment of respondent’s monthly pension.4
Respondent wrote GSIS several letters but he received no
response until November 9, 2007, when respondent received the
following letter from GSIS:
Dear Atty. De Leon:
This is in response to your request for resumption of pension benefit.
It appears that you retired under Republic Act No. 910 in 1992 from
your position as Chief State Prosecutor in the Department of Justice.
From 1992 to 2001, you were receiving pension benefits under the
said law. Beginning the year 2002, the Department of Budget and
Management through then Secretary Emilia T. Boncodin already
refused to release the funds for your pension benefit on the ground
that Chief State Prosecutors are not covered by R.A. 910. This
conclusion was later on affirmed by Secretary Rolando G. Andaya, Jr.
in a letter dated 6 June 2006.
In view of these, you now seek to secure benefits under Republic Act
No. 660 or any other applicable GSIS law.
We regret, however, that we cannot accede to your request because
you have chosen to retire and in fact have already retired under a
 320

different law, Republic Act No. 910, more than fifteen (15) years ago.
There is nothing in the GSIS law which sanctions double retirement
unless the retiree is first re-employed and qualifies once again to
_______________
3 Id., at p. 30.
4 Id.
SO ORDERED.”7
The CA found that GSIS allowed respondent to retire under R.A.
No. 910, following precedents which allowed non-judges to retire
under the said law. The CA said that it was not respondent’s fault that
he was allowed to avail of the
_______________

5 Id., at pp. 31-32.

326 6 Id., at p. 32.
7 Id., at pp. 37-38.
326 SUPREME COURT REPORTS ANNOTATED
326
Government Service Insurance System vs. De
326 SUPREME COURT REPORTS ANNOTATED
Leon
retire under GSIS law. In fact, Section 55 of Republic Act No. 8291 Government Service Insurance System vs. De
provides for exclusivity of benefits which means that a retiree may Leon
choose only one retirement scheme available to him to the exclusion benefits under R.A. No. 910; and that, even if his retirement under that
of all others. law was erroneous, respondent was, nonetheless, entitled to a
Nonetheless, we believe that the peculiarities of your case is a matter monthly pension under the GSIS Act. The CA held that this was not a
that may be jointly addressed or threshed out by your agency, the case of double retirement, but merely a continuation of the payment
Department of Justice, and the Department of Budget and of respondent’s pension benefit to which he was clearly entitled. Since
Management. the error in the award of retirement benefits under R.A. 910 was not
Very truly yours, attributable to respondent, it was incumbent upon GSIS to continue
(signed) defraying his pension in accordance with the appropriate law which
CECIL L. FELEO might apply to him. It was unjust for GSIS to entirely stop the payment
Senior Vice President of respondent’s monthly pension without providing any alternative
Social Insurance Group5 sustenance to him.8
The CA further held that, under R.A. No. 660, R.A. No. 8291, and
Respondent then filed a petition for mandamus before the CA, Presidential Decree (P.D.) No. 1146, respondent is entitled to a
praying that petitioner be compelled to continue paying his monthly monthly pension for life. He cannot be penalized for the error
pension and to pay his unpaid monthly benefits from 2001. He also committed by GSIS itself. Thus, although respondent may not be
asked that GSIS and the DBM be ordered to pay him damages.6 qualified to receive the retirement benefits under R.A. No. 910, he is
In the assailed October 28, 2008 Decision, the CA resolved to still entitled to a monthly pension under R.A. No. 660, P.D. No. 1146,
grant the petition, to wit: and R.A. No. 8291.9
“WHEREFORE, the petition is GRANTED. The GSIS is hereby Petitioner GSIS is now before this Court, assailing the Decision of
ordered to pay without delay petitioner Atty. Fernando de Leon, his the CA and the Resolution denying its motion for reconsideration.
monthly adjusted pension in accordance with other applicable law not GSIS admits that respondent received monthly pensions from
under RA 910. It is also ordered to pay the back pensions which August 1997 until December 2001. Thereafter, the DBM refused to
should also be adjusted to conform to the applicable law from the time remit the funds for respondent’s pension on the ground that he was
his pension was withheld. not entitled to retire under R.A. No. 910 and should have retired under

ADMELEC Cases

another law, without however specifying which law it was.10 It appears
that the DBM discontinued the payment of respondent’s pension on
the basis of the memorandum of the Chief Presidential Legal Counsel
that Chief Prosecutors of the DOJ are not entitled to the retirement
package under R.A. No. 910.
_______________
8 Id., at p. 35.
9 Id., at p. 37.
10 Id., at p. 15.
327
VOL. 635, NOVEMBER 17, 2010 327
Government Service Insurance System vs. De
Leon
Because of the discontinuance of his pension, respondent sought
to convert his retirement under R.A. No. 910 to one under another law
administered by GSIS.11 However, this conversion was not allowed
because, as GSIS avers, R.A. No. 8291 provides that conversion of
one’s retirement mode on whatever ground and for whatever reason
is not allowed beyond one year from the date of retirement.
GSIS assails the CA’s Decision for not specifying under which law
respondent’s retirement benefits should be paid, thus making it legally
impossible for GSIS to comply with the directive.12 It then raises
several arguments that challenge the validity of the appellate court’s
decision.
GSIS argues, first, that the CA erred in issuing a writ
of mandamus despite the absence of any specific and clear right on
the part of respondent, since he could not even specify the benefits to
which he is entitled and the law under which he is making the claim.13
Second, GSIS alleges that it had refunded respondent’s premium
payments because he opted to retire under R.A. No. 910, which it does
not administer. Thus, GSIS posits that the nexus between itself and
respondent had been severed and, therefore, the latter cannot claim
benefits from GSIS anymore.14
Third, GSIS contends that the CA erred in concluding that
respondent would not be unjustly enriched by the continuation of his
monthly pension because he had already benefited from having
erroneously retired under R.A. No. 910. GSIS points out that it had
refunded respondent’s premium contributions. When the Chief
ADMELEC Cases
321
Presidential Legal Counsel concluded that respondent was not
entitled to retire under R.A. No. 910, it was implicit recognition that
respondent was actu-
_______________
11 Id.
12 Id., at p. 12.
13 Id., at p. 17.
14 Id., at p. 19.
328
328 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
ally not entitled to the P1.2 million lump sum payment he received,
which he never refunded.15
Fourth, GSIS points out that the CA erred in concluding that
respondent was not seeking conversion from one retirement mode to
another. It reiterates that R.A. No. 8291 expressly prohibits conversion
beyond one year from retirement. To compel GSIS to release
respondent’s retirement benefits despite the fact that he is disqualified
to receive retirement benefits violates R.A. No. 8291, and would
subject its officials to possible charges under R.A. No. 3019, the Anti-
Graft and Corrupt Practices Act.
Fifth, GSIS contends that respondent is not entitled to the
retirement benefits under R.A. No. 8291 because, when he retired in
1992, the law had not yet been enacted. The retirement laws
administered by GSIS at that time were R.A. No. 660, R.A. No. 1616,
and P.D. No. 1146.
Lastly, GSIS argues that the writ of mandamus issued by the CA
is not proper because it compels petitioner to perform an act that is
contrary to law.
Respondent traverses these allegations, and insists that he has a
clear legal right to receive retirement benefits under either R.A. No.
660 or P.D. No. 1146.16 He claims that he has met all the conditions
for entitlement to the benefits under either of the two
laws.17 Respondent contends that the return of his contributions does
not bar him from pursuing his claims because GSIS can require him
to refund the premium contributions, or even deduct the amount
returned to him from the retirement benefits he will receive.18 He also

argues that resumption of his monthly pension will not constitute
unjust
_______________
15 Id., at p. 21.
16 Id., at p. 78.
17 Id.
18 Id., at pp. 81-82.
329
VOL. 635, NOVEMBER 17, 2010 329
Government Service Insurance System vs. De
Leon
enrichment because he is entitled to the same as a matter of right for
the rest of his natural life.19
Respondent accepts that, contrary to the pronouncement of the
CA, he is not covered by R.A. No. 8291. He, therefore, asks this Court
to modify the CA Decision, such that instead of Section 13 of R.A. No.
8291, it should be Section 12 of P.D. No. 1146 or Section 11 of R.A.
No. 660 to be used as the basis of his right to receive, and the
adjustment of, his monthly pension.
Furthermore, respondent argues that allowing him to retire under
another law does not constitute “conversion” as contemplated in the
GSIS law. He avers that his application for retirement under R.A. No.
910 was duly approved by GSIS, endorsed by the DOJ, and
implemented by the DBM for almost a decade. Thus, he should not be
made to suffer any adverse consequences owing to the change in the
interpretation of the provisions of R.A. No. 910. Moreover, he could
not have applied for conversion of his chosen retirement mode to one
under a different law within one year from approval of his retirement
application, because of his firm belief that his retirement under R.A.
No. 910 was proper—a belief amply supported by its approval by
GSIS, the favorable endorsement of the DOJ, and its implementation
by the DBM.20
The petition is without merit.
Initially, we resolve the procedural issue.
GSIS contends that respondent’s petition for mandamus filed
before the CA was procedurally improper because respondent could
not show a clear legal right to the relief sought.
ADMELEC Cases
322
The Court disagrees with petitioner. The CA itself acknowledged
that it would not indulge in technicalities to resolve the case, but focus
instead on the substantive issues
_______________
19 Id., at p. 84.
20 Id., at pp. 85-86.
330
330 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
rather than on procedural questions.21 Furthermore, courts have the
discretion to relax the rules of procedure in order to protect substantive
rights and prevent manifest injustice to a party.
The Court has allowed numerous meritorious cases to proceed
despite inherent procedural defects and lapses. Rules of procedure
are mere tools designed to facilitate the attainment of justice. Strict
and rigid application of rules which would result in technicalities that
tend to frustrate rather than to promote substantial justice must always
be avoided.22
Besides, as will be discussed hereunder, contrary to petitioner’s
posture, respondent has a clear legal right to the relief prayed for.
Thus, the CA acted correctly when it gave due course to respondent’s
petition for mandamus.
This case involves a former government official who, after
honorably serving office for 44 years, was comfortably enjoying his
retirement in the relative security of a regular monthly pension, but
found himself abruptly denied the benefit and left without means of
sustenance. This is a situation that obviously cries out for the proper
application of retirement laws, which are in the class of social
legislation.
The inflexible rule in our jurisdiction is that social legislation must
be liberally construed in favor of the beneficiaries. 23 Retirement laws,
in particular, are liberally construed in favor of the retiree 24 because
their objective is to provide for the retiree’s sustenance and, hopefully,
even comfort, when he no longer has the capability to earn a
livelihood. The liberal approach aims to achieve the humanitarian
purposes of the
_______________

21 Id., at p. 33.
22 Vallejo v. Court of Appeals, 471 Phil. 670, 684; 427 SCRA 658,
668 (2004). (Citations omitted.)
23 See Buena Obra v. Social Security System, 449 Phil. 200; 401
SCRA 206 (2003).
24 Profeta v. Drilon, G.R. No. 104139, December 22, 1992, 216
SCRA 777.
331
VOL. 635, NOVEMBER 17, 2010 331
Government Service Insurance System vs. De
Leon
law in order that efficiency, security, and well-being of government
employees may be enhanced.25 Indeed, retirement laws are liberally
construed and administered in favor of the persons intended to be
benefited, and all doubts are resolved in favor of the retiree to achieve
their humanitarian purpose.26
In this case, as adverted to above, respondent was able to
establish that he has a clear legal right to the reinstatement of his
retirement benefits.
In stopping the payment of respondent’s monthly pension, GSIS
relied on the memorandum of the DBM, which, in turn, was based on
the Chief Presidential Legal Counsel’s opinion that respondent, not
being a judge, was not entitled to retire under R.A. No. 910. And
because respondent had been mistakenly allowed to receive
retirement benefits under R.A. No. 910, GSIS erroneously concluded
that respondent was not entitled to any retirement benefits at all, not
even under any other extant retirement law. This is flawed logic.
Respondent’s disqualification from receiving retirement benefits
under R.A. No. 910 does not mean that he is disqualified from
receiving any retirement benefit under any other existing retirement
law.
The CA, however, incorrectly held that respondent was covered by
R.A. No. 8291. R.A. No. 8291 became a law after respondent retired
from government service. Hence, petitioner and even respondent
agree that it does not apply to respondent, because the law took effect
after respondent’s retirement.
Prior to the effectivity of R.A. No. 8291, retiring government
employees who were not entitled to the benefits under
_______________
ADMELEC Cases
323
25 Department of Budget and Management v. Manila’s Finest
Retirees Association, Inc., G.R. No. 169466, May 9, 2007, 523 SCRA
90, 104, citing Request of Clerk of Court Tessie L. Gatmaitan, 372
Phil. 1, 7-8; 313 SCRA 134, 140 (1999).
26 Re: Monthly Pension of Judges and Justices, A.M. No. 90-9-
019-SC, October 4, 1990, 190 SCRA 315, 320.
332
332 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
R.A. No. 910 had the option to retire under either of two laws:
Commonwealth Act No. 186, as amended by R.A. No. 660, or P.D.
No. 1146.
In his Comment, respondent implicitly indicated his preference to
retire under P.D. No. 1146, since this law provides for higher benefits,
and because the same was the latest law at the time of his retirement
in 1992.27
Under P.D. No. 1146, to be eligible for retirement benefits, one
must satisfy the following requisites:
“Section 11. Conditions for Old-Age Pension.
(a) Old-age pension shall be paid to a member who:
(1) has at least fifteen years of service;
(2) is at least sixty years of age; and
(3) is separated from the service.
Respondent had complied with these requirements at the time of
his retirement. GSIS does not dispute this. Accordingly, respondent is
entitled to receive the benefits provided under Section 12 of the same
law, to wit:
“Section 12. Old-Age Pension.
(a) A member entitled to old-age pension shall receive the basic
monthly pension for life but in no case for a period less than five
years: Provided, That, the member shall have the option to convert the
basic monthly pensions for the first five years into a lump sum as
defined in this Act: Provided, further, That, in case the pensioner dies
before the expiration of the five-year period, his primary beneficiaries
shall be entitled to the balance of the amount still due to him. In default
of primary beneficiaries, the amount shall be paid to his legal heirs.”

To grant respondent these benefits does not equate to double
retirement, as GSIS mistakenly claims. Since respondent has been
declared ineligible to retire under R.A. No. 910,
_______________
27 Rollo, p. 79.
333
VOL. 635, NOVEMBER 17, 2010 333
Government Service Insurance System vs. De
Leon
GSIS should simply apply the proper retirement law to respondent’s
claim, in substitution of R.A. No. 910. In this way, GSIS would be
faithful to its mandate to administer retirement laws in the spirit in
which they have been enacted, i.e., to provide retirees the
wherewithal to live a life of relative comfort and security after years of
service to the government. Respondent will not receive—and GSIS is
under no obligation to give him—more than what is due him under the
proper retirement law.
It must be emphasized that P.D. No. 1146 specifically mandates
that a retiree is entitled to monthly pension for life. As this Court
previously held:
“Considering the mandatory salary deductions from the
government employee, the government pensions do not constitute
mere gratuity but form part of compensation.
In a pension plan where employee participation is mandatory, the
prevailing view is that employees have contractual or vested rights in
the pension where the pension is part of the terms of employment. The
reason for providing retirement benefits is to compensate service to
the government. Retirement benefits to government employees are
part of emolument to encourage and retain qualified employees in the
government service. Retirement benefits to government employees
reward them for giving the best years of their lives in the service of
their country.
Thus, where the employee retires and meets the eligibility
requirements, he acquires a vested right to benefits that is protected
by the due process clause. Retirees enjoy a protected property
interest whenever they acquire a right to immediate payment under
pre-existing law. Thus, a pensioner acquires a vested right to benefits
that have become due as provided under the terms of the public
ADMELEC Cases
324
employees’ pension statute. No law can deprive such person of his
pension rights without due process of law, that is, without notice and
opportunity to be heard.”28
_______________
28 GSIS, Cebu City Branch v. Montesclaros, 478 Phil. 573, 583-
584; 434 SCRA 441, 448-449 (2004). (Citations omitted.)
334
334 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
It must also be underscored that GSIS itself allowed respondent to
retire under R.A. No. 910, following jurisprudence laid down by this
Court.
One could hardly fault respondent, though a seasoned lawyer, for
relying on petitioner’s interpretation of the pertinent retirement laws,
considering that the latter is tasked to administer the government’s
retirement system. He had the right to assume that GSIS personnel
knew what they were doing.
Since the change in circumstances was through no fault of
respondent, he cannot be prejudiced by the same. His right to receive
monthly pension from the government cannot be jeopardized by a new
interpretation of the law.
GSIS’ argument that respondent has already been enormously
benefited under R.A. No. 910 misses the point.
Retirement benefits are a form of reward for an employee’s loyalty
and service to the employer, and are intended to help the employee
enjoy the remaining years of his life, lessening the burden of having to
worry about his financial support or upkeep. A pension partakes of the
nature of “retained wages” of the retiree for a dual purpose: to entice
competent people to enter the government service; and to permit them
to retire from the service with relative security, not only for those who
have retained their vigor, but more so for those who have been
incapacitated by illness or accident.29
Surely, giving respondent what is due him under the law is not
unjust enrichment.
As to GSIS’ contention that what respondent seeks is conversion
of his retirement mode, which is prohibited under R.A. No. 8291, the

Court agrees with the CA that this is not a case of conversion within
the contemplation of the law. The conversion under the law is one that
is voluntary, a choice to
_______________
29 Conte v. Commission on Audit, 332 Phil. 20, 34-35; 264 SCRA
19, 29-30 (1996). (Citations omitted.)
335
VOL. 635, NOVEMBER 17, 2010 335
Government Service Insurance System vs. De
Leon
be made by the retiree. Here, respondent had no choice but to look
for another law under which to claim his pension benefits because the
DBM had decided not to release the funds needed to continue
payment of his monthly pension.
Respondent himself admitted that, if the DBM had not suspended
the payment of his pension, he would not have sought any other law
under which to receive his benefits. The necessity to “convert” was not
a voluntary choice of respondent but a circumstance forced upon him
by the government itself.
Finally, GSIS would like this Court to believe that because it has
returned respondent’s premium contributions, it is now legally
impossible for it to comply with the CA’s directive.
Given the fact that respondent is ineligible to retire under R.A. No.
910, the refund by GSIS of respondent’s premium payments was
erroneous. Hence, GSIS can demand the return of the erroneous
payment or it may opt to deduct the amount earlier received by
respondent from the benefits which he will receive in the future.
Considering its expertise on the matter, GSIS can device a scheme
that will facilitate either the reimbursement or the deduction in the most
cost-efficient and beneficial manner.
The foregoing disquisition draws even greater force from
subsequent developments. While this case was pending, the
Congress enacted Republic Act No. 10071,30 the Prosecution Service
Act of 2010. On April 8, 2010, it lapsed into law without the signature
of the President,31 pursuant to Article VI, Section 27(1) of the
Constitution.32
_______________
ADMELEC Cases
325
30 An Act Strengthening and Rationalizing the National
Prosecution Service.
31 <www.senate.gov.ph/announcement.pdf> (visited on October
19, 2010).
32 Section 27. (1) Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he approves
the same he shall sign it; otherwise, he shall veto it and return the
same with his objections to the House where it originated, which
336
336 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
Section 24 of R.A. No. 10071 provides:
“Section 24. Retroactivity.—The benefits mentioned in Sections
14 and 16 hereof shall be granted to all those who retired prior to the
effectivity of this Act.”
By virtue of this express provision, respondent is covered by R.A.
No. 10071. In addition, he is now entitled to avail of the benefits
provided by Section 23, that “all pension benefits of retired
prosecutors of the National Prosecution Service shall be automatically
increased whenever there is an increase in the salary and allowance
of the same position from which he retired.”
Respondent, as former Chief State Prosecutor, albeit the position
has been renamed “Prosecutor General,”33 should enjoy the same
retirement benefits as the Presiding Justice of the CA, pursuant to
Section 14 of R.A. No. 10071, to wit:
“Section 14. Qualifications, Rank and Appointment of the
Prosecutor General.—The Prosecutor General shall have the same
qualifications for appointment, rank, category, prerogatives, salary
grade and salaries, allowances, emoluments, and other privileges,
shall be subject to the same inhibitions and disqualifications, and shall
enjoy the same retirement and other benefits as those of the
_______________
shall enter the objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, two-thirds of all the
Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall

likewise be reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the
names of the Members voting for or against shall be entered in its
Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt
thereof, otherwise, it shall become a law as if he had signed it.
(Emphasis supplied.)
33 R.A. No. 10071, Sec. 17.
337
VOL. 635, NOVEMBER 17, 2010 337
Government Service Insurance System vs. De
Leon
Presiding Justice of the Court of Appeals and shall be appointed by
the President.”34
Furthermore, respondent should also benefit from the application
of Section 16 of the law, which states:
“Section 16. Qualifications, Ranks, and Appointments of
Prosecutors, and other Prosecution Officers.—x x x.
Any increase after the approval of this Act in the salaries,
allowances or retirement benefits or any upgrading of the grades or
levels thereof of any or all of the Justices or Judges referred to herein
to whom said emoluments are assimilated shall apply to the
corresponding prosecutors.”
Lastly, and most importantly, by explicit fiat of R.A. No. 10071,
members of the National Prosecution Service have been granted the
retirement benefits under R.A. No. 910, to wit:
“Section 25. Applicability.—All benefits heretofore extended
under Republic Act No. 910, as amended, and all other benefits that
may be extended by the way of amendment thereto shall likewise be
given to the prosecutors covered by this Act.”
Hence, from the time of the effectivity of R.A. No. 10071,
respondent should be entitled to receive retirement benefits granted
under R.A. No. 910.
ADMELEC Cases
326
Consequently, GSIS should compute respondent’s retirement
benefits from the time the same were withheld until April 7, 2010 in
accordance with P.D. No. 1146; and his retirement benefits from April
8, 2010 onwards in accordance with R.A. No. 910.
A final note. The Court is dismayed at the cavalier manner in which
GSIS handled respondent’s claims, keeping respondent in the dark as
to the real status of his retirement benefits for so long. That the agency
tasked with administering
_______________
34 Emphasis supplied.
338
338 SUPREME COURT REPORTS ANNOTATED
Government Service Insurance System vs. De
Leon
the benefits of retired government employees could so unreasonably
treat one of its beneficiaries, one who faithfully served our people for
over 40 years, is appalling. It is well to remind GSIS of its mandate to
promote the efficiency and welfare of the employees of our
government, and to perform its tasks not only with competence and
proficiency but with genuine compassion and concern.
WHEREFORE, the foregoing premises considered, the Decision
dated October 28, 2008 and the Resolution dated February 18, 2009
of the Court of Appeals in CA-G.R. SP No. 101811 are hereby
AFFIRMED WITH MODIFICATION. Government Service Insurance
System is ORDERED to (1) pay respondent’s retirement benefits in
accordance with P.D. No. 1146, subject to deductions, if any,
computed from the time the same were withheld until April 7, 2010;
and (2) pay respondent’s retirement benefits in accordance with R.A.
No. 910, computed from April 8, 2010 onwards.
In order that respondent may not be further deprived of his monthly
pension benefits, this Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.

G.R. No. 111812. May 31, 1995.*
DIONISIO M. RABOR, petitioner, vs. CIVIL SERVICE COMMISSION,
respondent.
Civil Service Commission; Administrative Law; Test of a Valid
Subordinate Legislation; Statutory Construction; In subordinate,
delegated rule-making by administrative agencies, all that may be
reasonably demanded is a showing that the delegated legislation
consisting of administrative regulations are germane to the general
purposes projected by the governing or enabling statute.—Clearly,
therefore, Cena when it required a considerably higher degree of
detail in the statute to be implemented, went against prevailing
doctrine. It seems clear that if the governing or enabling statute is quite
detailed and specific to begin with, there would be very little need (or
occasion) for implementing administrative regulations. It is, however,
precisely the inability of legislative bodies to anticipate all (or many)
possible detailed situations
_______________
*
EN BANC.
615
VOL. 244, MAY 31, 1995 615
Rabor vs. Civil Service Commission
in respect of any relatively complex subject matter, that makes
subordinate, delegated rule-making by administrative agencies so
important and unavoidable. All that may be reasonably demanded is
a showing that the delegated legislation consisting of administrative
regulations are germane to the general purposes projected by the
governing or enabling statute. This is the test that is appropriately
applied in respect of Civil Service Memorandum Circular No. 27,
Series of 1990, and to this test we now turn.
Same; Same; Retirement; The extension of service of
government retirees who have reached sixty-five years of age is an
area that is covered by both P.D. 1146 and the Administrative Code
of 1987.—We consider that the enabling statute that should
ADMELEC Cases
327
appropriately be examined is the present Civil Service law—found in
Book V, Title I, Subtitle A, of Executive Order No. 292 dated 25 July
1987, otherwise known as the Administrative Code of 1987—and not
alone P.D. No. 1146, otherwise known as the “Revised Government
Service Insurance Act of 1977.” For the matter of extension of service
of retirees who have reached sixty-five (65) years of age is an area
that is covered by both statutes and not alone by Section 11 (b) of P.D.
No. 1146. This is crystal clear from examination of many provisions of
the present civil service law.
Same; Same; Same; The physiological and psychological
processes associated with ageing in human beings are in fact related
to the efficiency and quality of the service that may be expected from
individual persons.—We find it very difficult to suppose that the
limitation of permissible extensions of service after an employee has
reached sixty-five (65) years of age has no reasonable relationship or
is not germane to the foregoing provisions of the present Civil Service
Law. The physiological and psychological processes associated with
ageing in human beings are in fact related to the efficiency and quality
of the service that may be expected from individual persons.
Same; Same; Same; Civil Service Memorandum Circular No.
27, Series of 1990, more specifically par. 1 thereof, is valid and
effective, and the doctrine in Cena v. Civil Service Commission, 211
SCRA 179 (1992), is modified accordingly.—Our conclusion is that the
doctrine of Cena should be and is hereby modified to this extent: that
Civil Service Memorandum Circular No. 27, Series of 1990, more
specifically paragraph (1) thereof, is hereby declared valid and
effective. Section 11 (b) of P.D. No. 1146 must, accordingly, be read
together with Memorandum Circular No. 27. We reiterate, however,
the holding in Cena that the head of the government agency
concerned is vested with discretion-
616
616 SUPREME COURT REPORTS
ANNOTATED
Rabor vs. Civil Service Commission
ary authority to allow or disallow extension of the service of an
official or employee who has reached sixty-five (65) years of age
without completing fifteen (15) years of government service; this
discretion is, nevertheless, to be exercised conformably with the
 328

provisions of Civil Service Memorandum Circular No. 27, Series of “Please be informed that the extension of services of Mr. Rabor is
1990. contrary to M.C. No. 65 of the Office of the President, the relevant
portion of which is hereunder quoted:
PETITION for review of a decision of the Civil Service Commission. ‘Officials and employees who have reached the compulsory
retirement age of 65 years shall not be retained in the service, except
The facts are stated in the opinion of the Court. for extremely meritorious reasons in which case the retention shall not
Public Attorney’s Office for petitioner. exceed six (6) months.’
IN VIEW WHEREFORE, please be advised that the services of Mr.
FELICIANO, J.: Dominador [M.] Rabor as Utility Worker, in that office, is already non-
extend[i]ble.”3
Petitioner Dionisio M. Rabor is a Utility Worker in the Office of the
Accordingly, on 8 August 1991, Mayor Duterte furnished a copy of the
Mayor, Davao City. He entered the government service as a Utility
26 July 1991 letter of Director Cawad to Rabor and advised him “to
Worker on 10 April 1978 at the age of 55 years.
stop reporting for work effective August 16, 1991.”4
Sometime in May 1991,1 Alma D. Pagatpatan, an official in the
Petitioner Rabor then sent to the Regional Director, CSRO-XI, a
Office of the Mayor of Davao City, advised Dionisio M. Rabor to apply
letter dated 14 August 1991, asking for extension of his services in the
for retirement, considering that he had already reached the age of
City Government until he “shall have completed the fifteen (15) years
sixty-eight (68) years and seven (7) months, with thirteen (13) years
service [requirement] in the Government so that [he] could also avail
and one (1) month of government service. Rabor responded to this
of the benefits of the retirement laws given to employees of the
advice by exhibiting a “Certificate of Membership”2 issued by the
Government.” The extension he was asking for was about two (2)
Government Service Insurance System (“GSIS”) and dated 12 May
years. Asserting that he was “still in good health and very able to
1988. At the bottom of this “Certificate of Membership” is a typewritten
perform the duties and functions of [his] position as Utility Worker,”
statement of the following tenor: “Service extended to comply 15 years
Rabor sought “extension of [his] service as an exception to
service reqts.” This statement is followed by a non-legible initial with
Memorandum Circular No. 65 of the Office of the President.” 5 This
the following date “2/ 28/91.”
request was denied by Director Cawad on 15 August 1991.
Thereupon, the Davao City Government, through Ms. Pagatpatan,
Petitioner Rabor next wrote to the Office of the President on 29
wrote to the Regional Director of the Civil Service Commission, Region
January 1992 seeking reconsideration of the decision of Director
XI, Davao City (“CSRO-XI”), informing the latter of the foregoing and
Cawad, CSRO-XI. The Office of the President referred Mr. Rabor’s
requesting advice “as to what action [should] be taken on this matter.”
letter to the Chairman of the Civil Service Commission on 5 March
In a letter dated 26 July 1991, Director Filemon B. Cawad of
1992.
CSRO-XI advised Davao City Mayor Rodrigo R. Duterte as follows:
In its Resolution No. 92-594, dated 28 April 1992, the Civil Service
_______________
Commission dismissed the appeal of Mr. Rabor and affirmed the
action of Director Cawad embodied in the latter’s
1 Annex “A,” Letter/Petition, Rollo, p. 4.
_______________
2 Annex “A-1,” Letter/Petition, Rollo, p. 5.
617 3 Annex “B,” Letter/Petition, Rollo, p. 6.
VOL. 244, MAY 31, 1995 617
4 Annex “B-1,” Letter/Petition, Rollo, p. 7.
5 Annex “C,” Letter/Petition, Rollo, p. 8.
Rabor vs. Civil Service Commission
618

ADMELEC Cases

618 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
letter of 26 July 1991. This Resolution stated in part:
“In his appeal, Rabor requested that he be allowed to continue
rendering services as Utility Worker in order to complete the fifteen
(15) year service requirement under P.D. 1146. CSC Memorandum
Circular No. 27, s. 1990 provides, in part:
1. ‘1.Any request for extension of service of compulsory retirees
to complete the fifteen years service requirement for
retirement shall be allowed only to permanent appointees in
the career service who are regular members of the
Government Service Insurance System (GSIS) and shall be
granted for a period of not exceeding one (1) year.’
Considering that as early as October 18, 1988, Rabor was already
due for retirement, his request for further extension of service cannot
be given due course.”6 (Italics in the original)
On 28 October 1992, Mr. Rabor sought reconsideration of Resolution
No. 92-594 of the Civil Service Commission this time invoking the
Decision of this Court in Cena v. Civil Service Commission.7 Petitioner
also asked for reinstatement with back salaries and benefits, having
been separated from the government service effective 16 August
1991. Rabor’s motion for reconsideration was denied by the
Commission.
Petitioner Rabor sent another letter dated 16 April 1993 to the
Office of the Mayor, Davao City, again requesting that he be allowed
to continue rendering service to the Davao City Government as Utility
Worker in order to complete the fifteen (15) years service requirement
under P.D. No. 1146. This request was once more denied by Mayor
Duterte in a letter to petitioner dated 19 May 1993. In this letter, Mayor
Duterte pointed out that, under Cena, grant of the extension of service
was discretionary on the part of the City Mayor, but that he could not
grant the extension requested. Mayor Duterte’s letter, in relevant part,
read:
“The matter was referred to the City Legal Office and the Chairman of
the Civil Service Commission, in the advent of the decision of the
Supreme Court in the Cena vs. CSC, et al. (G.R. No. 97419 dated
ADMELEC Cases
329
_______________
6 CSC Resolution No. 92-594, Rollo, pp. 11-12.
7 211 SCRA 179 (1992).
619
VOL. 244, MAY 31, 1995 619
Rabor vs. Civil Service Commission
July 3, 1992), for legal opinion. Both the City Legal Officer and the
Chairman of the Civil Service Commission are one in these opinion
that extending you an appointment in order that you may be able to
complete the fifteen-year service requirement is discretionary [on the
part of] the City Mayor.
Much as we desire to extend you an appointment but
circumstances are that we can no longer do so. As you are already
nearing your 70th birthday may no longer be able to perform the duties
attached to your position. Moreover, the position you had vacated was
already filled up.
We therefore regret to inform you that we cannot act favorably on
your request.”8 (Emphases supplied)
At this point, Mr. Rabor decided to come to this Court. He filed a
Letter/Petition dated 6 July 1993 appealing from Civil Service
Resolution No. 92-594 and from Mayor Duterte’s letter of 10 May
1993.
The Court required petitioner Rabor to comply with the formal
requirements for instituting a special civil action of certiorari to review
the assailed Resolution of the Civil Service Commission. In turn, the
Commission was required to comment on petitioner’s
Letter/Petition. 9 The Court subsequently noted petitioner’s Letter of
13 September 1993 relating to compliance with the mentioned formal
requirements and directed the Clerk of Court to advise petitioner to
engage the services of counsel or to ask for legal assistance from the
Public Attorney’s Office (PAO).10
The Civil Service Commission, through the Office of the Solicitor
General, filed its comment on 16 November 1993. The Court then
resolved to give due course to the Petition and required the parties to
file memoranda. Both the Commission and Mr. Rabor (the latter
through PAO counsel) did so.

In this proceeding, petitioner Rabor contends that his claim falls
squarely within the ruling of this Court in Cena v. Civil Service
Commission.11
Upon the other hand, the Commission seeks to distinguish this
case from Cena. The Commission, through the Solicitor
_______________
8 Rollo, p. 3.
9 Supreme Court Resolution dated 24 August 1993, Rollo, p. 17.
10 Rollo, p. 40-A.
11 211 SCRA 179 (1992).
620
620 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
General, stressed that in Cena, this Court had ruled that the employer
agency, the Land Registration Authority of the Department of Justice,
was vested with discretion to grant to Cena the extension requested
by him. The Land Registration Authority had chosen not to exercise
its discretion to grant or deny such extension. In contrast, in the instant
case, the Davao City Government did exercise its discretion on the
matter and decided to deny the extension sought by petitioner Rabor
for legitimate reasons.
While the Cena decision is barely three (3) years old, the Court
considers that it must reexamine the doctrine of Cena and the
theoretical and policy underpinnings thereof.12
We start by recalling the factual setting of Cena.
Gaudencio Cena was appointed Registrar of the Register of Deeds
of Malabon, Metropolitan Manila, on 16 July 1987. He reached the
compulsory retirement age of sixty-five (65) years on 22 January 1991.
By the latter date, his government service would have reached a total
of eleven (11) years, nine (9) months and six (6) days. Before reaching
his 65th birthday, Cena requested the Secretary of Justice, through
the Administrator of the Land Registration Authority (“LRA”) that he be
allowed to extend his service to complete the fifteen-year service
requirement to enable him to retire with the full benefit of an Old-Age
Pension under Section 11 (b) of P.D. No. 1146. If Cena’s request were
granted, he would complete fifteen (15) years of government service
on 15 April 1994, at the age of sixty-eight (68) years.
ADMELEC Cases
330
The LRA Administrator sought a ruling from the Civil Service
Commission on whether or not Cena’s request could be granted
considering that Cena was covered by Civil Service Memorandum No.
27, Series of 1990. On 17 October 1990, the Commission allowed
Cena a one (1) year extension of his service from 22 January 1991 to
22 January 1992 under its Memorandum Circular No. 27. Dissatisfied,
Cena moved for reconsideration, without success. He then came to
this Court, claiming that he was entitled to an extension of three (3)
years, three (3) months and twenty-four (24) days to complete the
fifteen-year service re-
_______________
12 Two (2) Justices dissented—Griño-Aquino and Romero, JJ.—
from the Cena decision.
621
VOL. 244, MAY 31, 1995 621
Rabor vs. Civil Service Commission
quirement for retirement with full benefits under Section 11 (b) of P.D.
No. 1146.
This Court granted Cena’s petition in its Decision of 3 July 1992.
Speaking through Mr. Justice Medialdea, the Court held that a
government employee who has reached the compulsory retirement
age of sixty-five (65) years, but at the same time has not yet completed
fifteen (15) years of government service required under Section 11 (b)
of P.D. No. 1146 to qualify for the Old-Age Pension Benefit, may be
granted an extension of his government service for such period of time
as may be necessary to “fill-up” or comply with the fifteen (15)-year
service requirement. The Court also held that the authority to grant the
extension was a discretionary one vested in the head of the agency
concerned. Thus the Court concluded:
“Accordingly, the Petition is GRANTED. The Land Registration
Authority (LRA) and Department of Justice has the discretion to
allow petitioner Gaudencio Cena to extend his 11 years, 9 months and
6 days of government service to complete the fifteen-year service so
that he may retire with full benefits under Section 11, paragraph (b) of
P.D. 1146.”13 (Emphases supplied)

The Court reached the above conclusion primarily on the basis of the
“plain and ordinary meaning” of Section 11 (b) of P.D. No. 1146.
Section 11 may be quoted in its entirety:
“Sec. 11. Conditions for Old-Age Pension.—(a) Old-Age Pension shall
be paid to a member who
1. (1)has at least fifteen (15) years of service;
2. (2)is at least sixty (60) years of age; and
3. (3)is separated from the service.
1. (b)unless the service is extended by appropriate authorities,
retirement shall be compulsory for an employee at sixty-five
(65) years of age with at least fifteen (15) years of service;
Provided, that if he has less than fifteen (15) years of
service, he shall be allowed to continue in the service to
complete the fifteen (15) years.” (Emphases supplied)
_______________
13 211 SCRA at 192.
622
622 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
The Court went on to rely upon the canon of liberal construction which
has often been invoked in respect of retirement statutes:
“Being remedial in character, a statute granting a pension or
establishing [a] retirement plan should be liberally construed and
administered in favor of persons intended to be benefitted thereby.
The liberal approach aims to achieve the humanitarian purposes of
the law in order that efficiency, security and well-being of government
employees may be enhanced.”14 (Citations omitted)
While Section 11 (b) appeared cast in verbally unqualified terms, there
were (and still are) two (2) administrative issuances which prescribe
limitations on the extension of service that may be granted to an
employee who has reached sixty-five (65) years of
age.
ADMELEC Cases
331
The first administrative issuance is Civil Service Commission
Circular No. 27, Series of 1990, which should be quoted in its entirety:
“TO : ALL HEADS OF DEPARTMENTS, BUREAUS AND
AGENCIES OF THE NATIONAL/LOCAL GOVERNMENTS
INCLUDING GOVERNMENT-OWNED AND/OR CONTROLLED
CORPORATIONS WITH ORIGINAL CHARTERS
SUBJECT: Extension of Service of Compulsory Retiree to Complete
the Fifteen Years Service Requirement for Retirement Purposes
Pursuant to CSC Resolution No. 90-454 dated May 21, 1990, the Civil
Service Commission hereby adopts and promulgates the following
policies and guidelines in the extension of services of compulsory
retirees to complete the fifteen years service requirement for
retirement purposes:
1. 1.Any request for the extension of service of compulsory
retirees to complete the fifteen (15) years service
requirement for retirement shall be allowed only to
permanent appointees in the career service who are regular
members of the Government Service Insurance System
(GSIS), and shall be granted for a period not exceeding one
(1) year.
_______________
14 211 SCRA at 186.
623
VOL. 244, MAY 31, 1995 623
Rabor vs. Civil Service Commission
1. 2.Any request for the extension of service of compulsory
retiree to complete the fifteen (15) years service requirement
for retirement who entered the government service at 57
years of age or over upon prior grant of authority to appoint
him or her, shall no longer be granted.
2. 3.Any request for the extension of service to complete the
fifteen (15) years service requirement of retirement shall be

filed not later than three (3) years prior to the date of
compulsory retirement.
3. 4.Any request for the extension of service of a compulsory re-
tiree who meets the minimum number of years of service for
retirement purposes may be granted for six (6) months only
with no further extension.
This Memorandum Circular shall take effect immediately.”
(Emphases supplied)
The second administrative issuance—Memorandum Circular No. 65
of the Office of the President, dated 14 June 1988—pro-vides:
“x x x xxx xxx
WHEREAS, this Office has been receiving requests for
reinstatement and/or retention in the service of employees who have
reached the compulsory retirement age of 65 years, despite the strict
conditions provided for in Memorandum Circular No. 163, dated March
5, 1968, as amended.
WHEREAS, the President has recently adopted a policy to adhere
more strictly to the law providing for compulsory retirement age of 65
years and, in extremely meritorious cases, to limit the service beyond
the age of 65 years to six (6) months only.
WHEREFORE, the pertinent provision of Memorandum Circular
No. 163 on the retention in the service of officials or employees who
have reached the compulsory retirement age of 65 years, is hereby
amended to read as follows
‘Officials or employees who have reached the compulsory retirement
age of 65 years shall not be retained in the service, except for
extremely meritorious reasons in which case the retention shall not
exceed six (6) months.’
All heads of departments, bureaus, offices and instrumentalities of
the government including government-owned or controlled
corporations, are hereby enjoined to require their respective offices to
strictly comply with this circular.
This Circular shall take effect immediately.
624
624 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
ADMELEC Cases
332
By authority of the President
(Sgd.)
CATALINO MACARAIG, JR.
Executive Secretary
Manila, June 14, 1988.”15 (Italics supplied)
Medialdea, J. resolved the challenges posed by the above two (2)
administrative regulations by, firstly, considering as invalid Civil
Service Memorandum No. 27 and, secondly, by interpreting the Office
of the President’s Memorandum Circular No. 65 as inapplicable to the
case of Gaudencio T. Cena.
We turn first to the Civil Service Commission’s Memorandum
Circular No. 27. Medialdea, J. wrote:
“The Civil Service Commission Memorandum Circular No. 27 being in
the nature of an administrative regulation, must be governed by the
principle that administrative regulations adopted under legislative
authority by a particular department must be in harmony with the
provisions of the law, and should be for the sole purpose of carrying
into effect its general provisions (People v. Maceren, G.R. No. L-
32166, October 18, 1977, 79 SCRA 450; Teoxon v. Members of the
Board of Administrators, L-25619, June 30, 1970, 33 SCRA
585; Manuel v. General Auditing Office, L-28952, December 29,
1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29
SCRA 350). x x x. The rule on limiting to one year the extension of
service of an employee who has reached the compulsory retirement
age of sixty-five (65) years, but has less than fifteen (15) years of
service under Civil Service Memorandum Circular No. 27, S. 1990,
cannot likewise be accorded validity because it has no relationship or
connection with any provision of P.D. 1146 supposed to be carried into
effect. The rule was an addition to or extension of the law, not merely
a mode of carrying it into effect. The Civil Service Commission has no
power to supply perceived omissions in P.D. 1146.”16 (Italics supplied)
It will be seen that Cena, in striking down Civil Service Commission
Memorandum No. 27, took a very narrow view on the question of what
subordinate rule-making by an administrative agency is permissible
and valid. That restrictive view must
_______________
15 211 SCRA at 200-201.

16 211 SCRA at 190.
625
VOL. 244, MAY 31, 1995 625
Rabor vs. Civil Service Commission
be contrasted with this Court’s earlier ruling in People v.
Exconde,17 where Mr. Justice J.B.L. Reyes said:
“It is well established in this jurisdiction that, while the making of laws
is a non-delegable activity that corresponds exclusively to Congress,
nevertheless, the latter may constitutionally delegate authority and
promulgate rules and regulations to implement a given legislation and
effectuate its policies, for the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and provide for the
multifarious and complex situations that may be met in carrying the
law into effect. All that is required is that the regulation should be
germane to the objects and purposes of the law; that the regulation be
not in contradiction with it, but conform to the standards that the law
prescribes.”18 (Italics supplied)
In Tablarin v. Gutierrez,19 the Court, in sustaining the validity of a
MECS Order which established passing a uniform admission test
called the National Medical Admission Test (NMAT) as a prerequisite
for eligibility for admission into medical schools in the Philippines, said:
“The standards set for subordinate legislation in the exercise of rule
making authority by an administrative agency like the Board of
Medical Education are necessarily broad and highly abstract. As
explained by then Mr. Justice Fernando in Edu v. Ericta (35 SCRA
481 [1970])—
‘The standards may be either expressed or implied. If the
former, the non-delegation objection is easily met. The standard
though does not have to be spelled out specifically. It could be implied
from the policy and purpose of the act considered as a whole. In the
Reflector Law, clearly the legislative objective is public safety. What is
sought to be attained in Calalang v. Williams is “safe transit upon the
roads .’ ”
We believe and so hold that the necessary standards are set forth
in Section 1 of the 1959 Medical Act: ‘the standardization and
regulation of medical education’ and in Section 5 (a) and 7 of the same
Act, the body of the statute itself, and that these considered together
are sufficient
ADMELEC Cases
333
_______________
17 101 Phil. 1125 (1957).
18 101 Phil. at 1129.
19 152 SCRA 730 (1987).
626
626 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
compliance with the requirements of the non-delegation
principle.”20 (Citations omitted; italics partly in the original and partly
supplied)
In Edu v. Ericta,21 then Mr. Justice Fernando stressed the abstract and
very general nature of the standards which our Court has in prior
caselaw upheld as sufficient for purposes of compliance with the
requirements for validity of subordinate or administrative rule-making:
“This Court has considered as sufficient standards, ‘public welfare,’
(Municipality of Cardona v. Municipality of Binangonan, 36 Phil.
547 [1917]); ‘necessary in the interest of law and order,’ (Rubi v.
Provincial Board, 39 Phil. 660 [1919]); ‘public interest,’ (People v.
Rosenthal, 68 Phil. 328 [1939]); and ‘justice and equity and
substantial merits of the case,’ (International Hardwood v. Pangil
Federation of Labor, 17 Phil. 602 [1940]).”22 (Italics supplied)
Clearly, therefore, Cena when it required a considerably higher
degree of detail in the statute to be implemented, went against
prevailing doctrine. It seems clear that if the governing or enabling
statute is quite detailed and specific to begin with, there would be very
little need (or occasion) for implementing administrative regulations. It
is, however, precisely the inability of legislative bodies to anticipate all
(or many) possible detailed situations in respect of any relatively
complex subject matter, that makes subordinate, delegated rule-
making by administrative agencies so important and unavoidable. All
that may be reasonably demanded is a showing that the delegated
legislation consisting of administrative regulations are germane to the
general purposes projected by the governing or enabling statute. This
is the test that is appropriately applied in respect of Civil Service
Memorandum Circular No. 27, Series of 1990, and to this test we now
turn.
 334

We consider that the enabling statute that should appropriately be service beyond retirement age;
examined is the present Civil Service Law—found in Book V, Title I, xxx xxx xxx
Subtitle A, of Executive Order No. 292 dated 25 5. (17)Administer the retirement program for government
_______________ officials and employees, and accredit government services
and evaluate qualifications for retirement;
20 152 SCRA at 740-741. xxx xxx xxx
21 35 SCRA 481 (1970). 6. (19)Perform all functions properly belonging to a central
22 35 SCRA at 497 (note 43). personnel agency and such other functions as may be
provided by law.” (Italics supplied)
627
VOL. 244, MAY 31, 1995 627 It was on the bases of the above quoted provisions of the 1987
Rabor vs. Civil Service Commission Administrative Code that the Civil Service Commission promulgated
July 1987, otherwise known as the Administrative Code of 1987— its Memorandum Circular No. 27. In doing so, the Commission was
and not alone P.D. No. 1146, otherwise known as the “Revised acting as “the central personnel agency of the government
Government Service Insurance Act of 1977.” For the matter of empowered to promulgate policies, standards and guide-
extension of service of retirees who have reached sixty-five (65) years 628
of age is an area that is covered by both statutes and not alone by 628 SUPREME COURT REPORTS ANNOTATED
Section 11 (b) of P.D. No. 1146. This is crystal clear from examination Rabor vs. Civil Service Commission
of many provisions of the present civil service law.
lines for efficient, responsive and effective personnel administration in
Section 12 of the present Civil Service Law set out in the 1987
the government.”23 It was also discharging its function of
Administrative Code provides, in relevant part, as follows:
“administering the retirement program for government officials and
“Sec. 12. Powers and Functions.—The [Civil Service] Commission
employees” and of “evaluat[ing] qualifications for retirement.”
shall have the following powers and functions:
In addition, the Civil Service Commission is charged by the 1987
xxx xxx xxx
Administrative Code with providing leadership and assistance “in
the development and retention of qualified and efficient work force in
1. (2)Prescribe, amend and enforce rules and regulations the Civil Service” (Section 16 [10]) and with the “enforcement of the
for carrying into effect the provisions of the Civil Service constitutional and statutory provisions, relative to retirement and the
Law and other pertinent laws; regulation for the effective implementation of the retirement of
2. (3)Promulgate policies, standards and guidelines for the Civil government officials and employees” (Section 16 [14]).
Service and adopt plans and programs to We find it very difficult to suppose that the limitation of permissible
promote economical, efficient and effective personnel extensions of service after an employee has reached sixty-five (65)
administration in the government; years of age has no reasonable relationship or is not germane to the
xxx xxx xxx foregoing provisions of the present Civil Service Law. The
3. (10)Formulate, administer and evaluate programs relative to physiological and psychological processes associated with ageing in
the development and retention of a qualified and competent human beings are in fact related to the efficiency and quality of the
work force in the public service; service that may be expected from individual persons. The policy
xxx xxx xxx considerations which guided the Civil Service Commission in limiting
4. (14)Take appropriate action on all appointments and other the maximum extension of service allowable for compulsory retirees,
personnel matters in the Civil Service including extension of

ADMELEC Cases

were summarized by Griño-Aquino, J. in her dissenting opinion
in Cena:
“Worth pondering also are the points raised by the Civil Service
Commission that extending the service of compulsory retirees for
longer than one (1) year would: (1) give a premium to late-comers in
the government service and in effect discriminate against those who
enter the service at a younger age; (2) delay the promotion of the latter
and of next-in-rank employees; and (3) prejudice the chances for
employment of qualified young civil service applicants who have
already passed the various government examinations but must wait
for jobs to be vacated by ‘extendees’ who have long passed the
mandatory retirement age but are enjoying extension of their
government service to complete 15 years so they may qualify for old-
age pension.”24 (Italics supplied)
_______________
23 See Addendum to Comment filed by Civil Service Commission
dated 5 August 1991; Cena Rollo, p. 91.
24 211 SCRA at 196.
629
VOL. 244, MAY 31, 1995 629
Rabor vs. Civil Service Commission
Cena laid heavy stress on the interest of retirees or would be retirees,
something that is, in itself, quite appropriate. At the same time,
however, we are bound to note that there should be countervailing
stress on the interests of the employer agency and of other
government employees as a whole. The results flowing from the
striking down of the limitation established in Civil Service
Memorandum Circular No. 27 may well be “absurd and inequitable,”
as suggested by Mme. Justice Griño-Aquino in her dissenting opinion.
An employee who has rendered only three (3) years of government
service at age sixty-five (65) can have his service extended for twelve
(12) years and finally retire at the age of seventy-seven (77). This
reduces the significance of the general principle of compulsory
retirement at age sixty-five (65) very close to the vanishing point.
The very real difficulties posed by the Cena doctrine for rational
personnel administration and management in the Civil Service, are
aggravated when Cena is considered together with the case of Toledo
ADMELEC Cases
335
v. Civil Service Commission.25 Toledo involved the provisions of Rule
III, Section 22, of the Civil Service Rules on Personnel Action and
Policies (CSRPAP) which prohibited the appointment of persons fifty-
seven (57) years old or above in government service without prior
approval of the Civil Service Commission. Civil Service Memorandum
Circular No. 5, Series of 1983 provided that a person fifty-seven (57)
years of age may be appointed to the Civil Service provided that the
exigencies of the government service so required and provided that
the appointee possesses special qualifications not possessed by other
officers or employees in the Civil Service and that the vacancy cannot
be filled by promotion of qualified officers or employees of the Civil
Service. Petitioner Toledo was appointed Manager of the Education
and Information Division of the Commission on Elections when he was
almost fifty-nine (59) years old. No authority for such appointment had
been obtained either from the President of the Philippines or from the
Civil Service Com-
_______________
25 202 SCRA 507 (1991). We are not here, of course,
reexamining Toledo for this case is not, strictly speaking, involved at
present. At the same time, we cannot disregard the intellectual
relevance of the doctrine in Toledo to the issues that we are presently
addressing.
630
630 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
mission and the Commission found that the other conditions laid down
in Section 22 of Rule III, CSRPAP, did not exist. The Court
nevertheless struck down Section 22, Rule III on the same
exceedingly restrictive view of permissible administrative legislation
that Cena relied on.26
When one combines the doctrine of Toledo with the ruling in Cena,
very strange results follow. Under these combined doctrines, a person
sixty-four (64) years of age may be appointed to the government
service and one (1) year later may demand extension of his service
for the next fourteen (14) years; he would retire at age seventy-nine
(79). The net effect is thus that the general statutory policy of
compulsory retirement at sixty-five (65) years is heavily eroded and
effectively becomes unenforceable. That general statutory policy may

be seen to embody the notion that there should be a certain minimum
turn-over in the government service and that opportunities for
government service should be distributed as broadly as possible,
specially to younger people, considering that the bulk of our population
is below thirty (30) years of age. That same general policy also reflects
the life expectancy of our people which is still significantly lower than
the life expectancy of, e.g., people in Northern and Western Europe,
North America and Japan.
Our conclusion is that the doctrine of Cena should be and is
hereby modified to this extent: that Civil Service Memorandum
Circular No. 27, Series of 1990, more specifically paragraph (1)
______________
26 Toledo held:
“[Section 22, Rule III] is entirely a creation of the Civil Service
Commission, having no basis in the law itself which it was meant to
implement. It cannot be related to or connected with any specific
provision of the law which it is meant to carry into effect, such as a
requirement, for instance, that age should be reckoned as a factor in
the employment or reinstatement of an individual, or a direction that
there be a determination of some point in a person’s life at which he
becomes unemployable or employable [only] under specific
conditions. x x x [S]ince there is no prohibition or restriction on the
employment of fifty-seven (57) year old persons x x x there was
nothing to carry into effect through an implementing rule on the
matter.” (202 SCRA at 513-514, per Paras, J.; italics supplied).
631
VOL. 244, MAY 31, 1995 631
Rabor vs. Civil Service Commission
thereof, is hereby declared valid and effective. Section 11 (b) of P.D.
No. 1146 must, accordingly, be read together with Memorandum
Circular No. 27. We reiterate, however, the holding in Cena that the
head of the government agency concerned is vested with
discretionary authority to allow or disallow extension of the service of
an official or employee who has reached sixty-five (65) years of age
without completing fifteen (15) years of government service; this
discretion is, nevertheless, to be exercised conformably with the
provisions of Civil Service Memorandum Circular No. 27, Series of
1990.
ADMELEC Cases
336
We do not believe it necessary to deal specifically with
Memorandum Circular No. 65 of the Office of the President dated 14
June 1988. It will be noted from the text quoted supra (pp. 11-12) that
the text itself of Memorandum Circular No. 65 (and for that matter, that
of Memorandum Circular No. 163, also of the Office of the President,
dated 5 March 1968)27 does not purport to apply only to officers or
employees who have reached the age of sixty-five (65) years and who
have at least fifteen (15) years of government service. We noted
earlier that Cena interpreted Memorandum Circular No. 65 as
referring only to officers and employees who have both reached the
compulsory retirement age of sixty-five (65) and completed the fifteen
(15) years of government service. Cena so interpreted this
Memorandum Circular precisely because Cena had reached the
conclusion that employees who have reached sixty-five (65) years of
age, but who have less than fifteen (15) years of government service,
may be allowed such extension of service as may be needed to
complete fifteen (15) years of service. In other words, Cena read
Memorandum Circular No. 65 in such a way as to comport with Cena’s
own conclusion reached without regard to that Memorandum Circular.
In view of the conclusion that we today reached in the instant case,
this last ruling of Cena is properly regarded as merely obiter.
We also do not believe it necessary to determine whether Civil
Service Memorandum Circular No. 27 is fully compatible with Office of
the President’s Memorandum Circular No. 65; this question must be
reserved for detailed analysis in some future
_______________
27 64 Official Gazette 3295 (1 April 1968).
632
632 SUPREME COURT REPORTS ANNOTATED
Rabor vs. Civil Service Commission
justiciable case.
Applying now the results of our reexamination of Cena to the
instant case, we believe and so hold that Civil Service Resolution No.
92-594 dated 28 April 1992 dismissing the appeal of petitioner Rabor
and affirming the action of CSRO-XI Director Cawad dated 26 July
1991, must be upheld and affirmed.
ACCORDINGLY, for all the foregoing, the Petition for Certiorari is
hereby DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.
G.R. No. 139792. November 22, 2000.*
ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF
APPEALS, METROPOLITAN AUTHORITY, now known as
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE
CIVIL SERVICE COMMISSION, respondents.
Civil Service Commission; Separation Pay; For the purpose of
computing or determining petitioner’s separation pay under Section 11
of Republic Act No. 7924, his years of service in the Judiciary should
be excluded and his separation pay should be solely confined to his
services in the Metropolitan Manila Authority.—We affirm the assailed
judgment. We agree with the Court of Appeals and the Civil Service
Commission that for the purpose of computing or determining
petitioner’s separation pay under Section 11 of R.A. No. 7924, his
years of service in the Judiciary should be excluded and that his
separation pay should be solely confined to his services in the MMA.
Same; Same; Republic Act No. 7924 allows the grant of
separation pay to employees who were to be displaced thereby the
separation pay can
_______________
*
EN BANC.
554
554 SUPREME COURT REPORTS
ANNOTATED
Santos vs. Court of Appeals
be based only on the length of service in the Metropolitan Manila
Authority; The separation pay must relate only to the employment thus
affected.—In the first place, the last paragraph of Section 11 of R.A.
No. 7924 on the grant of separation pay at the rate of “one and one-
fourth (1 1/4) months of salary for every year of service” cannot by any
stretch of logic or imagination be interpreted to refer to the total length
of service of an MMA employee in the government, i.e., to include
such service in the government outside the MMA. Since it allows the
grant of separation pay to employees who were to be displaced
ADMELEC Cases
337
thereby the separation pay can be based only on the length of service
in the MMA. The displacement amounted to an abolition of the office
or position of the displaced employees, such as that of petitioner. The
rule is settled that Congress may abolish public offices. Such a power
is a consequent prerogative of its power to create public offices.
However, the power to abolish is subject to the condition that it be
exercised in good faith. The separation partook of the nature of a
disturbance of compensation; hence, the separation pay must relate
only to the employment thus affected.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Antonio F. Navarrete for petitioner.
The Solicitor General for respondents.
DAVIDE, JR., C.J.:
In this petition for review on certiorari petitioner assails the decision of
19 August 1999 of the Court of Appeals1 in CA-G.R. SP No. 48301,
which held that petitioner’s separation pay under Section 11 of R.A.
No. 7924 should be limited to the number of years of his service in the
Metropolitan Manila Authority (MMA) only, excluding his years of
service as judge of the Metropolitan Trial Court (MeTC) of Quezon City
for which he has already been given retirement gratuity and pension.
The undisputed facts are as follows:
_______________
1Rollo, 31-41. Per Barcelona, R., J., with Demetria, D., and
GozoDadole, M., JJ., concurring.
555
VOL. 345, NOVEMBER 22, 2000 555
Santos vs. Court of Appeals
On 18 January 1983, petitioner was appointed Judge of the MeTC of
Quezon City, and he thereafter assumed office. After the military-
backed EDSA revolt, petitioner was reappointed to the same position.
On 1 April 1992, petitioner optionally retired from the Judiciary
under R.A. No. 910,2 as amended, and received his retirement gratuity

under the law for his entire years in the government service; and five
years thereafter he has been regularly receiving a monthly pension.
On 2 December 1993, petitioner re-entered the government
service. He was appointed Director III of the Traffic Operation Center
of the MMA. His appointment was approved by the Civil Service
Commission (CSC).
On 1 March 1995, Congress enacted R.A. No. 7924, which
reorganized the MMA and renamed it as Metropolitan Manila
Development Authority (MMDA). Section 11 thereof reads:
Section 11. Transitory Provisions.—To prevent disruption in the
delivery of basic urban services pending the full implementation of the
MMDA’s organizational structure and staffing pattern, all officials and
employees of the interim MMA shall continue to exercise their duties
and functions and receive their salaries and allowances until they shall
have been given notice of change of duties and functions, and of being
transferred to another office or position.
...
The civil service laws, rules and regulations pertinent to the
displacement of personnel affected by this Act shall be strictly
enforced. The national government shall provide such amounts as
may be necessary to pay the benefits accruing to displaced
employees at the rate of one and one-fourth (1 1/4) month’s salary for
every year of service: Provided,That, if qualified for retirement under
existing retirement laws, said employees may opt to receive the
benefits thereunder.
_______________
2 Not R.A. No. 901 as stated in the challenged decision of the Court
of Appeals (Rollo, 31), or R.A. No. 601 as stated in Resolution No. 97-
4266 of the Civil Service Commission (Rollo, 50 and 52). R.A. No. 910,
as amended, was further amended by R.A. No. 5095 and P.D. No.
1438.
556
556 SUPREME COURT REPORTS ANNOTATED
Santos vs. Court of Appeals
On 16 May 1996, the President of the Philippines issued
Memorandum Order No. 372 approving the Rules and Regulations
Implementing R.A. No. 7924. Pursuant thereto, the MMDA issued
ADMELEC Cases
338
Resolution No. 16, series of 1996, which, inter alia, authorized the
payment of separation benefits to the officials and employees of the
former MMA who would be separated as a result of the implementation
of R.A. No. 7924.
On 30 August 1996, the MMDA issued a Memorandum to
petitioner informing him that in view of his “voluntary option to be
separated from the service” his services would automatically cease
effective at the close of office hours on 15 September 1996, and that
he would be entitled to “separation benefits equivalent to one and one-
fourth (1 1/4) monthly salary for every year of service as provided
under Section 11 of the MMDA Law.”
In view of some doubt or confusion as to the extent of his
separation benefits, petitioner submitted a Position Paper wherein he
asserted that since the retirement gratuity he received under R.A. No.
910, as amended, is not an additional or double compensation, all the
years of his government service, including those years in the Judiciary,
should be credited in the computation of his separation benefits under
R.A. No. 7924. The Assistant Manager for Finance of the MMDA
referred the Position Paper to the Regional Office of the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR
handed down an opinion that the payment of petitioner’s separation
pay must be in accordance with Civil Service Resolution No. 92-063,
pertinent portions of which read:
[T]he payment of separation/[retirement] benefits cannot be subject to
the prohibition against the [sic] double compensation in cases when
officers and employees who were previously granted said benefits are
rehired or reemployed in another government Agency or Office. Thus,
there is no need for separated employees to refund the
separation/retirement benefits they received when subsequently
reemployed in another government agency or office.
. . . This being so, while an employee who was paid
separation/retirement benefits is not required to refund the same once
reemployed in the government service, as aforestated, for reasons of
equity however, it would be proper and logical that said
separation/retirement benefits should never-
557
VOL. 345, NOVEMBER 22, 2000 557
Santos vs. Court of Appeals

theless be deducted from the retirement/[separation] pay to be
received by the employee concerned. Moreover, in this instance, the
employee concerned has the option either to refund his
separation/retirement benefits and claim his gross
retirement/separation pay without any deduction corresponding to his
separation pay received, or not [to] refund his separation/retirement
pay but suffer a deduction of his retirement/separation gratuity for the
total amount representing his previous separation/retirement pay
received.
His motion for reconsideration having been denied, petitioner elevated
the opinion of Director Acebedo to the CSC.
On 21 October 1997, the CSC promulgated Resolution No.
974266 affirming the opinion of Director Acebedo and dismissing
petitioner’s appeal. Citing Chaves v. Mathay,3 it held that petitioner
cannot be paid retirement benefits twice—one under R.A. No. 910, as
amended, and another under R.A. No. 7924—for the same services
he rendered as MeTC Judge. He can only exercise one of two options
in the computation of his separation pay under R.A. 7924. These
options are (1) to refund the gratuity he received under R.A. No. 910,
as amended, after he retired from the MeTC and get the full separation
pay for his entire years in the government, that is 9 years and 2 months
with the MeTC plus two (2) years and eight (8) months for his services
as Director III in the defunct MMA, at the rate of one and one-fourth
salary for every year of service pursuant to MMDA Memorandum
dated 30 August 1996; or (2) to retain the gratuity pay he received for
his services as MeTC Judge but an equivalent amount shall be
deducted from the separation benefits due from the former MMA for
his entire government service.
On 9 June 1998, the CSC promulgated Resolution No. 98-1422
denying petitioner’s motion for reconsideration. Accordingly, petitioner
filed with the Court of Appeals a petition to set aside these
Resolutions.
On 19 August 1999, the Court of Appeals promulgated its decision,
now challenged in this case. It held that the CSC was “correct
_______________
3 37 SCRA 776 [1971].
558
ADMELEC Cases
339
558 SUPREME COURT REPORTS ANNOTATED
Santos vs. Court of Appeals
in dismissing petitioner’s appeal from the opinion of Director
Acebedo.” It ratiocinated as follows:
There is no specific rule of law which applies to petitioner’s case.
Nevertheless, the Court finds it equitable to deny his claim for payment
of separation pay at the rate of one and one-fourth (1 1/4) month’s
salary for every year of his service in government, that is, inclusive of
the number of years he served as Judge of the Metropolitan Trial Court
of Manila [sic].
Petitioner already received and is continually receiving gratuity for
his years of service as a Metropolitan Trial Court Judge. Equity
dictates that he should no longer be allowed to receive further gratuity
for said years of service in the guise of separation pay.
Suffice it to state that upon his retirement from his office as a
Judge, petitioner has already closed a chapter of his government
service. The State has already shown its gratitude for his services
when he was paid retirement benefits under Republic Act No. 901
[sic]. For that is what retirement benefits are for. Rewards [are] given
to an employee who has given up the best years of his life to the
service of his country (Gov’t. Service Insurance System v. Civil
Service Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude to petitioner by
awarding him separation pay for his services as a director of the Metro
Manila Authority (MMA), another chapter of petitioner’s government
service which has come to a close by the reorganization of the MMA
into the Metropolitan Manila Development Authority.
The Court, in limiting the computation of petitioner’s separation pay
to the number of years of his service at the MMA, merely is
implementing the ruling in “Chavez, Sr. vs. Mathay” (37 SCRA 776),
which ruling, if not actually in point, is nevertheless applicable owing
to its “common-sense consideration.” Said ruling reads:
“The ‘common-sense consideration’ stated by Mr. Justice J.B.L.
Reyes for the Court in Espejo, that if a retiree is being credited with
his years of service under his first retirement in computing his gratuity
under his second retirement, it is but just that the retirement gratuity
received by him under his first retirement should also be charged to
his account, manifestly govern the case at bar. It is but in accordance
with the rule consistently enunciated by the Court as in Anciano v.
Otadoy,affirming Borromeo, that claims for double retirement or

pension such as petitioner’s, ‘would run roughshod over the well-
settled rule that in the absence of an express legal excep
559
VOL. 345, NOVEMBER 22, 2000 559
Santos vs. Court of Appeals
tion, pension and gratuity laws should be so construed as to preclude
any person from receiving double pension.’ (p. 780, italics supplied)
The case at bench is not, strictly speaking, about ‘double pension.’
It is, however, about the interpretation of a gratuity law, viz., Section
11 of Republic Act No. 7924 which awards separation pay to those
government employees who were displaced by the reorganization of
the MMA into the MMDA, which should be construed to preclude a
government employee from receiving double gratuity for the same
years of service.
We affirm the assailed judgment. We agree with the Court of Appeals
and the Civil Service Commission that for the purpose of computing
or determining petitioner’s separation pay under Section 11 of R.A.
No. 7924, his years of service in the Judiciary should be excluded and
that his separation pay should be solely confined to his services in the
MMA.
In the first place, the last paragraph of Section 11 of R.A. No. 7924
on the grant of separation pay at the rate of “one and onefourth (1 1/4)
months of salary for every year of service” cannot by any stretch of
logic or imagination be interpreted to refer to the total length of service
of an MMA employee in the government, i.e., to include such service
in the government outside the MMA. Since it allows the grant of
separation pay to employees who were to be displaced thereby the
separation pay can be based only on the length of service in the MMA.
The displacement amounted to an abolition of the office or position of
the displaced employees, such as that of petitioner. The rule is settled
that Congress may abolish public offices. Such a power is a
consequent prerogative of its power to create public
offices.4 However, the power to abolish is subject to the condition that
it be exercised in good faith.5 The separation partook of the nature of
a disturbance of compensation; hence, the separation pay must relate
only to the employment thus affected.
_______________
ADMELEC Cases
340
4 Manalang v. Quitoriano, 94 Phil. 903 [1954]; Rodriguez v.
Montinola, 94 Phil. 964 [1954]; Castillo v. Pajo, 103 Phil.
515 [1958]; Ulep v. Carbonell, 4 SCRA 375 [1962]; Llanto v.
Dimaporo, 16 SCRA 599 [1966]; Canonizado v. Aguirre, G.R. No.
133132, 25 January 2000, 323 SCRA 312.
5 Cruz v. Primicias, 23 SCRA 998 [1968]; Canonizado v.
Aguirre, supra.
560
560 SUPREME COURT REPORTS ANNOTATED
Santos vs. Court of Appeals
Second, petitioner himself must have realized that Section 11 does
not allow the tacking in of his previous government service. If he were
convinced that it does he could have instead applied
for retirement benefits, since by adding his years of service in the
MMA to his previous years of service in the Government he could have
retired under the third paragraph of Section 11, which pertinently
reads:
Provided, That, if qualified for retirement under existing retirement
laws, said employee may opt to receive the benefits thereunder.
Third, after the approval of his optional retirement on 1 April 1992,
petitioner was fully paid of his retirement gratuity under R.A. No. 910,
as amended; and five years thereafter he has been receiving a
monthly pension.
The petitioner cannot take refuge under the second paragraph of
Section 8 of Article IX-B of the Constitution, which provides:
Pensions or gratuities shall not be considered as additional, double,
or indirect compensation.
This provision simply means that a retiree receiving pension or gratuity
can continue to receive such pension or gratuity even if he accepts
another government position to which another compensation is
attached.6
Indeed, the retirement benefits which petitioner had received or
has been receiving under R.A. No. 910, as amended, do not constitute
double compensation. He could continue receiving the same even if
after his retirement he had been receiving salary from the defunct
MMA as Director III thereof. This is but just because said retirement

benefits are rewards for his services as MeTC Judge, while his salary
was his compensation for his services as Director III of the MMA.
However, to credit his years of service in the Judiciary in the
computation of his separation pay under R.A. No. 7924
notwithstanding the fact that he had received or has been receiving
the
_______________
6
II JOAQUIN BERNAS, THE CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES (A Commentary) 341 (1988 ed.).
561
VOL. 345, NOVEMBER 22, 2000 561
Santos vs. Court of Appeals
retirement benefits under R.A. No. 910, as amended, would be to
countenance double compensation for exactly the same services, i.e.,
his services as MeTC Judge. Such would run counter to the policy of
this Court against double compensation for exactly the same
services.7 More important, it would be in violation of the first paragraph
of Section 8 of Article K-B of the Constitution, which proscribes
additional, double, or indirect compensation. Said provision reads:
No elective or appointive public officer or employee shall receive
additional, double, or indirect compensation, unless specifically
authorized by law. . . .
Section 11 of R.A. No. 7924 does not specifically authorize payment
of additional compensation for years of government service outside of
the MMA.
WHEREFORE, finding no reversible error in the judgment
appealed from, the petition in this case is DENIED for want of merit,
and the decision of 19 August 1999 of the Court of Appeals in CAG.R.
SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 71562. October 28, 1991.*
JOSE C. LAUREL V, in his official capacity as Provincial Governor of
Batangas, petitioner, vs. CIVIL SERVICE COMMISSION and
LORENZO SANGALANG, respondents.
ADMELEC Cases
341
Civil Law; Estoppel; Per Article 1431 of the Civil Code, through
estoppel an admission or representation is rendered conclusive upon
the person making it and cannot be denied or disproved as against the
person relying thereon.—The sole ground invoked by him for
exemption from the rule on nepotism is, as above indicated: the rule
does not apply to designation—only to appointment. He changed his
mind only after the public respondent, in its Resolution No. 83-358,
ruled that the “prohibitive mantle on nepotism would include
designation, because what cannot be done directly cannot be done
indirectly” and, more specifically, only when he filed his motion to
reconsider said resolution. Strictly speaking, estoppel has bound
petitioner to his prior admission. Per Article 1431 of the Civil Code,
through estoppel an admission or representation is rendered
conclusive upon the person making it and cannot be denied or
disproved as against the person relying thereon.
Constitutional Law; Civil Service Law; Appointments; The
position of Provincial Administrator is embraced within the Career
Service under Section 5 of P.D. No. 807.—As correctly maintained by
the public respondent and the Solicitor General, the position of
Provincial Administrator is embraced within the Career Service under
Section 5 of P.D. No. 807 as evidenced by the qualifications
prescribed for it in the Manual of Position Descriptions.
_______________
*THIRD DIVISION.
196
196 SUPREME COURT REPORTS
ANNOTATED
Laurel V vs. Civil Service Commission
Same; Same; Same; Same; Definition of its functions and its
distinguishing characteristics as laid down in the Manual render
indisputable the above conclusion that the subject position is in the
career service; Characteristics of career service.—It may be added
that the definition of its functions and its distinguishing characteristics
as laid down in the Manual, thus: render indisputable the above
conclusion that the subject position is in the career service which, per
Section 5 of P.D. No. 807, is characterized by (a) entrance based on
merit and fitness to be determined as far as practicable by competitive

examinations, or based on highly technical qualifications, (b)
opportunity for advancement to higher career positions, and (c)
security of tenure. More specifically, it is an open career position, for
appointment to it requires prior qualification in an appropriate
examination.
Same; Same; Same; Same; Section 24 (f) of R.A. 2260 provides
that no person appointed to a position in the non-competitive service
(now non-career) shall perform the duties properly belonging to any
position in the competitive service (now career service).—We likewise
agree with the public respondent that there is one further obstacle to
the occupation by Benjamin Laurel of the position of Provincial
Administrator. At the time he was designated as Acting Provincial
Administrator, he was holding the position of Senior Executive
Assistant in the Office of the Governor, a primarily confidential
position. He was thereafter promoted as Civil Security Officer, also a
primarily confidential position. Both positions belong to the non-career
service under Section 6 of P.D. No. 807. As correctly ruled by the
public respondent, petitioner cannot legally and validly designate
Benjamin Laurel as Acting Provincial Administrator, a career position,
because Section 24 (f) of R.A. 2260 provides that no person appointed
to a position in the noncompetitive service (now non-career) shall
perform the duties properly belonging to any position in the
competitive service (now career service).
Same; Same; Same; Nepotism; Petitioner could not legally and
validly appoint his brother Benjamin Laurel to said position because of
the prohibition on nepotism under Section 49 of P.D. No. 807.—Peti-
tioner could not legally and validly appoint his brother Benjamin Laurel
to said position because of the prohibition on nepotism under Section
49 of P.D. No. 807. They are related within the third degree of
consanguinity and the case does not fall within any of the exemptions
provided therein.
Same; Same; Same; Same; Same; Petitioner’s specious and
tenuous distinction between appointment and designation is nothing
more
197
VOL. 203, OCTOBER 28, 1991 197
Laurel V vs. Civil Service Commission
than either a ploy ingeniously conceived to circumvent the rigid
rule on nepotism or a last-ditch maneuver to cushion the impact of its
violation; Rule admits of no distinction between appointment and
ADMELEC Cases
342
designation.—Petitioner’s specious and tenuous distinction between
appointment and designation is nothing more than either a ploy
ingeniously conceived to circumvent the rigid rule on nepotism or a
last-ditch maneuver to cushion the impact of its violation. The rule
admits of no distinction between appointment and
designation. Designation is also defined as “an appointment or
assignment to a particular office”; and “to designate” means “to
indicate, select, appoint or set apart for a purpose or duty.”
PETITION to review the resolution of the Civil Service Commission.
The facts are stated in the resolution of the Court.
Provincial Attorney for petitioner.
RESOLUTION
DAVIDE, JR., J.:
Is the position of Provincial Administrator primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a
position file a verified complaint with the Civil Service Commission to
denounce a violation by an appointing authority of the Civil Service
Law and rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the Province of Batan-gas,
upon assuming office on 3 March 1980, appointed his brother,
Benjamin Laurel, as Senior Executive Assistant in the Office of the
Governor, a non-career service position which belongs to the personal
and confidential staff of an elective official.1
On 31 December 1980, the position of Provincial Administrator of
Batangas became vacant due to the resignation of Mr. Fe-
_______________
1Section 6 of P.D. No. 807.
198
198 SUPREME COURT REPORTS ANNOTATED
Laurel V vs. Civil Service Commission

limon C. Salcedo III. Allegedly for lack of qualified applicants and so
as not to prejudice the operation of the Provincial Government,
petitioner designated his brother, Benjamin Laurel, as Acting
Provincial Administrator effective 2 January 1981 and to continue until
the appointment of a regular Provincial Administrator, unless the
designation is earlier revoked.2
On 28 April 1981, he issued Benjamin Laurel a promotional
appointment as Civil Security Officer, a position which the Civil Service
Commission classifies as “primarily confidential” pursuant to P.D. No.
868.3
On 10 January 1983, private respondent Sangalang wrote a letter
to the Civil Service Commission4 to bring to its attention the
“appointment” of Benjamin Laurel as Provincial Administrator of
Batangas by the Governor, his brother. He alleges therein that: (1) the
position in question is a career position, (2) the appointment violates
civil service rules, and (3) since the Governor authorized said
appointee to receive representation allowance, he violated the Anti-
Graft and Corrupt Practices Act. He then asks that the matter be
investigated.
In his letter to the Chairman of the Civil Service Commission dated
18 January 1983,5 Jose A. Oliveros, Acting Provincial Attorney of
Batangas, for and in behalf of herein petitioner, asserts that the latter
did not violate the provision prohibiting nepotism under Section 49 of
P.D. No. 807 because, with respect to the positions of Senior
Executive Assistant and Civil Security Officer, both are primarily
confidential in nature; and, with respect to the position of Provincial
Administrator:
“x x x what is prohibited under Section 49 of P.D. 807 is
the appointment of a relative to a career Civil Service position, like that
of a provincial administrator. Governor Laurel did not appoint his
brother, Benjamin, as Provincial Administrator. He merely designated
him ‘Acting Provincial Administrator.’ And ‘appointment’ and
‘designation’ are two entirely different things. Appointment implies
original establishment of official relation. Designation is the imposition
of new
_______________
2 Annex “C” of Petition.
3 Annexes “B” and “B-1” of Petition.
ADMELEC Cases
343
4Loc cit.
5Annex “D” of Petition.
199
VOL. 203, OCTOBER 28, 1991 199
Laurel V vs. Civil Service Commission
or additional duties upon an officer to be performed by him in a special
manner. It presupposes a previous appointment of the officer in whom
the new or additional duties are imposed.
Appointment is generally permanent, hence the officer appointed
cannot be removed except for cause; designation is merely temporary
and the new or additional powers may be withdrawn with or without
cause.
Benjamin C. Laurel had already been appointed Senior Executive
Assistant in the Office of the Governor when Governor Laurel
designated him Acting Provincial Administrator.”
It is further alleged that there was no violation of the Anti-Graft and
Corrupt Practices Act because:
“As Acting Provincial Administrator, Benjamin is entitled under Office
of the President Memorandum-Circular No. 437, series of 1971, to a
monthly representation allowance of P350.00. And said allowance is
‘strictly on reimbursement basis.’”6
On 12 July 1983, the Civil Service Commission handed down the
aforesaid Resolution No. 83-3587 which, inter alia, revokes the
designation of Benjamin as Acting Provincial Administrator on the
ground that it is “nepotic”, or in violation of Section 49, P.D. No. 807
on nepotism. The relevant portion of said section reads as follows:
“SECTION 49. Nepotism.—a) All appointments in the national,
provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled
corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or of
the persons exercising immediate supervision over him, are hereby
prohibited.
As used in this Section, the word ‘relative’ and members of the
family referred to are those related within the third degree either of
consanguinity or affinity.
(b) The following are exempted from the operation of the rules on
nepotism: (1) persons employed in a confidential capacity, (2)
teachers, (3) physicians, and (4) members of the Armed Forces of the

_______________
6Annex “D” of Petition, 3.
7Annex “B” of Petition.
200
200 SUPREME COURT REPORTS ANNOTATED
Laurel V vs. Civil Service Commission
Philippines: Provided, however, That in each particular instance full
report of such appointment shall be made to the Commission.”
xxx
Although what was extended to Benjamin was merely a designation
and not an appointment, the Civil Service Commission ruled that “the
prohibitive mantle on nepotism would include designation, because
what cannot be done directly cannot be done indirectly.” It further held
that Section 24(f) of Republic Act No. 2260 provides that no person
appointed to a position in the non-competitive service (now non-
career) shall perform the duties properly belonging to any position in
the competitive service (now career service). The petitioner, therefore,
could not legally and validly designate Benjamin, who successively
occupied the non-career positions of Senior Executive Assistant and
Civil Security Officer, to the position of Provincial Administrator, a
career position under Section 4 of R.A. No. 5185.
Petitioner’s motion to reconsider said Resolution,8 based on the
claim that the questioned position is primarily confidential in nature,
having been denied in Resolution No. 85-271 of 3 July 19859 wherein
the respondent Civil Service Commission maintains that said position
is not primarily-confidential in nature since it neither belongs to the
personal staff of the Governor nor are the duties thereof confidential
in nature considering that its principal functions involve general
planning, directive and control of administrative and personnel service
in the Provincial Office, petitioner filed the instant petition invoking the
following grounds:
1. “A.Respondent Commission has committed a (sic) grave
abuse of discretion amounting to lack or excess of
jurisdiction when it held that the position of provincial
administrator is not a primarily-confidential position because
said ruling is diametrically opposed to, and in utter disregard
of rulings of this Honorable Court as to what is a primarily-
ADMELEC Cases
344
confidential position under Article XII-B, Sec. 2 of the
Constitution.
2. B.Respondent Commission gravely abused its discretion and
_______________
8Annex “E” of Petition.
9Annex “A” of Petition.
201
VOL. 203, OCTOBER 28, 1991 201
Laurel V vs. Civil Service Commission
1. acted without jurisdiction when it arrogated unto itself the
power to review a designation made by petitioner by virtue
of the powers in him vested under Section 2077 of the
Revised Administrative Code.
2. C.Respondent Commission exceeded its jurisdiction when it
gave due course to the complaint of private respondent and
thereafter promulgated the resolutions under question in this
petition.
3. D.There is no appeal, nor any other plain, speedy and
adequate remedy in the ordinary course of law available to
petitioner to have the questioned resolutions of respondent
Commission reviewed and thereafter nullified, revoked and
set aside, other than this recourse to a petition for certiorari
under Rule 65 of the Rules of Court.
In the Comment filed for the respondent Commission on 7 October
1985, the Solicitor General sustains the challenged resolutions and
contends that the position of Provincial Administrator is intended to be
part of the career system and since it requires a specific civil service
eligibility, it belongs to the career service under Section 5(1) of P.D.
No. 807 and has not been declared primarily confidential by the
President pursuant to Section 1 of P.D. No. 868; that the Commission
has the authority to review, disapprove, and set aside even
mere designations, as distinguished from appointments, for Section 2
of P.D. No. 807 vests in it the power to enforce the laws and rules
governing the selection, utilization, training and discipline of civil
servants; and that it can act on Sangalang’s complaint pursuant to

Section 37 of P.D. No. 807, for what he filed was not an action for quo
warranto, but an administrative complaint to correct a violation of the
Civil Service law and rules which involved public service and the public
interest. Per Benitez vs. Paredes,10 reiterated in Tañada vs.
Tuvera,11 where the question is one of public right, the people are
regarded as the real parties in interest, and the relator at whose
instigation the proceedings are instituted need only show that he is a
citizen and as such interested in the execution of the laws.
On 11 December 1985, petitioner filed his Reply to the Comment
insisting therein that the duties, functions and responsibilities of the
Provincial Administrator render said position
______________
1052 Phil. 1.
11136 SCRA 27, G.R. No. 63915, 24 April 1985.
202
202 SUPREME COURT REPORTS ANNOTATED
Laurel V vs. Civil Service Commission
primarily confidential in nature, the requirement of a specific service
eligibility and absence of a presidential declaration that the position is
primarily confidential do not place the said position in the career
service; the position of Provincial Administrator is in the non-career
service; and that the Benitez vs. Paredes and Tañada vs.
Tuvera cases are not applicable in this case. Petitioner insists that the
controlling doctrines are those enunciated in Salazar vs.
Mathay,12 where this Court held that there are two instances when a
position may be considered primarily confidential, to wit: (a) when the
President, upon recommendation of the Commissioner of Civil Service
(now Civil Service Commission) has declared a position to be primarily
confidential; and (2) in the absence of such declaration, when by the
very nature of the functions of the office, there exists close intimacy
between the appointee and the appointing power which insures
freedom of intercourse without embarrassment or freedom from
misgiving or betrayals of personal trust or confidential matters of state
and Piñero vs. Hechanova,13 where this Court ruled that at least, since
the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the
nature of the position that finally determines whether a position is
primarily confidential, policy determining, or highly technical and that
ADMELEC Cases
345
execu-tive pronouncements can be no more than initial determinations
that are not conclusive in case of conflict, which must be so, or else “it
would then lie within the discretion of the Chief Executive to deny to
any officer, by executive fiat, the protection of section 4, Article XII of
the Constitution.”
In his Rejoinder filed on 16 December 1986, the Solicitor General
states that the rulings in the Salazar and Piñero cases have been
modified and superseded by Section 6 of P.D. No. 807, and by the
third paragraph of Section 1 of P.D. No. 868, which provides:
“Any provision of law authorizing any official, other than the President,
to declare positions policy-determining, primarily confidential or highly
technical which are exempt from the Civil Service Law and rules is
hereby repealed, and only the President may declare
______________
1273 SCRA 275.
1318 SCRA 417.
203
VOL. 203, OCTOBER 28, 1991 203
Laurel V vs. Civil Service Commission
a position-determining, highly technical or primarily confidential, upon
recommendation of the Civil Service Commission, the Budget
Commission and the Presidential Reorganization Commission.”
The Solicitor General further asseverates that the Commission’s
giving due course to the complaint of Sangalang is manifestly valid
and legal for it is also in accordance with the declared policies of the
State provided for in Section 2 of P.D. No. 807.
In the Resolution of 9 February 1987, this Court gave due course
to the petition and required the parties to submit simultaneous
memoranda. We shall take up the issues in the order they are
presented above.
1. The first issue becomes important because if the questioned
position is primarily confidential, Section 49 of P.D. No. 807 on
nepotism would not apply in the instant case. Interestingly, however,
petitioner did not raise it in the letter to the Chairman of the Civil
Service Commission dated 18 January 1983.14
On the contrary, he submits, or otherwise admits therein, that said
position is not primarily confidential for it belongs to the career

service. He even emphasized this fact with an air of absolute certainty,
thus:
“At this juncture, may I emphasize that what is prohibited under Sec.
49 of P.D. 807 is the appointment of a relative to a career Civil Service
position, LIKE THAT OF PROVINCIAL ADMINISTRATOR x x x.”
(capitalization supplied for emphasis).
The sole ground invoked by him for exemption from the rule on
nepotism is, as above indicated: the rule does not apply
to designation—only to appointment. He changed his mind only after
the public respondent, in its Resolution No. 83-358, ruled that the
“prohibitive mantle on nepotism would include designation, because
what cannot be done directly cannot be done indirectly” and, more
specifically, only when he filed his motion to reconsider said resolution.
Strictly speaking, estoppel has
______________
14Annex “D” of Petition.
204
204 SUPREME COURT REPORTS ANNOTATED
Laurel V vs. Civil Service Commission
bound petitioner to his prior admission. Per Article 1431 of the Civil
Code, through estoppel an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon.15
But even if estoppel were not to operate against him, or regardless
thereof, his claim that the position of Provincial Administrator is
primarily confidential, is without merit.
As correctly maintained by the public respondent and the Solicitor
General, the position of Provincial Administrator is embraced within
the Career Service under Section 5 of P.D. No. 807 as evidenced by
the qualifications prescribed for it in the Manual of Position
Descriptions,16 to wit:
“Education: Bachelor’s degree preferably in Law/Public or Busi
ness Administration.
Experience: Six years of progressively responsible experience
in planning, directing and administration of provincial
government operations. Experience in private agencies
ADMELEC Cases
346
considered are those that have been more or less familiar
level of administrative proficiency.
Eligibility: RA 1080 (BAR)/Personnel Management Officer/Ca
reer Service (Professional)/First Grade/Supervisor.”
It may be added that the definition of its functions and its distinguishing
characteristics as laid down in the Manual, thus:
xxx
“2. DEFINITION:
Under the direction of the Provincial Governor, responsible for
the overall coordination of the activities of the various national and
local agencies in the province; and general planning, direction and
control of the personnel functions and the administrative services of
the Governor’s Office.
______________
15 See Llacer vs. Muñoz, et al., 12 Phil. 328.
16 Annex “G” of Petition; Rollo, 55. This was prepared in 1976 and
revised in 1977 under a Joint Program of the Civil Service
Commission, the Provincial Management Project and the USAID
Philippine Mission.
205
VOL. 203, OCTOBER 28, 1991 205
Laurel V vs. Civil Service Commission
3. DISTINGUISHING CHARACTERISTICS:
This is the class for top professional level management,
administrative and organizational work in the operation of provincial
government with highly complex, involved relationship with
considerable delegation of authority and responsibility and a high
degree of public contact.”
render indisputable the above conclusion that the subject position is
in the career service which, per Section 5 of P.D. No. 807, is
characterized by (a) entrance based on merit and fitness to be
determined as far as practicable by competitive examinations, or
based on highly technical qualifications, (b) opportunity for
advancement to higher career positions, and (c) security of tenure.
More specifically, it is an open career position, for appointment to it
requires prior qualification in an appropriate examination. 17 It falls

within the second major level of positions in the career service, per
Section 7 of P.D. No. 807, which reads:
“SECTION 7. Classes of Positions in the Career Service.—(a)
Classes of positions in the career service appointment to which
requires examinations shall be grouped into three major levels as
follows:
xxx
(2) The second level shall include professional, technical, and
scientific positions which involve professional, technical, or scientific
work in a non-supervisory or supervisory capacity requiring at least
four years of college work up to Division Chief level; x x x.”
In Piñero, et al. vs. Hechanova, et al.,18 this Court had the occasion to
rule that:
“It is plain that, at least since the enactment of the 1959 Civil Service
Act (R.A. 2260), it is the nature of the position which finally determines
whether a position is primarily confidential, policy determining or highly
technical. Executive pronouncements can be no more than initial
determinations that are not conclusive in case of conflict.
_______________
17No. (1) Second paragraph, Section 5, P.D. No. 807.
18supra.
206
206 SUPREME COURT REPORTS ANNOTATED
Laurel V vs. Civil Service Commission
And it must be so or else it would then lie within the discretion of the
Chief Executive to deny to any officer, by executive fiat, the protection
of Section 4, Article XII19 of the Constitution.”
This rule stands despite the third paragraph of Section 1 of P.D. No.
868 which pertinently reads:
“x x x and only the President may declare a position policydetermining,
highly technical or primarily confidential, upon recommendation of the
Civil Service Commission, the Budget Commission and the
Presidential Reorganization Commission.”
for the reason that the latter may be considered merely as the initial
determination of the Executive, which in no case forecloses judicial
review. A rule that exclusively vests upon the Executive the power to
declare what position may be considered policy-determining, primarily
ADMELEC Cases
347
confidential, or highly technical would subvert the provision on the civil
service under the 1973 Constitution which was then in force at the time
the decree was promulgated. Specifically, Section 2 of Article XII of
said Constitution makes reference to positions which are policy-
determining, primarily confidential, or highly technical in
nature,” thereby leaving no room for doubt that, indeed, it is
the nature of the position which finally determines whether it falls
within the above mentioned classification. The 1987 Constitution
retains this rule when in Section 2 of Article IX-C, it clearly makes
reference to “positions which are policy-determining, primarily
confidential, or highly technical.”
In the light of the foregoing, We cannot accept the view of the
Solicitor General in his Rejoinder20 that Salazar vs.
Mathay21 and Piñero, et al. vs. Hechanova, et al.,22 have already been
modified by Section 6 of P.D. No. 807 and the third paragraph of
_____________
19 This is Section 4 of Article XII of the 1935 Constitution which
provides:
“No officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law.”
20 Rollo, 101.
21 supra.
22 supra.
207
VOL. 203, OCTOBER 28, 1991 207
Laurel V vs. Civil Service Commission
Section 1 of P.D. No. 868.
Not being primarily confidential, appointment thereto must, inter
alia, be subject to the rule on nepotism.
We likewise agree with the public respondent that there is one
further obstacle to the occupation by Benjamin Laurel of the position
of Provincial Administrator. At the time he was designated as Acting
Provincial Administrator, he was holding the position of Senior
Executive Assistant in the Office of the Governor, a primarily
confidential position. He was thereafter promoted as Civil Security
Officer, also a primarily confidential position. Both positions belong to
the non-career service under Section 6 of P.D. No. 807. As correctly

ruled by the public respondent, petitioner cannot legally and validly
designate Benjamin Laurel as Acting Provincial Administrator, a
career position, because Section 24 (f) of R.A. 2260 provides that no
person appointed to a position in the non-competitive service (now
non-career) shall perform the duties properly belonging to any position
in the competitive service (now career service).
2. Being embraced in the career service, the position of Provincial
Administrator must, as mandated by Section 25 of P.D. No. 807, be
filled up by permanent or temporary appointment. The first shall be
issued to a person who meets all the requirements for the position to
which he is appointed, including the appropriate eligibility prescribed.
In the absence of appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary appointment shall be
issued to a person who meets all the requirements for the position
except the appropriate civil service eligibility, provided, however, that
such temporary appointment shall not exceed twelve months , but the
appointee may be replaced sooner if a qualified civil service eligible
becomes available.23
Petitioner could not legally and validly appoint his brother
Benjamin Laurel to said position because of the prohibition on
nepotism under Section 49 of P.D. No. 807. They are related within
the third degree of consanguinity and the case does not fall within any
of the exemptions provided therein.
Petitioner, however, contends that since what he extended to
_______________
23Section 25, P.D. No. 807.
208
208 SUPREME COURT REPORTS ANNOTATED
Laurel V vs. Civil Service Commission
his brother is not an appointment, but a DESIGNATION, he is not
covered by the prohibition. Public respondent disagrees, for:
“By legal contemplation, the prohibitive mantle on nepotism would
include designation, because what cannot be done directly cannot be
done indirectly.”24
We cannot accept petitioner’s view. His specious and tenuous
distinction between appointment and designation is nothing more than
either a ploy ingeniously conceived to circumvent the rigid rule on
ADMELEC Cases
348
nepotism or a last-ditch maneuver to cushion the impact of its
violation. The rule admits of no distinction between appointment and
designation. Designation is also defined as “an appointment or
assignment to a particular office”; and “to designate” means “to
indicate, select, appoint or set apart for a purpose or duty.”25
In Borromeo vs. Mariano,26 this Court said:
“x x x All the authorities unite in saying that the term ‘appoint’ is well-
known in law and whether regarded in its legal or in its ordinary
acceptation, is applied to the nomination or designation of an
individual x x x.” (emphasis supplied).
In Binamira vs. Garrucho,27 this Court, per Mr. Justice Isagani A. Cruz,
stated:
“Designation may also be loosely defined as an appointment because
it likewise involves the naming of a particular person to a specified
public office. That is the common understanding of the term. However,
where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity
and may be replaced at will by the appointing authority. In this sense,
the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person
named.”
______________
24 Annex “B” of Petition.
25 Black’s Law Dictionary, Fifth ed., 402.
26 41 Phil. 322, 326-327.
27 188 SCRA 154, 159.
209
VOL. 203, OCTOBER 28, 1991 209
Laurel V vs. Civil Service Commission
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest
that designation should be differentiated from appointment. Reading
this section with Section 25 of said decree, career service positions
may be filled up only by appointment, either permanent or temporary;
hence a designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it precisely
accomplishes the same purpose. Moreover, if a designation is not to
be deemed included in the term appointment under Section 49 of P.D.

No. 807, then the prohibition on nepotism would be meaningless and
toothless. Any appointing authority may circumvent it by merely
designating, and not appointing, a relative within the prohibited degree
to a vacant position in the career service. Indeed, as correctly stated
by public respondent, “what cannot be done directly cannot be done
indirectly.”28
3. As regards the last issue, We rule that the letter-complaint of
Sangalang was validly given due course by public respondent.
Undoubtedly, as shown above, there was a violation of law committed
by petitioner in designating his brother as Acting Provincial
Administrator. Any citizen of the Philippines may bring that matter to
the attention of the Civil Service Commission for appropriate action
conformably with its role as the central personnel agency to set
standards and to enforce the laws and rules governing the selection,
utilization, training and discipline of civil servants,29 with the power and
function to administer and enforce the constitutional and statutory
provisions on the merit system.30 Moreover, Section 37 of the decree
expressly allows a private citizen to directly file with the Civil Service
Commission a complaint against a government official or employee,
in which case it may hear and decide the case or may deputize any
department or agency or official or group of officials to conduct an
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. This provision gives teeth to the constitutional
exhortation that
_______________
28 Annex “D” of Petition.
29 Section 2 (Declaration of Policy), P.D. No. 807.
30 Section 9(a), P.D. No. 807.
210
210 SUPREME COURT REPORTS ANNOTATED
Sunshine Finance and Investment Corp. vs. IAC
a public office is a public trust and public officers and employees must
at all times be, inter alia, accountable to the people.31 An ordinary
citizen who brings to the attention of the appropriate office any act or
conduct of a government official or employee which betrays the public
interest deserves nothing less than the praises, support and
ADMELEC Cases
349
encouragement of society. The vigilance of the citizenry is vital in a
democracy.
WHEREFORE, this petition is DENIED for lack of merit, and the
challenged Resolutions of the Civil Service Commission are
AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 135805. April 29, 1999.*
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O.
DACOYCOY, respondent.
Civil Service Law; Civil Service Commission; Nepotism
Defined.—Under the definition of nepotism, one is guilty of nepotism
if an appointment is issued in favor of a relative within the third civil
degree of consanguinity or affinity of any of the following: a) appointing
authority; b) recommending authority; c) chief of the bureau or office;
and d) person exercising immediate supervision over the appointee.
____________
*EN BANC.
426
426 SUPREME COURT REPORTS
ANNOTATED
Civil Service Commission vs. Dacoycoy
Same; Same; Same; To constitute a violation of the law, it
suffices that an appointment is extended or issued in favor of a relative
within the third civil degree of consanguinity or affinity of the chief of
the bureau or office, or the person exercising immediate supervision
over the appointee.—Clearly, there are four situations covered. In the
last two mentioned situations, it is immaterial who the appointing or
recommending authority is. To constitute a violation of the law, it
suffices that an appointment is extended or issued in favor of a relative
within the third civil degree of consanguinity or affinity of the chief of
the bureau or office, or the person exercising immediate supervision
over the appointee.
Same; Same; Same; The Civil Service Commission as an
aggrieved party may appeal the decision of the Court of Appeals to

the Supreme Court.—The Court of Appeals reversed the decision of
the Civil Service Commission and held respondent not guilty of
nepotism. Who now may appeal the decision of the Court of Appeals
to the Supreme Court? Certainly not the respondent, who was
declared not guilty of the charge. Nor the complainant George P.
Suan, who was merely a witness for the government. Consequently,
the Civil Service Commission has become the party adversely
affected by such ruling, which seriously prejudices the civil service
system. Hence, as an aggrieved party, it may appeal the decision of
the Court of Appeals to the Supreme Court.
Same; Same; Same; The Civil Service Law may include the
review of decisions exonerating officers or employees from
administrative charges.—By this ruling, we now expressly abandon
and overrule extant jurisprudence that “the phrase ‘party adversely
affected by the decision’ refers to the government employee against
whom the administrative case is filed for the purpose of disciplinary
action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office” and not included are
“cases where the penalty imposed is suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty days salary”
or “when the respondent is exonerated of the charges, there is no
occasion for appeal.” In other words, we overrule prior decisions
holding that the Civil Service Law “does not contemplate a review of
decisions exonerating officers or employees from administrative
charges” enunciated in Paredes v. Civil Service Commission; Mendez
v. Civil Service Commission; Magpale v. Civil Service Commission;
Navarro v. Civil Service Commission and Export Processing Zone
427
VOL. 306, APRIL 29, 1999 427
Civil Service Commission vs. Dacoycoy
Authority and more recently Del Castillo v. Civil Service
Commission.
MELO, J., Dissenting and Concurring Opinion:
Administrative Law; Appeals; From the time of its passage on
October 6, 1975 until the present, appeals by the government in cases
of exoneration in an administrative case had been disallowed.—It
should also be noted that Presidential Decree No. 807 has not
ADMELEC Cases
350
undergone any pertinent amendment since the Court applied the law
in Paredes. From the time of its passage on October 6, 1975 until the
present, appeals by the government in cases of exoneration in an
administrative case had been disallowed. It was not only the result of
this Court’s “interpretation” of the law in Paredes that made it so. It
was rather the real and definite intention of the Philippine Civil Service
Law. If it was the intention of Legislature to allow appeals as the
majority holds or as Mr. Justice Puno suggests, then, an amendment
to that effect could have been introduced and passed. Then President
Marcos who had full legislative power could have easily amended the
said law. The records show that he did not. The fact that no such
amendment has been introduced even after the reinstitution of a
legislative body, the Batasang Pambansa, and later in 1987, the
Congress of the Philippines, signifies that, at the very least our
interpretation in Paredes and the other subsequent cases sits well
with Congress.
Same; Same; Constitutional Law; The prerogative to determine
whether the practice of disallowing appeals in cases of exoneration
should belong to Legislature.—It is my submission that the prerogative
to now determine whether this practice of disallowing appeals in cases
of exoneration should still continue or not, exclusively belongs to
Legislature. The Court cannot and should not arrogate this
policymaking power of Congress unto itself, not even in the guise of
the exercise of its expanded power of judicial review under the 1987
Constitution. Only Congress has authority to remedy inadequacies in
the wisdom of a law, should it find any, especially when the definite
intention of the existing law was to disallow the State to appeal from
judgments of exoneration. Any attempt by the Court to transgress this
most basic principle in the separation of powers between these two
branches of government would, to my mind, result in the abhorrent act
of judicial legislation, if not outright disregard of Article 7 of the Civil
Code which states that: ART. 7. Laws are re-
428
428 SUPREME COURT REPORTS
ANNOTATED
Civil Service Commission vs. Dacoycoy
pealed only by subsequent ones, and their violations or
nonobservance shall not be excused by disuse, or custom or practice
to the contrary.

Same; Same; Remedial Law; A special law such as Presidential
Decree No. 807 takes precedence over general rules of procedure
such as Rule 45 of the Rules of Court. No appeal may, therefore, be
taken under Rule 45.—Effective June 1, 1995, Revised Administrative
Circular No. 1-95 ordained that, appeals from awards, judgments or
final orders or resolutions of or authorized by any quasi-judicial agency
(which includes the Civil Service Commission) in the exercise of its
quasi-judicial functions shall be taken by filing a verified petition for
review with the Court of Appeals. Although in general, appeal by
certiorari from a judgment or final order or resolution of the Court of
Appeals may be filed via a verified petition for review on certiorari with
this Court (where pure questions of law, distinctly set forth therein,
may be duly raised), an appeal involving a judgment or final order of
the Court of Appeals exonerating a government employee in an
administrative case, in particular, falls within the ambit of the
provisions of Section 39, paragraph (a) of Presidential Decree No.
807. It is elementary that a special law such as Presidential Decree
No. 807 takes precedence over general rules of procedure such as
Rule 45 of the Rules of Court. No appeal may, therefore, be taken
under Rule 45.
Same; Same; Any ambiguity, should there be any, must be
resolved in favor of the respondent in the administrative case. The
term “party adversely affected” should not be construed as to include
the State in administrative charges involving nepotism.—It is
recognized in our jurisdiction that an administrative case which could
result in the revocation of license, or similar sanctions like dismissal
from office, constitutes a proceeding which partakes of a criminal
nature (cf. Pascual vs. Board of Medical Examiners, 28 SCRA 345
[1969]). Being such, provisions of law pertaining thereto must perforce
be construed strictly against the State, just as penal laws are strictly
construed strictly against the State (People vs. Manantan, 5 SCRA
684 [1962]). Any ambiguity, should there be any, must be resolved in
favor of the respondent in the administrative case. The term “party
adversely affected” should not be construed as to include the State in
administrative charges involving nepotism.
429
VOL. 306, APRIL 29, 1999 429
Civil Service Commission vs. Dacoycoy
ROMERO, J., Dissenting Opinion:
ADMELEC Cases
351
Courts; Supreme Court; Pursuant to its quasi-judicial function, it
acts as an impartial tribunal in the resolution of the cases brought
before it.—It is thus clear that the Civil Service Commission has been
constituted as a disciplining authority. Such has always been the intent
of the 1987 Constitution, the Revised Administrative Code of 1987 on
the Civil Service Commission, as well as the Civil Service Law. In fact,
the Proposed Civil Service Code of the Philippines seeks to provide
that the Commission shall have concurrent original disciplinary
jurisdiction over officials and employees, including Presidential
appointees of the departments, agencies, bureaus, provinces, cities,
municipalities, state colleges and universities, and instrumentalities,
including government-owned or controlled corporations with original
charters. Pursuant to its quasi-judicial function, it acts as an impartial
tribunal in the resolution of the cases brought before it.
Civil Service Law; Civil Service Commission; The Civil Service
Commission is not the “aggrieved party” contemplated under
Presidential Decree No. 807 or the Civil Service Law.—
The respondent, on the other hand, is any subordinate officer or
employee. Nowhere can be found, expressly or impliedly, in Section
34 of Rule XIV of Omnibus Rules Implementing Book V of E.O. No.
292, the Commission as one of the parties, either as complainant or
respondent in an administrative case. Logically and by necessary
implication, it cannot be considered either a complainant or a
respondent. Expressio unius est exclusio alterius. The express
mention of one person, thing or consequence implies the exclusion of
all others. Based on the foregoing, there is no other conclusion but
that the Civil Service Commission is not a party to an administrative
proceeding brought before it. As provided by Supreme Court
Administrative Circular 1-95, decisions, orders or rulings of the
Commission may be brought to the Supreme Court, now to the Court
of Appeals, on certiorari by the aggrieved party. By inference, an
aggrieved party is either the one who initiated the complaint before the
Commission or the respondent, the person subject of the complaint.
In fact, the question as to who is an “aggrieved party” has long been
settled in a litany of cases. An aggrieved party in an administrative
case is the government employee against whom an administrative
complaint is filed. The Civil Service Commission is definitely not a
government employee. Neither is it an agency against whom an
administrative charge is
430

430 SUPREME COURT REPORTS
ANNOTATED
Civil Service Commission vs. Dacoycoy
filed. While it may be argued that, in a sense, the government is
an “aggrieved party” in administrative proceedings before the
Commission, it nevertheless is not the “aggrieved party” contemplated
under P.D. No. 807 or the Civil Service Law.
Same; Same; By analogy, the Commission in the performance
of its quasi-judicial functions is just like a judge who should detach
himself from cases where his decision is appealed to a higher court
for review.—Having established that the Civil Service Commission is
not a party, much less an aggrieved party, then indubitably, it has no
legal personality to elevate the case to the appellate authority. The
Commission, therefore, has no legal standing to file the instant
petition. While admittedly, the Civil Service Commission is considered
a nominal party when its decision is brought before the Court of
Appeals, such is only a procedural formality. As with appellate
processes, a nominal party is not the aggrieved party. Its inclusion as
a party is based primarily on the fact that the decision, order or ruling
it issued is being contested or assailed and secondarily, for purposes
of enforcement. By analogy, the Commission in the performance of its
quasi-judicial functions is just like a judge who should “detach himself
from cases where his decision is appealed to a higher court for review.
The raison d’etre for such doctrine is that a judge is not an active
combatant in such proceeding and must leave the opposing parties to
contend their individual positions and for the appellate court to decide
the issues without his active participation. By filing this case, petitioner
in a way ceased to be judicial and has become adversarial instead.”
PUNO, J., Concurring Opinion:
Civil Service Law; Nepotism; A taxpayer has the standing to
bring suit to void nepotic acts for he has an interest that “appointments
in the civil service shall be made only according to merit and fitness.”—
I find it difficult to agree with the above interpretation which is not only
too narrow but is subversive of the essence of our civil service law. In
the case at bar, private respondent is the Vocational Administrator of
the Balicuatro College of Arts and Trades. He is charged with the
offense of nepotism for the appointment of two sons as driver and
ADMELEC Cases
352
utility worker under his immediate control and supervision. It is beyond
argument that nepotism is prohibited by our civil service law for it
breeds inefficiency, if not corruption, in government service. The
critical question, therefore, is: who has the
431
VOL. 306, APRIL 29, 1999 431
Civil Service Commission vs. Dacoycoy
standing to prevent the violation of this law and protect public
interest? I submit that a taxpayer has the standing to bring suit to void
nepotic acts for he has an interest that “appointments in the civil
service shall be made only according to merit and fitness x x x.”
Same; Same; A taxpayer has a right to good government and
good government cannot result from appointments determined by
bloodlines.—A taxpayer has a right to good government and good
government cannot result from appointments determined by
bloodlines. The Civil Service Law itself recognizes that there are
offenses which can be the subject of a complaint by any private citizen.
Thus, Section 37 of the law allows any private citizen to file a
complaint against a government official or employee directly with the
Commission. Section 38 also recognizes that “administrative
proceedings may be commenced against a subordinate officer or
employee by the head of department or office of equivalent rank, or
head of local government or chiefs of agencies, or regional directors
or upon sworn written complaint of any other persons.” The general
rule is that one who has a right to be heard has standing to seek review
of any ruling adverse to him. Hence, if a private citizen has the right to
file an administrative complaint, he must also have the right to appeal
a dismissal of his complaint, unless the law clearly precludes his right
of appeal for indubitable policy reasons. A contrary rule will diminish
the value of the right to complain. The cases of Paredes, Mendez and
Magpale do not give any policy reason why the dismissal of a charge
of nepotism cannot be appealed. They merely resort to doubtful
inferences in justifying the bar to appeals. Such an approach goes
against the rule that “preclusion of judicial review of administrative
action . . . is not lightly to be inferred.”
Constitutional Law; Civil Service Commission; Under the
Constitution, the jurisdiction of the Supreme Court has been expanded
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 government.—The case at bar involves

the right of a party adversely affected to resort to judicial review. This
case does not involve the appellate jurisdiction of the Civil Service
Commission, i.e., whether or not it has the power to review a decision
exonerating a government official from a charge of nepotism. The facts
show that it was the Civil Service Commission that at the first instance
found Dacoycoy guilty of nepotism. It was Dacoycoy who appealed
the decision of the Civil Service Commission to our regular
432
432 SUPREME COURT REPORTS
ANNOTATED
Civil Service Commission vs. Dacoycoy
court, more exactly, the Court of Appeals pursuant to the Rules
of Court. As Dacoycoy only impleaded Suan as respondent, the Court
of Appeals ordered that the Civil Service Commission should also be
impleaded as party respondent. The Court of Appeals then reversed
the Commission as it cleared Dacoycoy from the charge of nepotism.
The question therefore is whether or not this Court is precluded from
reviewing the decision of the Court of Appeals on a petition for
certiorari under Rule 45. Again, I submit that this Court has jurisdiction
to entertain this review. Indeed, under the Constitution, the jurisdiction
of this Court has even been expanded “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
government.’’ The question is not our lack of jurisdiction but the
prudential exercise of power. In certiorari cases alleging grave abuse
of discretion, our given task is to determine how much is too much of
an abuse.
Same; Same; Under Section 3, Article IX (B) of our Constitution,
it is the Civil Service Commission that has oversight of our civil service
system.—To my mind, it is also of de minimis importance that the
petition to this Court was filed by the Civil Service Commission. The
records will reveal that Suan, the original complainant, wrote to the
Civil Service Commission urging it to make the appeal ostensibly for
lack of means. But even without Suan, I submit that the nature of the
issue in the case at bar and its impact on the effectiveness of
government give the Civil Service Commission the standing to pursue
this appeal. The issue in the case at bar is basically a legal
one, i.e., the proper interpretation of who can be convicted of
nepotism, and undoubtedly, this Court has the authoritative say on
ADMELEC Cases
353
how to interpret laws. Administrative agencies have always conceded
that the final interpretation of laws belongs to regular courts. And the
issue has broad implications on the merit and fitness philosophy of our
civil service system. Under Sec. 3, Article IX (B) of our Constitution, it
is the Civil Service Commission that has oversight of our civil service
system. It is thus the party better equipped to argue the diverse
dimensions of the issue. It is also the most affected, for it has the duty
not to stand still when nepotic practices threaten the principle of
meritrocacy in our government. It seems to me self evident that this
type of injury to public interest can best be vindicated by the
Commission and not by a private person.
433
VOL. 306, APRIL 29, 1999 433
Civil Service Commission vs. Dacoycoy
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Cesar A. Sevilla & Partners for respondent.
PARDO, J.:
The case before us is an appeal via certiorari interposed by the Civil
Service Commission from a decision of the Court of Appeals ruling
that respondent Pedro O. Dacoycoy was not guilty of nepotism and
declaring null and void the Civil Service Commission’s resolution
dismissing him from the service as Vocational School Administrator,
Balicuatro College of Arts and Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens Crime Watch
Vice-President, Allen Chapter, Northern Samar, filed with the Civil
Service Commission, Quezon City, a complaint against Pedro O.
Dacoycoy, for habitual drunkenness, misconduct and nepotism.1
After a fact-finding investigation, the Civil Service Regional Office
No. 8, Tacloban City, found a prima facie case against respondent,
and, on March 5, 1996, issued the corresponding formal charge
against him.2 Accordingly, the Civil Service Commission conducted a

formal investigation, and, on January 28, 1997, the Civil Service
Commission promulgated its resolution finding no substantial
evidence to support the charge of habitual drunkenness and
misconduct. However, the Civil Service Commission found
respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a
result of the appointment of his two sons, Rito and Ped Dacoycoy, as
driver and utility worker, respectively, and their assignment under
_____________
1CSC Rollo, pp. 261-262.
2Report of Investigation, CSC Rollo, pp. 154-162.
434
434 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
his immediate supervision and control as the Vocational School
Administrator, Balicuatro College of Arts and Trades, and imposed on
him the penalty of dismissal from the service.3
On February 25, 1997, respondent Dacoycoy filed a motion for
reconsideration;4 however, on May 20, 1997, the Civil Service
Commission denied the motion.5
On July 18, 1997, respondent Dacoycoy filed with the Court of
Appeals a special civil action for certiorari with preliminary
injunction6 to set aside the Civil Service Commission’s resolutions.
On July 29, 1998, the Court of Appeals promulgated its decision
reversing and setting aside the decision of the Civil Service
Commission, ruling that respondent did not appoint or recommend his
two sons Rito and Ped, and, hence, was not guilty of nepotism. The
Court further held that it is “the person who recommends or appoints
who should be sanctioned, as it is he who performs the prohibited
act.”7
Hence, this appeal.
On November 17, 1998, we required respondent to comment on
the petition within ten (10) days from notice.8 On December 11, 1998,
respondent filed his comment.
We give due course to the petition.
The basic issue raised is the scope of the ban on nepotism.
ADMELEC Cases
354
We agree with the Civil Service Commission that respondent
Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the
penalty of dismissal from the service.
The law defines nepotism9 as follows:
_______________
3 Resolution No. 970684, dated January 28, 1997, CSC Rollo, pp.
108-115.
4 CSC Rollo, pp. 82-92.
5 Resolution No. 972881, dated May 20, 1997, Rollo, pp. 44-46.
6 Petition, CA-G.R. SP No. 44711.
7 Decision, CA-G.R. SP No. 44711, Rollo, pp. 17-22.
8 Resolution, dated November 17, 1998, Rollo, p. 39.
9 Section 59, Executive Order 292, dated July 25, 1987.
435
VOL. 306, APRIL 29, 1999 435
Civil Service Commission vs. Dacoycoy
“Sec. 59. Nepotism.—(1) All appointments to the national, provincial,
city and municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled corporations,
made in favor of a relative of the appointing or recommending
authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.
“As used in this Section, the word “relative” and members of the
family referred to are those related within the third degree either of
consanguinity or of affinity.
(2) The following are exempted from the operations of the rules on
nepotism: (a) persons employed in a confidential capacity, (b)
teachers, (c) physicians, and (d) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full
report of such appointment shall be made to the Commission.”
Under the definition of nepotism, one is guilty of nepotism if an
appointment is issued in favor of a relative within the third civil degree
of consanguinity or affinity of any of the following:
1. a)appointing authority;
2. b)recommending authority;
3. c)chief of the bureau or office; and

4. d)person exercising immediate supervision over the
appointee.
Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending
authority is. To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative within the third
civil degree of consanguinity or affinity of the chief of the bureau or
office, or the person exercising immediate supervision over the
appointee.
Respondent Dacoycoy is the Vocational School Administrator,
Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true
that he did not appoint or recommend his two sons to the positions of
driver and utility worker in the Balicuatro College of Arts and Trades.
In fact, it was Mr. Jaime Daclag, Head of the Vocational Department
of the
436
436 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
BCAT, who recommended the appointment of Rito. Mr. Daclag’s
authority to recommend the appointment of first level positions such
as watchmen, security guards, drivers, utility workers, and casuals
and emergency laborers for short durations of three to six months was
recommended by respondent Dacoycoy and approved by DECS
Regional Director Eladio C. Dioko, with the provision that such
positions shall be under Mr. Daclag’s immediate supervision. On July
1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office
VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school. On
January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual
utility worker. However, it was respondent Dacoycoy who certified that
“funds are available for the proposed appointment of Rito Dacoycoy”
and even rated his performance as “very satisfactory.” On the other
hand, his son Ped stated in his position description form that his father
was “his next higher supervisor.” The circumvention of the ban on
nepotism is quite obvious. Unquestionably, Mr. Daclag was a
subordinate of respondent Pedro O. Dacoycoy, who was the school
administrator. He authorized Mr. Daclag to recommend the
appointment of first level employees under his immediate supervision.
Then Mr. Daclag recommended the appointment of respondent’s two
ADMELEC Cases
355
sons and placed them under respondent’s immediate supervision
serving as driver and utility worker of the school. Both positions are
career positions.
To our mind, the unseen but obvious hand of respondent
Dacoycoy was behind the appointing or recommending authority in the
appointment of his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the
party adversely affected who may take an appeal from an adverse
decision of the appellate court in an administrative civil service
disciplinary case. There is no question that respondent Dacoycoy may
appeal to the Court of Appeals from the decision of the Civil Service
Commission adverse to him.10
________________
10 Rule 43, Section 1, 1997 Rules of Civil Procedure; R.A. No.
7902.
437
VOL. 306, APRIL 29, 1999 437
Civil Service Commission vs. Dacoycoy
He was the respondent official meted out the penalty of dismissal from
the service. On appeal to the Court of Appeals, the court required the
petitioner therein, here respondent Dacoycoy, to implead the Civil
Service Commission as public respondent 11 as the government
agency tasked with the duty to enforce the constitutional and statutory
provisions on the civil service.12
Subsequently, the Court of Appeals reversed the decision of the
Civil Service Commission and held respondent not guilty of nepotism.
Who now may appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent, who was declared not
guilty of the charge. Nor the complainant George P. Suan, who was
merely a witness for the government.13 Consequently, the Civil
Service Commission has become the party adversely affected by such
ruling, which seriously prejudices the civil service system. Hence, as
an aggrieved party, it may appeal the decision of the Court of Appeals
to the Supreme Court.14 By this ruling, we now expressly abandon and
overrule extant jurisprudence that “the phrase ‘party adversely
affected by the decision’ refers to the government employee against
whom the administrative case is filed for the purpose of disciplinary

action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office” 15 and not included
are “cases where the penalty imposed is suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty days
salary”16 or “when the respondent is exonerated of the charges, there
is no occasion for appeal.”17 In other words, we
______________
11 Resolution adopted on July 23, 1997, in CA-G.R. SP No. 44711.
12 Article IX (B), Constitution; Section 12, par. 1, Book V, Executive
Order No. 292, dated July 25, 1987.
13 Paredes vs. Civil Service Commission, 192 SCRA 84, 99,
citing Gonzalo vs. D. Roda, 64 SCRA 120.
14 Rule 45, Section 1, 1997 Rules of Civil Procedure.
15 Mendez vs. Civil Service Commission, 204 SCRA 965, 967.
16 Paredes vs. Civil Service Commission, 192 SCRA 84, 85.
17 Mendez vs. Civil Service Commission, 204 SCRA 965, 968.
438
438 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
overrule prior decisions holding that the Civil Service Law “does not
contemplate a review of decisions exonerating officers or employees
from administrative charges” enunciated in Paredes v. Civil Service
Commission;18 Mendez v. Civil Service Commission;19 Magpale v.
Civil Service Commission;20 Navarro v. Civil Service Commission and
Export Processing Zone Authority21 and more recently Del Castillo v.
Civil Service Commission.22
The Court of Appeals’ reliance on Debulgado vs. Civil Service
Commission,23 to support its ruling is misplaced. The issues in
Debulgado are whether a promotional appointment is covered by the
prohibition against nepotism or the prohibition applies only to original
appointments to the civil service, and whether the Commission had
gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner after the Commission had
earlier approved that appointment. Debulgado never even impliedly
limited the coverage of the ban on nepotism to only the appointing or
recommending authority for appointing a relative. Precisely, in
Debulgado, the Court emphasized that Section 59 “means exactly
ADMELEC Cases
356
what it says in plain and ordinary language: x x x The public policy
embodied in Section 59 is clearly fundamental in importance, and the
Court has neither authority nor inclination to dilute that important
public policy by introducing a qualification here or a distinction there.” 24
Nepotism is one pernicious evil impeding the civil service and the
efficiency of its personnel. In Debulgado, we stressed that “[T]he basic
purpose or objective of the prohibition against nepotism also strongly
indicates that the prohibition
_______________
18 192 SCRA 84.
19 204 SCRA 965.
20 215 SCRA 398.
21 226 SCRA 207.
22 241 SCRA 317.
23 237 SCRA 184.
24 On page 198.
439
VOL. 306, APRIL 29, 1999 439
Civil Service Commission vs. Dacoycoy
was intended to be a comprehensive one.”25 “The Court was unwilling
to restrict and limit the scope of the prohibition which is textually very
broad and comprehensive.”26 If not within the exceptions, it is a form
of corruption that must be nipped in the bud or abated whenever or
wherever it raises its ugly head. As we said in an earlier case “what
we need now is not only to punish the wrongdoers or reward the
‘outstanding’ civil servants, but also to plug the hidden gaps and
potholes of corruption as well as to insist on strict compliance with
existing legal procedures in order to abate any occasion for graft or
circumvention of the law.”27
WHEREFORE, the Court hereby GRANTS the petition and
REVERSES the decision of the Court of Appeals in CA-G.R. SP No.
44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS the
resolutions of the Civil Service Commission dated January 28, 1998
and September 30, 1998, dismissing respondent Pedro O. Dacoycoy
from the service.
No costs.

SO ORDERED.
Davide,
Jr. (C.J.), Bellosillo, Kapunan, Panganiban, Purisima, Buena, Gonza
ga-Reyes and Ynares-Santiago, JJ., concur.
Romero, J., Please see Dissenting Opinion.
Melo, J., Concurs and dissents in Separate Opinion.
Puno, J., Please see Concurring Opinion.
Vitug and Quisumbing, JJ., Join the concurring and
dissenting opinion of Mr. Justice Melo.
Mendoza, J., I join the concurring opinion of Puno, J.
_______________
25 On page 195.
26 On page 197.
27 Callanta vs. Office of the Ombudsman, 285 SCRA 648, 669.
440
440 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
DISSENTING AND CONCURRING OPINION
MELO, J.:
Although I completely agree with the result and likewise with the
wisdom in which the issues relating to nepotism are threshed out in
the majority opinion, I do not agree with the majority opinion stating
that the Civil Service Commission may appeal a judgment of
exoneration in an administrative case involving nepotism. And Mr.
Justice Puno would go further by allowing even a private
complainant—and by implication, a complainant office, to appeal a
decision exonerating or absolving a civil service employee of charges
against, or even imposing a penalty upon him. This totally contravenes
our well-settled ruling in Paredes vs. Civil Service Commission (192
SCRA 84 [1990]), faithfully and consistently reiterated by the Court En
Banc in Mendez vs. Civil Service Commission (204 SCRA
965 [1991]); Magpale vs. Civil Service Commission (215 SCRA
398 [1992]); Navarro vs. Civil Service Commission and Export
Processing Zone Authority (226 SCRA 522 [1993]); University of the
Philippines vs. Civil Service Commission (228 SCRA 207 [1993]); and
ADMELEC Cases
357
more recently in Del Castillo vs. Civil Service Commission (241 SCRA
317 [1995]); that, the Philippine Civil Service Law does not
contemplate a review of decisions exonerating officers and employees
from administrative charges.
The Court of Appeals exonerated respondent Dacoycoy of the
charge of nepotism. From such “adverse decision,” the Civil Service
Commission, through its Office for Legal Affairs, interposed the
present appeal by way of a petition for review on certiorari under Rule
45 of the Rules of Court. Under existing laws and jurisprudence this is
not allowed, so this Court ruled in the above-cited cases. If this point
is not stressed by the Court, the present decision might be
misconstrued as a watering down of the settled doctrine.
Although in Mendez, what was particularly assailed was the
authority of the Civil Service Commission (CSC) to review decisions
of the Merit System Promotion Board (MSPB), the
441
VOL. 306, APRIL 29, 1999 441
Civil Service Commission vs. Dacoycoy
Court nevertheless spelled out the rule regarding appeal from
decisions where officers and employees are exonerated of the
administrative charges leveled against them. Thus, we held:
It is axiomatic that the right to appeal is merely a statutory privilege
and may be exercised only in the manner and in accordance with the
provision of law (Victorias Milling Co., Inc. vs. Office of the Presidential
Assistant for Legal Affairs, 153 SCRA 318).
A cursory reading of P.D. 807, otherwise known as “The Philippine
Civil Service Law” shows that said law does not contemplate a review
of decisions exonerating officers or employees from administrative
charges.
Section 37 paragraph (a) thereof, provides:
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. x x x. (Italics supplied) (p. 7, Rollo)
Said provision must be read together with Section 39 paragraph
(a) of P.D. 805 (should be 807) which contemplates:
Appeals, where allowable, shall be made by the party adversely
affected by the decision x x x. (italics supplied) (p. 104, Rollo)

The phrase “party adversely affected by the decision” refers to the
government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal
from office. In the instant case, Coloyan who filed the appeal cannot
be considered an aggrieved party because he is not the respondent in
the administrative case below.
Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city
mayor, as head of the city government, is empowered to enforce
judgment with finality on lesser penalties like suspension from work
for one month and forfeiture of salary equivalent to one month against
erring employees.
By inference or implication, the remedy of appeal may be availed
of only in a case where the respondent is found guilty of the
442
442 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
charges against him. But when the respondent is exonerated of
said charges, as in the case, there is no occasion for appeal.
(pp. 967-968.)
The Mendez ruling was a reiteration of Paredes wherein we said:
Based on the above provision of law, appeal to the Civil Service
Commission in an administrative case is extended to the party
adversely affected by the decision, that is, the person or the
respondent employee who has been meted out the 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. The decision of the disciplining authority is even
final and not appealable to the Civil Service Commission in cases
where the penalty imposed is suspension for not more than thirty days
or fine in an amount not exceeding thirty days’ salary. Appeal in cases
allowed by law must be filed within fifteen days from receipt of the
decision.
Here the MSPB after hearing and the submission of memoranda
exonerated private respondent Amor of all charges except for habitual
tardiness. The penalty was only a reprimand so that even private
ADMELEC Cases
358
respondent Amor, the party adversely affected by the decision, cannot
even interpose an appeal to the Civil Service Commission.
As correctly ruled by private respondent, petitioner Paredes the
complainant is not the party adversely affected by the decision so that
she has no legal personality to interpose as appeal to the Civil Service
Commission. In an administrative case, the complainant is a mere
witness (Gonzalo v. D. Roda, 64 SCRA 120). Even if she is the Head
of the Administrative Services Department of the HSRC as a
complainant she is merely a witness for the government in an
administrative case. No private interest is involved in an administrative
case as the offense is committed against the government.
(pp. 98-99.)
It is true that as early as Paredes, this Court was already aware of the
fact that in an administrative case, any offense, not only that involving
nepotism as intimated in the majority opinion, is committed against the
government. As rightly
443
VOL. 306, APRIL 29, 1999 443
Civil Service Commission vs. Dacoycoy
pointed out in Mr. Justice Puno’s Separate Opinion, the charges
in Paredes and the other subsequent cases were as serious, if not
more serious than the present charge of nepotism. In fact, there might
even be instances when the unlawful and nepotic act may prove to be
beneficial to the government, as in the case where the appointed
employee is more than qualified for the position. Surely, charges of
abuse of authority or of graft and corruption are more serious than an
accusation of nepotism, for the acts therein involved cannot but cause
injury to government. If the complainant is allowed to appeal in cases
involving nepotism, then with more reason should appeals be allowed
in the dismissal of, or in the imposition of lighter penalties in, the
charges mentioned. How about sexual harassment? Malversation?
Where will this end up in except allowing appeal in all cases. The Court
shall then be legislating or, at least, abandoning settled doctrines for
no compelling reasons. Taking the case of nepotism as the exception
to the rule would not be justified considering that, despite the greater
seriousness of the charges in the earlier cases, we still did not rule

therein that the government may take the appeal as the “party
adversely affected.”
There is more cogent reason, therefore, for the Court to adhere to
the general rule in an administrative case involving nepotism. Besides,
the law cannot be clearer on the matter. It made no distinction as
regards the charge of nepotism. When the law does not distinguish,
the Court should not distinguish.
It should also be noted that Presidential Decree No. 807 has not
undergone any pertinent amendment since the Court applied the law
in Paredes. From the time of its passage on October 6, 1975 until the
present, appeals by the government in cases of exoneration in an
administrative case had been disallowed. It was not only the result of
this Court’s “interpretation” of the law in Paredes that made it so. It
was rather the real and definite intention of the Philippine Civil Service
Law. If it was the intention of Legislature to allow appeals as the
majority holds or as Mr. Justice Puno suggests, then, an amendment
to that effect could have been introduced and
444
444 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
passed. Then President Marcos who had full legislative power could
have easily amended the said law. The records show that he did not.
The fact that no such amendment has been introduced even after the
re-institution of a legislative body, the Batasang Pambansa, and later
in 1987, the Congress of the Philippines, signifies that, at the very least
our interpretation in Paredes and the other subsequent cases sits well
with Congress. It is my submission that the prerogative to now
determine whether this practice of disallowing appeals in cases of
exoneration should still continue or not, exclusively belongs to
Legislature. The Court cannot and should not arrogate this policy-
making power of Congress unto itself, not even in the guise of the
exercise of its expanded power of judicial review under the 1987
Constitution. Only Congress has authority to remedy inadequacies in
the wisdom of a law, should it find any, especially when the definite
intention of the existing law was to disallow the State to appeal from
judgments of exoneration. Any attempt by the Court to transgress this
most basic principle in the separation of powers between these two
branches of government would, to my mind, result in the abhorrent act
of judicial legislation, if not outright disregard of Article 7 of the Civil
Code which states that:
ADMELEC Cases
359
ART. 7. Laws are repealed only by subsequent ones, and their
violations or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
Effective June 1, 1995, Revised Administrative Circular No. 1-95
ordained that, appeals from awards, judgments or final orders or
resolutions of or authorized by any quasi-judicial agency (which
includes the Civil Service Commission) in the exercise of its quasi-
judicial functions shall be taken by filing a verified petition for review
with the Court of Appeals. Although in general, appeal by certiorari
from a judgment or final order or resolution of the Court of Appeals
may be filed via a verified petition for review on certiorari with this
Court (where pure questions of law, distinctly set forth therein, may be
duly raised), an appeal involving a judgment or final order of the Court
of Appeals exonerating a government employee
445
VOL. 306, APRIL 29, 1999 445
Civil Service Commission vs. Dacoycoy
in an administrative case, in particular, falls within the ambit of the
provisions of Section 39, paragraph (a) of Presidential Decree No.
807. It is elementary that a special law such as Presidential Decree
No. 807 takes precedence over general rules of procedure such as
Rule 45 of the Rules of Court. No appeal may, therefore, be taken
under Rule 45.
Moreover, it is recognized in our jurisdiction that an administrative
case which could result in the revocation of license, or similar
sanctions like dismissal from office, constitutes a proceeding which
partakes of a criminal nature (cf. Pascual vs. Board of Medical
Examiners, 28 SCRA 345 [1969]). Being such, provisions of law
pertaining thereto must perforce be construed strictly against the
State, just as penal laws are strictly construed strictly against the State
(People vs. Manantan, 5 SCRA 684 [1962]). Any ambiguity, should
there be any, must be resolved in favor of the respondent in the
administrative case. The term “party adversely affected” should not be
construed as to include the State in administrative charges involving
nepotism.
To allow appeals from decisions, be they exonerative or otherwise,
against civil service employees would, to my mind, be stocking the
stakes too much against our civil servants. It should be noted in this
regard that the greater bulk of our government workers are ordinary
people, working under supervision and, more often than not, exposed

to political pressure and the influence of peddlers of power. Their
simple status notwithstanding, they are not easily cowed and
intimidated. Many, though, are threatened with complaints, transfer of
station, or demotion, if they refuse to do the bidding of some
unscrupulous superiors or politicians. I can, therefore, understand why
the law and our jurisprudence disallow appeal by the complainant from
decisions in administrative cases, be they exonerative or otherwise.
Verily, an employee may be hounded into spending up to his last
resources and losing his self-respect and honor by successive
appeals.
What will happen, if for instance, the respondent government
employee is initially exonerated or given a light penalty, and the
complainant may appeal, insisting that the employee
446
446 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
is guilty or that he deserves a heavier penalty? And, if the Civil Service
Commission thereafter metes out a penalty not to the liking of the
complainant, the matter may still be elevated to the Court of Appeals
or even this Court? Where else will all this end, if not in the physical
and financial exhaustion of the respondent civil servant? Again, I wish
to stress that I speak here of the ordinary employees. The big shots in
government who commit wrongs may somehow hereby benefit, but
then we shall be content in concluding that we decided in favor of the
many, that the good of the majority prevailed.
A judgment of exoneration by the Court of Appeals, as in the case
of a judgment of exoneration by the Civil Service Commission or the
now defunct Merit System Protection Board, may indeed prove to be
truly adverse to the government agency concerned and eventually to
the State as a whole. This is especially so when there had been lapses
in the interpretation and/or application of the law as in the present
case. This notwithstanding, the right to appeal, which is merely
statutory may not be invoked, much less exercised, when the law does
not provide any. Again, until and unless Congress exercises its
prerogative to amend such law, this Court is bound by it and has no
other recourse except to apply the same.
Fortunately for petitioner but not so for respondent, the latter failed
to invoke the foregoing general rule. In a similar case, we held that the
party favored by such law who fails to interpose any objection to an
appeal may be deemed to have waived this right. The Court En
ADMELEC Cases
360
Banc, speaking through Mr. Justice Camilo D. Quiason in Mendoza
vs. Civil Service Commission (233 SCRA 657 [1994]), held:
We decided this case with full awareness of the decisions in Paredes
v. Civil Service Commission, 192 SCRA 84 (1990) and Mendez vs.
Civil Service Commission, 204 SCRA 965 (1991), where we held that
only the respondent in the administrative disciplinary case, not the
complainant, can appeal from a decision of the Merit Systems
Protection Board (See also Magpale vs. Civil Service
Commission, 215 SCRA 398 [1992]). These decisions were anchored
on the interpretation of Section 39(a) of P.D. No. 807, the “Philippine
447
VOL. 306, APRIL 29, 1999 447
Civil Service Commission vs. Dacoycoy
Service Law,” which provides that appeals to the CSC shall be made
by “the party adversely affected by the decision.” We interpreted the
quoted phrase as referring to the respondent in the administrative
case.
When private respondent appealed the decision of the MSPB to
the CSC, petitioner never questioned the propriety of the appeal and
preferred to defend the correctness of the decision. Likewise,
petitioner failed to question before this Court the right of private
respondent to appeal from the decision of the MSPB. A law limiting
the right to appeal to the respondent in the administrative case is a
rule of procedure, not of substantive law. Failure to invoke timely a
rule of procedure in favor of a party constitutes a waiver thereof
(Republic vs. Judge Villanueva, G.R. No. 83333, February 13, 1989,
En Banc, Minute Resolution).
(pp. 663-664.)
As a final observation, it may well be noted that the result in the
present case may already be achieved by the application of this
Court’s ruling in Mendoza. It might not be necessary to step over
board by institutionalizing the case of nepotism as an exception
to Paredes, or, as Mr. Justice Puno proposes,
abandoning Paredes altogether. I believe that it will do our justice
system more good than harm if we abide by the principle of stare
decisis in the present case. This case, I humbly submit is not the
proper vehicle to review and abandon doctrines of long standing, for
nonetheless, the appeal by the complainant is allowed there being no
objection thereto by respondent Dacoycoy. We need not disturb at this
time our old rulings. We need not enter uncertain and mined fields, for
 361

the result sought to be accomplished by the majority can well be 2 Chapter 3, Sec. 12 (11), The Revised Administrative Code of
achieved by simply following and applying our previous rulings on the 1987 on the Civil Service Commission.
matter. 3 Rule XIV, Sec. 31, Omnibus Rules Implementing Book V of

Premises considered and with the above observations, I vote to
grant the petition as stated in the dispositive thereof.
448
448 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
DISSENTING OPINION
ROMERO, J.:
Does the Civil Service Commission have the legal personality to
appeal a decision of the Court of Appeals exonerating an employee
charged in an administrative case, which decision, in effect, reversed
and nullified the Commission’s finding that the respondent employee
is guilty as charged?
After an exhaustive and careful scrutiny of P.D. No. 807 (otherwise
known as the Civil Service Law), Executive Order No. 292 (otherwise
known as the Revised Administrative Code of 1987) as well as the
Omnibus Rules Implementing Book V of Executive Order No. 292, I
find no legal basis to support the contention of the majority that the
Commission has that legal personality.
The Civil Service Commission is the central personnel agency of
the government.1 Corollarily, it is equipped with the power and function
to hear and decide administrative cases instituted by or brought before
it directly or on appeal, including contested appointments and to
review decisions and actions of its offices and of the agencies
attached to it.2 This is in consonance with its authority to pass upon
the removal, separation and suspension of all officers and employees
in the civil service and upon all matters relating to the conduct,
discipline and efficiency of such officers and employees except as
otherwise provided by the Constitution or by law.3 Sitting en banc, it is
composed of a Chairman and two Commission-
Executive Order No. 292.
449
VOL. 306, APRIL 29, 1999 449
Civil Service Commission vs. Dacoycoy
ers4 who shall decide by a majority vote of all its Members any case
or matter brought before it for resolution.5
It is thus clear that the Civil Service Commission has been
constituted as a disciplining authority. Such has always been the intent
of the 1987 Constitution, the Revised Administrative Code of 1987 on
the Civil Service Commission, as well as the Civil Service Law. In fact,
the Proposed Civil Service Code of the Philippines seeks to provide
that the Commission shall have concurrent original disciplinary
jurisdiction over officials and employees, including Presidential
appointees of the departments, agencies, bureaus, provinces, cities,
municipalities, state colleges and universities, and instrumentalities,
including government-owned or controlled corporations with original
charters. Pursuant to its quasi-judicial function, it acts as an impartial
tribunal in the resolution of the cases brought before it.
Section 34, Rule XIV of the Omnibus Rules Implementing Book V
of Executive Order No. 292 provides the answer as to who may appear
before the Commission, thus:
“Administrative proceedings may be commenced against a
subordinate officer or employee by the following officials and
employees:
1. (a)Secretary of department;
2. (b)Head of Office of Equivalent Rank;
3. (c)Head of Local Government Unit;
4. (d)Chief of Agency;
5. (e)Regional Director; or
6. (f)Upon Sworn, Written complaint of Any other Person.”6

_______________ (Italics supplied)

1 Article IX-B, Sec. 3, 1987 Constitution. _______________

ADMELEC Cases

4 Article IX-B, Sec. 1, 1987 Constitution.
5 Article IX-A, Sec. 7, 1987 Constitution.
6 Sec. 38 (a), of the Civil Service Law, Sec. 48 (1) Chapter 7 of the
Revised Administrative Code of 1987 on the Civil Service
Commission.
450
450 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
Consequently, the complainant can either be the Secretary of
department, head of office of equivalent rank, head of a local
government unit, chief of agency, regional director or any other person
or party. “The phrase ‘any other party’ has been understood to be a
complainant other than the head of department or office of equivalent
rank or head of local government or chiefs of agencies or regional
directors.’’7 As further illustrated in Sec. 37 of P.D. No. 807:
“x x x. A complaint may be filed directly with the Commission by
a private citizen against a government official or employee x x x.”
The respondent, on the other hand, is any subordinate officer or
employee. Nowhere can be found, expressly or impliedly, in Section
34 of Rule XIV of Omnibus Rules Implementing Book V of E.O. No.
292, the Commission as one of the parties, either as complainant or
respondent in an administrative case. Logically and by necessary
implication, it cannot be considered either a complainant or a
respondent. Expressio unius est exclusio alterius. The express
mention of one person, thing or consequence implies the exclusion of
all others.8 Based on the foregoing, there is no other conclusion but
that the Civil Service Commission is not a party to an administrative
proceeding brought before it. As provided by Supreme Court
Administrative Circular 1-95, decisions, orders or rulings of the
Commission may be brought to the Supreme Court, now to the Court
of Appeals, on certiorari by the aggrieved party.9 By inference, an
aggrieved party is either the one who initiated the complaint before the
Commission or the respondent, the person subject of the complaint.
In fact, the question as to who is an “aggrieved party” has long been
settled in a litany of cases. An aggrieved party in an administra-
______________
7 P.D. No. 807, Sec. 38 (g).
ADMELEC Cases
362
8 Agpalo, Ruben E., Statutory Construction, Second Ed., 1990, p.
160.
9 Chapter 3, Sec. 12, The Revised Administrative Code of 1987 on
the Civil Service Commission in accordance with Sec. 7, Article IX-A
of the 1987 Constitution.
451
VOL. 306, APRIL 29, 1999 451
Civil Service Commission vs. Dacoycoy
tive case is the government employee against whom an administrative
complaint is filed. The Civil Service Commission is definitely not a
government employee. Neither is it an agency against whom an
administrative charge is filed. While it may be argued that, in a sense,
the government is an “aggrieved party” in administrative proceedings
before the Commission, it nevertheless is not the “aggrieved party”
contemplated under P.D. No. 807 or the Civil Service Law.
Having established that the Civil Service Commission is not a
party, much less an aggrieved party, then indubitably, it has no legal
personality to elevate the case to the appellate authority. The
Commission, therefore, has no legal standing to file the instant
petition.
While admittedly, the Civil Service Commission is considered a
nominal party when its decision is brought before the Court of Appeals,
such is only a procedural formality. As with appellate processes, a
nominal party is not the aggrieved party. Its inclusion as a party is
based primarily on the fact that the decision, order or ruling it issued
is being contested or assailed and secondarily, for purposes of
enforcement. By analogy, the Commission in the performance of its
quasijudicial functions is just like a judge who should “detach himself
from cases where his decision is appealed to a higher court for review.
The raison d’etre for such doctrine is that a judge is not an active
combatant in such proceeding and must leave the opposing parties to
contend their individual positions and for the appellate court to decide
the issues without his active participation. By filing this case, petitioner
in a way ceased to be judicial and has become adversarial instead.” 10
I dissent from the ponencia’s conclusion that the Commission may
appeal a judgment of exoneration in an administrative case involving
nepotism in light of the foregoing disquisition.
________________

10Judge Calderon v. Solicitor General, 215 SCRA 876 [1992].
452
452 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
CONCURRING OPINION
PUNO, J.:
I ‘(b) The heads of departments, agencies and instrumentalities,
The far reaching fall-out effects of the majority opinion on the merit
and fitness philosophy of our civil service system compel the
submission of this humble concurring opinion. The doctrine barring
appeal in exoneration cases was first enunciated in the 1990 case
of Paredes, where this Court held:1
“As regards G.R. No. 89530, the crucial issue to be resolved is
whether or not petitioner Paredes has the legal personality to appeal
the decision of the MSPB absolving private respondent Amor of all
charges except for habitual tardiness for which the latter was
reprimanded.
“Appeal in judicial proceedings is a statutory right that must be
exercised only in the manner and in accordance with the provisions of
law (Ozaeta v. Court of Appeals, G.R. 83281, December 4,
1989; Velasco v. Court of Appeals, 51 SCRA 439). This doctrine is
also applicable in quasi-judicial proceedings so that one must first
ascertain the law applicable to determine whether or not the party can
appeal the order or decision.
“Section 37 of Presidential Decree No. 807, provides, viz.:
‘SEC. 37.—(a) 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
_______________
ADMELEC Cases
363
1 Penned by J. Paras with Justices Fernan (CJ), Melencio-Herrera,
Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Griño-
Aquino, Medialdea and Regalado, concurring. J. Feliciano was on
leave.
453
VOL. 306, APRIL 29, 1999 453
Civil Service Commission vs. Dacoycoy
submitted to the Commission with recommendation as to the penalty
to be imposed or other actions to be taken.
provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days salary. In
case the decision rendered by a bureau or office head is appealable
to the Commission, the same may be initially appealed to the
department and finally to the Commission and pending appeal, the
same shall be executory except when the penalty is removal, in which
case the same shall be executory only after confirmation by the
department head.
‘(c) An investigation may be entrusted to the regional director or
similar officials who shall make the necessary report and
recommendation to the chief of bureau or office or department, within
the period specified in Paragraph (d) of the following Section.
‘(d) An appeal shall not stop the decision from being executory,
and in case the penalty is suspension or removal, the respondent shall
be considered as having been under preventive suspension during the
pendency of the appeal in the event he wins an appeal.’
Section 39 thereof also provides, viz.:
‘SEC. 39.—(a) Appeals, where allowable, shall be made by the
party adversely affected by the decision within fifteen days from
receipt of the decision unless a petition for reconsideration is
seasonably filed, which petition shall be decided within fifteen days.
Notice of the appeal shall be filed with the disciplining office, which
shall forward the records of the case, together with the notice of
appeal, to the appellate authority within fifteen days from filing of the
notice of appeal, with its comment, if any. The notice of appeal shall
specifically state the date of the decision appealed from and the date

or receipt thereof. It shall also specifically set forth clearly the grounds
relied upon for excepting from the decision.
‘(b) A petition for reconsideration shall be based only on any of the
following grounds: (1) new evidence has been dis
454
454 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
covered which materially affects the decision rendered; (2) the
decision is not supported by the evidence on record; (3) errors of law
or irregularities have been committed prejudicial to the interest of the
respondent: Provided, that only one petition for reconsideration shall
be entertained.’
“Based on the above provisions of law, appeal to the Civil Service
Commission in an administrative case is extended to the party
adversely affected by the decision, that is, the person of the
respondent employee who has been meted out the 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. The decision of the disciplining authority is even
final and not appealable to the Civil Service Commission in cases
where the penalty imposed is suspension for not more than thirty days
or fine in an amount not exceeding thirty days salary. Appeal in cases
allowed by law must be filed within fifteen days from receipt of the
decision.
“Here, the MSPB, after hearing and submission of
memoranda, exonerated private respondent Amor of all charges
except for habitual tardiness. The penalty was only a reprimand so
that even private respondent Amor, the party adversely affected by the
decision, cannot even interpose an appeal to the Civil Service
Commission.
“As correctly ruled by private respondent, petitioner Paredes the
complainant is not the party adversely affected by the decision so that
she has no legal personality to interpose an appeal to the Civil Service
Commission. In an administrative case, the complainant is a mere
witness (Gonzales v. De Roda, 64 SCRA 120). Even if she is the Head
of the Administrative Services Department of the HSRC, as a
complainant she is merely a witness for the government in an
administrative case. No private interest is involved in an administrative
case as the offense is committed against the government.”
ADMELEC Cases
364
Paredes was reiterated a year later or in 1991 in Mendez, where,
again with Mr. Justice Paras as ponente, this Court held:2
_______________
2 The vote shows: Narvasa (CJ), Melencio-Herrera, Cruz,
Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide,
Jr., and Romero, JJ., concurring. Gutierrez, Jr., J. concurred in the
result. Nocon, J., did not take part in the deliberation.
455
VOL. 306, APRIL 29, 1999 455
Civil Service Commission vs. Dacoycoy
“The petitioner filed a motion for reconsideration, assailing the reversal
of the city mayor’s decision by the MSPB and the CSC on the ground
that Coloyan is not an aggrieved party or ‘party adversely affected by
the decision’ allowed by law to file an appeal. Moreover, the petitioner
claimed that his exoneration by the city mayor is unappealable
pursuant to Section 37, paragraph (b) of P.D. 807.
“The CSC, however, denied said motion for reconsideration ruling
that there is nothing in the said law which precludes an appeal from
the decision of the disciplining authorities to determine, among others,
whether the decision rendered is supported by the facts on record and
the law.”
“Hence, the present petition.
“We find merit in the petition.
“It is axiomatic that the right to appeal is merely a statutory privilege
and may be exercised only in the manner and in accordance with the
provision of law. (Victorias Milling Co., Inc. vs. Office of the
Presidential Assistant for Legal Affairs, 153 SCRA 318).
“A cursory reading of P.D. 807, otherwise known as ‘The Philippine
Civil Service Law,’ shows that said law does not contemplate a review
of decisions exonerating officers or employees from administrative
charges.
“Section 37, paragraph (a) thereof, provides:
‘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. x x x’ (italics supplied) (p. 7, Rollo)

“Said provision must be read together with Section 39, paragraph
(a) of P.D. 805 which contemplates:
“Appeals, where allowable, shall be made by the party adversely
affected by the decision x x x.” (italics supplied) (p. 104, Rollo)
“The phrase ‘party adversely affected by the decision’ refers to the
government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal
from office. In the instant case, Coloyan who filed the appeal
456
456 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
cannot be considered an aggrieved party because he is not the
respondent in the administrative case below.
“Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city
mayor, as head of the city government, is empowered to enforce
judgment with finality on lesser penalties like suspension from work
for one month and forfeiture of salary equivalent to one month against
erring employees.
“By inference or implication, the remedy of appeal may be availed
of only in a case where the respondent is found guilty of the charges
filed against him. But when the respondent is exonerated of said
charges, as in this case, there is no occasion for appeal.”
Again a year later or in 1992, in Magpale, Jr., this time with Mr. Justice
Melo as ponente, the Court reiterated the Paredes doctrine, viz.:3
“After Mendez vs. Civil Service Commission (204 SCRA 965) [1991],
the extent of the authority of respondent CSC to review the decisions
of the MSPB is now a settled matter.
The Court, in said case held:
‘It is axiomatic that the right to appeal is merely a statutory privilege
and may be exercised only in the manner and in accordance with the
provision of law. (Victorias Milling Co., Inc. vs. Office of the
Presidential Assistant for Legal Affairs, 153 SCRA 318).
‘A cursory reading of PD 807, otherwise known as ‘The Philippine
Civil Service Law,’ shows that said law does not contemplate a review
of decision exoneration (sic) officers or employees from administrative
charges.
‘Section 37, paragraph (a) thereof, provides:
‘The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension
ADMELEC Cases
365
for more than thirty days, or fine in an amount exceeding thirty days’
salary, demo
_______________
3 The vote shows Gutierrez, Jr., Feliciano, Padilla, Bidin, Griño-
Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, and
Campos, Jr., JJ., concurring. Narvasa (CJ) and Medialdea, J., were
on leave.
457
VOL. 306, APRIL 29, 1999 457
Civil Service Commission vs. Dacoycoy
tion in rank or salary or transfer, removal or dismissal from office. x x
x’ (italics supplied) (p. 7, Rollo)
‘Said provision must be read together with Section 39, paragraph
(a) of P.D. 805 which contemplates:
‘Appeals, where allowable, shall be made by the party adversely
affected by the decision x x x.’ (italics supplied) (p. 104, Rollo)
‘The phrase ‘party adversely affected by the decision’ refers to the
government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal
from office. In the instant case, Coloyan who filed the appeal cannot
be considered an aggrieved party because he is not the respondent in
the administrative case below.
‘Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city
mayor, as head of the city government, is empowered to enforce
judgment with finality on lesser penalties like suspension from work
for one month and forfeiture of salary equivalent to one month against
erring employees.
‘By inference or implication, the remedy of appeal may be availed
of only in a case where the respondent is found guilty of the charges
filed against him. But when the respondent is exonerated of said
charges, as in this case, there is no occasion for appeal.’ (pp. 967-
968)
The above ruling is a reiteration of the earlier pronouncement
in Paredes v. Civil Service Commission (192 SCRA 84 [1990]) cited
by petitioner, x x x
xxx

“While it is true, as contended by respondent Civil Service
Commission, that under Section 12 (Par. 11), Chapter 3, Subtitle A,
Book V of Executive Order 292, the CSC does have the power to—
‘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’
the exercise of the power is qualified by and should be read
together with the other sections of the same sub-title and book of
Executive
458
458 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
Order 292, particularly Section 49 which prescribes the following
requisites for the exercise of the power of appeal, to wit:
1. (a)the decision must be appealable;
2. (b)the appeal must be made by the party adversely affected
by the decision;
3. (c)the appeal must be made within fifteen days from receipt of
the decision, unless a petition for reconsideration is
seasonably filed; and
4. (d)the notice of appeal must be filed with the disciplining
office, which shall forward the records of the case, together
with the notice of appeal to the appellate authority within
fifteen days from filing of the notice of appeal, with its
comment, if any.
“Under Section 47 of the same Code, the CSC shall decide on
appeal all administrative disciplinary cases involving the imposition of:
1. (a)a penalty of suspension for more than thirty days; or
2. (b)fine in an amount exceeding thirty days salary; or
3. (c)demotion in rank or salary or transfer; or
4. (d)removal or dismissal from office.
“The February 5, 1990 decision of the MSPB did not involve
dismissal or separation from office, rather, the decision exonerated
petitioner and ordered him reinstated to his former position.
ADMELEC Cases
366
Consequently, in the light of our pronouncements in the aforecited
cases of Mendez vs. Civil Service Commission and Paredes vs. Civil
Service Commission, the MSPB decision was not a proper subject of
appeal to the CSC.
“Settled is the rule that a tribunal, board, or officer exercising
judicial functions acts without jurisdiction if no authority has been
conferred by law to hear and decide the case. (Acena v. Civil Service
Commission, 193 SCRA 623 [1991]).”
In 1994, in Mendoza vs. Civil Service Commission, the Court, with Mr.
Justice Quiazon as ponente, avoided the Paredes rule by holding:4
_______________
4 Op. cit. The vote shows Narvasa, (CJ), Cruz, Feliciano, Padilla,
Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug
and Kapunan, JJ., concurring.
459
VOL. 306, APRIL 29, 1999 459
Civil Service Commission vs. Dacoycoy
“x x x
“We decided this case with full awareness of the decisions
in Paredes v. Civil Service Commission, 192 SCRA 84 (1990)
and Mendez v. Civil Service Commission, 204 SCRA 965 (1991),
where we held that only the respondent in the administrative
disciplinary case, not the complainant, can appeal from a decision of
the Merit Systems Protection Board (See also Magpale v. Civil Service
Commission, 215 SCRA 398 [1992]). These decisions were anchored
on the interpretation of Section 39(a) of P.D. No. 807, the ‘Philippine
Civil Service Law,’ which provides that appeals to the CSC shall be
made by ‘the party adversely affected by the decision.’ We interpreted
the quoted phrase as referring to the respondent in the administrative
case.
“When private respondent appealed the decision of the MSPB to
the CSC, petitioner never questioned the propriety of the appeal and
preferred to defend the correctness of the decision. Likewise,
petitioner failed to question before this Court the right of private
respondent to appeal from the decision of the MSPB. We treat such
inactions of petitioner as a waiver on his part to question the authority
of the CSC to review the decision of the MSPB. A law limiting the right

to appeal to the respondent in the administrative case is a rule of
procedure, not of substantive law. Failure to invoke timely a rule of
procedure in favor of a party constitutes a waiver thereof (Republic v.
Judge Villanueva, G.R. No. 83333, February 13, 1989, En Banc,
Minute Resolution).”
II
With humility, I make the submission that it is time to strike down the
doctrine disallowing appeals to the Civil Service Commission when the
decision exonerates a government official or employee from an
administrative charge. The doctrine is principally based on a
constricted interpretation of Section 39 of P.D. No. 807 (Civil Service
Law) which states:
“Sec. 39. (a) Appeals, where allowable, shall be made by the
party adversely affected by the decision within fifteen days from
receipt of the decision unless a petition for reconsideration is
seasonably filed, which petition shall be decided within fifteen days. x
x x”
460
460 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
According to Paredes, Mendez and Magpale, the phrase “party
adversely affected by the decision” refers alone to the respondent
government official or employee against whom the administrative case
is filed. They excluded from its compass the party complainant whose
charge is dismissed. Hence, when the respondent government official
or employee is exonerated, the decision is deemed final as the party
complainant is precluded from appealing.
I find it difficult to agree with the above interpretation which is not
only too narrow but is subversive of the essence of our civil service
law. In the case at bar, private respondent is the Vocational
Administrator of the Balicuatro College of Arts and Trades. He is
charged with the offense of nepotism for the appointment of two sons
as driver and utility worker under his immediate control and
supervision. It is beyond argument that nepotism is prohibited by our
civil service law for it breeds inefficiency, if not corruption, in
government service. The critical question, therefore, is: who has the
standing to prevent the violation of this law and protect public interest?
I submit that a taxpayer has the standing to bring suit to void nepotic
acts for he has an interest that “appointments in the civil service shall
ADMELEC Cases
367
be made only according to merit and fitness x x x.” 5 A taxpayer has a
right to good government and good government cannot result from
appointments determined by bloodlines. The Civil Service Law itself
recognizes that there are offenses which can be the subject of a
complaint by any private citizen. Thus, Section 37 of the law allows
any private citizen to file a complaint against a government official or
employee directly with the Commission. Section 38 also recognizes
that “administrative proceedings may be commenced against a
subordinate officer or employee by the head of department or office of
equivalent rank, or head of local government or chiefs of agencies, or
regional directors or upon sworn written complaint of any other
persons.” The general rule is that one who has a right to be heard has
standing to seek review of any ruling adverse to
________________
5Art. IX (B), Sec. 2(2) of the 1987 Constitution.
461
VOL. 306, APRIL 29, 1999 461
Civil Service Commission vs. Dacoycoy
him. Hence, if a private citizen has the right to file an administrative
complaint, he must also have the right to appeal a dismissal of his
complaint, unless the law clearly precludes his right of appeal for
indubitable policy reasons. A contrary rule will diminish the value of
the right to complain. The cases of Paredes, Mendez and Magpale do
not give any policy reason why the dismissal of a charge of nepotism
cannot be appealed. They merely resort to doubtful inferences in
justifying the bar to appeals. Such an approach goes against the rule
that “preclusion of judicial review of administrative action . . . is not
lightly to be inferred.”6
In truth, the doctrine barring appeal is not categorically sanctioned
by the Civil Service Law. For what the law declares as “final” are
decisions of heads of agencies involving suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty (30) days
salary. But there is a clear policy reason for declaring these decisions
final. These decisions involve minor offenses. They are numerous for
they are the usual offenses committed by government officials and
employees. To allow their multiple level appeal will doubtless
overburden the quasi-judicial machinery of our administrative system

and defeat the expectation of fast and efficient action from these
administrative agencies. Nepotism, however, is not a petty offense. Its
deleterious effect on government cannot be over-emphasized. And it
is a stubborn evil. The objective should be to eliminate nepotic acts,
hence, erroneous decisions allowing nepotism cannot be given
immunity from review, especially judicial review. It is thus non
sequitur to contend that since some decisions exonerating public
officials from minor offenses can not be appealed, ergo, even a
decision acquitting a government official from a major offense like
nepotism cannot also be appealed.
Similarly, the doctrine barring appeal cannot be justified by the
provision limiting the jurisdiction of the Civil Service Commission to
review decisions involving: (1) suspension for more than thirty (30)
days; (2) fine in an amount exceeding
_____________
6Barlow v. Collins, 397 US 159 (1970).
462
462 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
thirty (30) days salary; (3) demotion in rank or salary; and (4) transfer,
removal or dismissal from office. Again, there is nothing in this
provision indicating legislative intent to bar appeal from decisions
exonerating a government official or employee from nepotism.
Statutory preclusion of appeals is the exception rather than the rule,
for as stressed by Mr. Justice Douglas, ‘‘tolerance of judicial review
has been more and more the rule against the claim of administrative
finality.’’7 Yet the cases of Paredes, Mendez and Magpale precisely
barred all appeals despite lack of an explicit, positive provision in the
Civil Service Law.
III
Moreover, the case at bar involves the right of a party adversely
affected to resort to judicial review. This case does not involve the
appellate jurisdiction of the Civil Service Commission, i.e., whether or
not it has the power to review a decision exonerating a government
official from a charge of nepotism. The facts show that it was the Civil
Service Commission that at the first instance found Dacoycoy guilty of
nepotism. It was Dacoycoy who appealed the decision of the Civil
ADMELEC Cases
368
Service Commission to our regular court, more exactly, the Court of
Appeals pursuant to the Rules of Court. As Dacoycoy only impleaded
Suan as respondent, the Court of Appeals ordered that the Civil
Service Commission should also be impleaded as party respondent.
The Court of Appeals then reversed the Commission as it cleared
Dacoycoy from the charge of nepotism. The question therefore is
whether or not this Court is precluded from reviewing the decision of
the Court of Appeals on a petition for certiorari under Rule 45. Again,
I submit that this Court has jurisdiction to entertain this review. Indeed,
under the Constitution, the jurisdiction of this Court has even been
expanded “to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of juris-
______________
7 Dissenting Opinion in Union Pacific Railroad Co. v. Price, 360 US
601, 619 (1959).
463
VOL. 306, APRIL 29, 1999 463
Civil Service Commission vs. Dacoycoy
diction on the part of any branch or instrumentality of
government.’’8 The question is not our lack of jurisdiction but the
prudential exercise of power. In certiorari cases alleging grave abuse
of discretion, our given task is to determine how much is too much of
an abuse.
To my mind, it is also of de minimis importance that the petition to
this Court was filed by the Civil Service Commission. The records will
reveal that Suan, the original complainant, wrote to the Civil Service
Commission urging it to make the appeal ostensibly for lack of means.
But even without Suan, I submit that the nature of the issue in the case
at bar and its impact on the effectiveness of government give the Civil
Service Commission the standing to pursue this appeal.The issue in
the case at bar is basically a legal one, i.e., the proper interpretation
of who can be convicted of nepotism, and undoubtedly, this Court has
the authoritative say on how to interpret laws. Administrative agencies
have always conceded that the final interpretation of laws belongs to
regular courts. And the issue has broad implications on the merit and
fitness philosophy of our civil service system. Under Sec. 3, Article IX
(B) of our Constitution, it is the Civil Service Commission that has

oversight of our civil service system. It is thus the party better equipped
to argue the diverse dimensions of the issue. It is also the most
affected, for it has the duty not to stand still when nepotic practices
threaten the principle of meritrocacy in our government. It seems to
me self evident that this type of injury to public interest can best be
vindicated by the Commission and not by a private person.
There are other disturbing implications if we do not junk the
doctrine of non-reviewability of decisions exonerating government
officials from charges of nepotism. For one, the doctrine unduly favors
officials charged with nepotism, for while we allow further review of
their conviction, we disallow review of their exoneration, regardless of
the errors. This distorted rule contravenes our distaste against
nepotism, a practice whose continuance can fatally erode faith in
govern-
_______________
8
Section 1, Article VIII of the 1987 Constitution.
464
464 SUPREME COURT REPORTS ANNOTATED
Civil Service Commission vs. Dacoycoy
ment. For another, perpetuating a nepotic act, an evil that should be
extirpated wherever found, can never be the intent of our legislators
who crafted our Civil Service Law. For still another, completely cutting
off access to judicial review goes against the spirit of the 1987
Constitution expanding the jurisdiction of this Court. Putting up
borders of non-reviewability weakens the judiciary’s checking power.
Indeed, shielding abusive administrative actions and decisions from
judicial oversight will ultimately erode the rule of law. As Justice
Brandeis opined, “supremacy of law demands that there shall be an
opportunity to have some court decide whether an erroneous rule of
law was applied and whether the proceeding in which facts were
adjudicated was conducted regularly.”9
As we cross the new millennium, our people will find their lives
more and more affected by orders and regulations coming from
administrative agencies. Predictably, some of these orders, rules and
regulations will devalue rights and violate policy polestars of our
Constitution with greater velocity. It is for this reason and more that
the 1987 Constitution mandated this Court to be a more active agent
ADMELEC Cases
369
in checking abuse of power in government. We will default in this role
if we continue to uphold the doctrine of non-reviewability of decisions
exonerating government officials from nepotism. A government free
from nepotism is a proclamation that needs no precis.
I join the majority opinion.
Petition granted, judgment reversed. Resolutions revived and
affirmed.
G.R. No. 192074. June 10, 2014.*
LIGHT RAIL TRANSIT AUTHORITY, represented by its Administrator
MELQUIADES A. ROBLES, petitioner, vs. AURORA A. SALVAÑA,
respondent.
Remedial Law; Civil Procedure; Appeals; It is settled that the
right to appeal is not a natural right or a part of due process; it is merely
a statutory privilege, and may be exercised only in the manner and in
accordance with the provisions of the law.—It is settled that “[t]he right
to appeal is not a natural right [or] a part of due process; it is merely a
statutory privilege, and may be exercised only in the manner and in
accordance with the provisions of the law.” If it is not granted by the
Constitution, it can only be availed of when a statute provides for it.
When made available by law or regulation, however, a person cannot
be deprived of that right to appeal. Otherwise, there will be a violation
of the constitutional requirement of due process of law.
Administrative Agencies; Civil Service Commission; Article
IX(B), Section 3 of the Constitution mandates that the Civil Service
Commission (CSC) shall be “the central personnel agency of the
Government.”—Article IX(B), Section 3 of the Constitution mandates
that the Civil Service Commission shall be “the central personnel
agency of the Government.” In line with the constitutionally enshrined
policy that a public office is a public trust, the Commission was tasked
with the duty “to set standards and to enforce the laws and rules
governing the selection, utilization, training, and discipline of civil
servants.”
Administrative Law; Public Officers; Security of Tenure; Civil
servants enjoy security of tenure, and no officer or employee in the
Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.—Civil servants enjoy security
of tenure, and “[n]o officer or employee in the Civil Service shall be

suspended or dismissed except for cause as provided by law and after
due process.” Under Section 12, Chapter 3, Book V of the Adminis-
_______________
* EN BANC.
142
142 SUPREME COURT REPORTS
ANNOTATED
Light Rail transit Authority vs. Salvaña
trative Code, it is the Civil Service Commission that has the
power to “[h]ear and decide administrative cases instituted by or
brought before it directly or on appeal.”
Remedial Law; Parties; The present rule is that a government
party is a “party adversely affected” for purposes of appeal provided
that the government party that has a right to appeal must be the office
or agency prosecuting the case.—The present rule is that a
government party is a “party adversely affected” for purposes of
appeal provided that the government party that has a right to appeal
must be the office or agency prosecuting the case.
Same; Same; Appeals; Recent decisions showed that the
Supreme Court has allowed appeals by government parties.—Indeed,
recent decisions showed that this court has allowed appeals by
government parties. Notably, the government parties’ right to appeal
in these cases was not brought up as an issue by either of the parties.
Administrative Law; When the government office disciplines an
employee based on causes and procedures allowed by law, it
exercises its discretion.—The employer has the right “to select honest
and trustworthy employees.” When the government office disciplines
an employee based on causes and procedures allowed by law, it
exercises its discretion. This discretion is inherent in the constitutional
principle that “[p]ublic officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and
lead modest lives.” This is a principle that can be invoked by the public
as well as the government office employing the public officer. Here,
petitioner already decided to dismiss respondent for dishonesty.
Dishonesty is a serious offense that challenges the integrity of the
public servant charged. To bar a government office from appealing a
decision that lowers the penalty of the disciplined employee prevents
ADMELEC Cases
370
it from ensuring its mandate that the civil service employs only those
with the utmost sense of responsibility, integrity, loyalty, and
efficiency.
Same; Public Officers; Honesty and integrity are important traits
required of those in public service.—Honesty and integrity are
important traits required of those in public service. If all decisions by
quasi-judicial bodies modifying the penalty of dismissal were allowed
143
VOL. 726, JUNE 10, 2014 143
Light Rail transit Authority vs. Salvaña
to become final and unappealable, it would, in effect, show
tolerance to conduct unbecoming of a public servant. The quality of
civil service would erode, and the citizens would end up suffering for
it.
Same; Revised Rules on Administrative Cases in the Civil
Service; On November 18, 2011, the Revised Rules on Administrative
Cases in the Civil Service or RRACCS was promulgated. The Civil
Service Commission (CSC) modified the definition of a “party
adversely affected” for purposes of appeal.—On November 18, 2011,
the Revised Rules on Administrative Cases in the Civil Service or
RRACCS was promulgated. The Civil Service Commission modified
the definition of a “party adversely affected” for purposes of appeal.
Section 4. Definition of Terms.—. . . . k. PARTY ADVERSELY
AFFECTED refers to the respondent against whom a decision in an
administrative case has been rendered or to the disciplining
authority in an appeal from a decision reversing or modifying the
original decision.
Remedial Law; Procedural Rules and Technicalities;
Retroactivity of Laws; Procedural laws have retroactive application.—
Procedural laws have retroactive application. In Zulueta v. Asia
Brewery, 354 SCRA 100 (2001): As a general rule, laws have no
retroactive effect. But there are certain recognized exceptions, such
as when they are remedial or procedural in nature. This Court
explained this exception in the following language: It is true that under
the Civil Code of the Philippines, “(l)aws shall have no retroactive
effect, unless the contrary is provided. But there are settled exceptions
to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS. . . . . On
the other hand, remedial or procedural laws, i.e., those statutes

relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within
the legal meaning of a retrospective law, nor within the general rule
against the retrospective operation of statutes. Thus, procedural
laws may operate retroactively as to pending proceedings even
without express provision to that effect. Accordingly, rules of
procedure can apply to cases pending at the time of their
enactment. In fact, statutes regulating the procedure of the courts will
be applied on actions undetermined at the time of their
144
144 SUPREME COURT REPORTS
ANNOTATED
Light Rail transit Authority vs. Salvaña
effectivity. Procedural laws are retrospective in that sense and to
that extent.
Same; Same; Remedial rights are those rights granted by
remedial or procedural laws.—Remedial rights are those rights
granted by remedial or procedural laws. These are rights that only
operate to further the rules of procedure or to confirm vested rights.
As such, the retroactive application of remedial rights will not
adversely affect the vested rights of any person. Considering that the
right to appeal is a right remedial in nature, we find that Section 4,
paragraph (k), Rule I of the RACCS applies in this case. Petitioner,
therefore, had the right to appeal the decision of the Civil Service
Commission that modified its original decision of dismissal.
Administrative Law; Dishonesty; Resolution No. 06-0538
recognizes that dishonesty is a grave offense punishable by dismissal
from service; The resolution classifies dishonesty in three gradations:
(1) serious; (2) less serious; and (3) simple.—Resolution No. 06-0538
recognizes that dishonesty is a grave offense punishable by dismissal
from service. It, however, also recognizes that “some acts of
Dishonesty are not constitutive of an offense so grave as to warrant
the imposition of the penalty of dismissal from the service.”
Recognizing the attendant circumstances in the offense of dishonesty,
the Civil Service Commission issued parameters “in order to guide the
disciplining authority in charging the proper offense” and to impose the
proper penalty. The resolution classifies dishonesty in three
gradations: (1) serious; (2) less serious; and (3) simple. Serious
ADMELEC Cases
371
dishonesty is punishable by dismissal. Less serious dishonesty is
punishable by suspension for six months and one day to one year for
the first offense and dismissal for the second offense. Simple
dishonesty is punishable by suspension of one month and one day to
six months for the first offense, six months and one day to one year
for the second offense, and dismissal for the third offense.
Same; Public Officers; Leave of Absence; By law, all employees
in the civil service are entitled to leave of absence for a certain number
of days, with or without pay.—By law, all employees in the civil service
are entitled to leave of absence for a certain number of days, with or
without pay. Under Section 1, Rule XVI of the Omnibus Rules
Implementing Book V of the Administrative Code, government
employees are entitled to 15 days of sick leave annually with full pay.
145
VOL. 726, JUNE 10, 2014 145
Light Rail transit Authority vs. Salvaña
Same; Same; Same; Sick Leave; The grant of sick leave with
pay is an exception to the principle of “no work, no pay,” i.e.,
entitlement to compensation only upon actual service rendered.—The
grant of sick leave with pay is an exception to the principle of “no work,
no pay,” i.e., entitlement to compensation only upon actual service
rendered. As such, applications for leave must be properly filled out
and filed accordingly. Section 16, Rule XVI of the Omnibus Rules
Implementing Book V of the Administrative Code provides the rules
for an application for sick leave: SECTION 16. All applications for sick
leaves of absence for one full day or more shall be on the prescribed
form and shall be filed immediately upon the employee’s return from
such leave. Notice of absence, however, should be sent to the
immediate supervisor and/or to the office head. Application for sick
leave in excess of five days shall be accompanied by a proper medical
certificate.
Same; Same; Same; Same; Since her application for sick leave
was supported by a false medical certificate, it would have been
improperly filed, which made all of her absences during this period
unauthorized.—Respondent’s application for sick leave, if approved,
would allow her to be absent from work without any deductions from
her salary. Being a government employee, respondent would have
received her salaries coming from government funds. Since her
application for sick leave was supported by a false medical certificate,

it would have been improperly filed, which made all of her absences
during this period unauthorized. The receipt, therefore, of her salaries
during this period would be tantamount to causing damage or
prejudice to the government since she would have received
compensation she was not entitled to receive. This act of causing
damage or prejudice, however, cannot be classified as serious since
the information falsified had no direct relation to her employment.
Whether or not she was suffering from hypertension is a matter that
has no relation to the functions of her office. Given these
circumstances, the offense committed can be properly identified as
less serious dishonesty.
Same; Same; Resignation; Resignation from public office, to be
effective, requires the acceptance of the proper government
authority.—Resignation from public office, to be effective, requires the
acceptance of the proper government authority. In Republic v. Singun,
548 SCRA 361 (2008), this court stated: Resignation implies an
146
146 SUPREME COURT REPORTS
ANNOTATED
Light Rail transit Authority vs. Salvaña
expression of the incumbent in some form, express or implied,
of the intention to surrender, renounce, and relinquish the office and
the acceptance by competent and lawful authority. To constitute a
complete and operative resignation from public office, there
must be: (a) an intention to relinquish a part of the term; (b) an
act of relinquishment; and (c) an acceptance by the proper
authority . . . . . In our jurisdiction, acceptance is necessary for
resignation of a public officer to be operative and effective.
Without acceptance, resignation is nothing and the officer
remains in office. Resignation to be effective must be accepted by
competent authority, either in terms or by something tantamount to an
acceptance, such as the appointment of the successor. A public officer
cannot abandon his office before his resignation is accepted,
otherwise the officer is subject to the penal provisions of Article 238 of
the Revised Penal Code. The final or conclusive act of a resignation’s
acceptance is the notice of acceptance. The incumbent official would
not be in a position to determine the acceptance of his resignation
unless he had been duly notified therefor.
ADMELEC Cases
372
PETITION for review on certiorari of the decision and resolution of the
Civil Service Commission.
The facts are stated in the opinion of the Court.
The Government Corporate Counsel for petitioner.
Abayon, Silva, Salanatin & Associates for respondent.
LEONEN, J.:
An administrative agency has standing to appeal the Civil Service
Commission’s repeal or modification of its original decision. In such
instances, it is included in the concept of a “party adversely affected”
by a decision of the Civil Service Commission granted the statutory
right to appeal.
We are asked in this petition for review1 filed by the Light Rail
Transit Authority (LRTA), a government-owned and
_______________
1 Rollo, pp. 8-35.
147
VOL. 726, JUNE 10, 2014 147
Light Rail transit Authority vs. Salvaña
-controlled corporation, to modify the Civil Service Commission’s
finding that respondent was guilty only of simple dishonesty.
This case developed as follows:
On May 12, 2006, then Administrator of the Light Rail Transit
Authority, Melquiades Robles, issued Office Order No. 119, Series of
2006.2 The order revoked Atty. Aurora A. Salvaña’s designation as
Officer-in-Charge (OIC) of the LRTA Administrative Department. It
“direct[ed] her instead to handle special projects and perform such
other duties and functions as may be assigned to her” 3 by the
Administrator.
Atty. Salvaña was directed to comply with this office order through
a memorandum issued on May 22, 2006 by Atty. Elmo Stephen P.
Triste, the newly designated OIC of the administrative department.
Instead of complying, Salvaña questioned the order with the Office of
the President.4
In the interim, Salvaña applied for sick leave of absence on May
12, 2006 and from May 15 to May 31, 2006.5 In support of her
application, she submitted a medical certificate6 issued by Dr. Grace
Marie Blanco of the Veterans Memorial Medical Center (VMMC).

LRTA discovered that Dr. Blanco did not issue this medical
certificate. Dr. Blanco also denied having seen or treated Salvaña on
May 15, 2006, the date stated on her medical certificate.7
On June 23, 2006, Administrator Robles issued a notice of
preliminary investigation. The notice directed Salvaña to explain in
writing within 72 hours from her receipt of the
_______________
2 Id., at p. 61.
3 Id., at p. 13.
4 Id., at p. 14.
5 Id., at pp. 13-14.
6 Id., at p. 63.
7 Id., at p. 65.
148
148 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
notice “why no disciplinary action should be taken against [her]” 8 for
not complying with Office Order No. 119 and for submitting a falsified
medical certificate.9
Salvaña filed her explanation on June 30, 2006.10 She alleged that
as a member of the Bids and Awards Committee, she “refused to sign
a resolution”11 favoring a particular bidder. She alleged that Office
Order No. 119 was issued by Administrator Robles to express his “ire
and vindictiveness”12 over her refusal to sign.
The LRTA’s Fact-finding Committee found her explanation
unsatisfactory. On July 26, 2006, it issued a formal charge against her
for Dishonesty, Falsification of Official Document, Grave Misconduct,
Gross Insubordination, and Conduct Prejudicial to the Best Interest of
the Service.13
On August 5, 2006, “Salvaña tendered her irrevocable
resignation.”14 None of the pleadings alleged that this irrevocable
resignation was accepted, although the resolution of the Fact-finding
Committee alluded to Administrator Robles’ acceptance of the
resignation letter.
In the meantime, the investigation against Salvaña continued, and
the prosecution presented its witnesses.15 Salvaña “submitted a
manifestation dated September 6, 2006, stating that the Committee
was biased and that [Administrator] Robles was both the accuser and
the hearing officer.”16
ADMELEC Cases
373
On October 31, 2006, the Fact-finding Committee issued a
resolution “finding Salvaña guilty of all the charges against
_______________
8 Id., at p. 67.
9 Id., at pp. 66-67.
10 Id., at pp. 68-71.
11 Id., at p. 68.
12 Id.
13 Id., at pp. 74-75.
14 Id., at p. 17.
15 Id.
16 Id., citing Manifestation, Rollo, pp. 72-73.
149
VOL. 726, JUNE 10, 2014 149
Light Rail transit Authority vs. Salvaña
her and imposed [on] her the penalty of dismissal from . . . service with
all the accessory penalties.”17 The LRTA Board of Directors approved
the findings of the Fact-finding Committee.18
Salvaña appealed with the Civil Service Commission. “In her
appeal, [she] claimed that she was denied due process and that there
[was] no substantial evidence to support the charges against her.” 19
On July 18, 2007, the Civil Service Commission modified the
decision and issued Resolution No. 071364. The Civil Service
Commission found that Salvaña was guilty only of simple dishonesty.
She was meted a penalty of suspension for three months.20
LRTA moved for reconsideration21 of the resolution. This was
denied in a resolution dated May 26, 2008.22 LRTA then filed a petition
for review with the Court of Appeals.23
On November 11, 2009, the Court of Appeals 24 dismissed the
petition and affirmed the Civil Service Commission’s finding that
Salvaña was only guilty of simple dishonesty. The appellate court also
ruled that Administrator Robles had no standing to file a motion for
reconsideration before the Civil Service Commission because that
right only belonged to respondent in an administrative case.25 LRTA
moved for reconsideration26 of this decision but was denied.27
_______________
17 Id., citing Resolution, Rollo, pp. 76-88.
18 Id., at p. 90.
19 Id., at p. 17.
 374

20 Id., at pp. 91-100. 29 437 Phil. 289; 388 SCRA 485 (2002) [Per J. Panganiban, Third
21 Id., at pp. 101-129. Division].
22 Id., at pp. 130-137. 30 Rollo, pp. 21-23.
23 Id., at pp. 138-152. 31 Id., at pp. 23-31.
24 Per Sixth Division of the Court of Appeals. The decision was 32 Id., at pp. 253-255.
penned by Associate Justice Sixto C. Marella, Jr. and concurred in by 33 Id., at pp. 255-258.
Associate Justices Jose L. Sabio, Jr. and Arcangelita M. Romilla- 34 Id., at pp. 265-270.
Lontok. 35 Id., at p. 265, citing Secretary’s Certificate, Rollo, p. 60.
25 Rollo, pp. 37-57. 36 Id., at pp. 265-266.
26 Id., at pp. 227-234.
27 Id., at pp. 58-59. 151
VOL. 726, JUNE 10, 2014 151
150
Light Rail transit Authority vs. Salvaña
150 SUPREME COURT REPORTS ANNOTATED Both parties filed their respective memoranda before this court on
Light Rail transit Authority vs. Salvaña May 23, 201237 and December 6, 2012.38
Hence, LRTA filed this present petition. The legal issues that will determine the results of this case are:
Petitioner argues that it has the legal personality to appeal the 1. Whether the LRTA, as represented by its Administrator, has the
decision of the Civil Service Commission before the Court of standing to appeal the modification by the Civil Service Commission
Appeals.28 It cites Philippine National Bank v. Garcia29 as basis for its of its decision.
argument that it can be considered a “person adversely affected” 2. Whether Salvaña was correctly found guilty of simple dishonesty
under the pertinent rules and regulations on the appeal of only.
administrative cases.30 It also argues that respondent’s falsification of
the medical certificate accompanying her application for sick leave We grant the petition.
was not merely simple but serious dishonesty.31 The parties may appeal in
Respondent agrees with the ruling of the Court of Appeals that administrative cases involving
petitioner had no legal personality to file the appeal since it was not members of the civil service
the “person adversely affected” by the decision. She counters that It is settled that “[t]he right to appeal is not a natural right [or] a part
Administrator Robles had no authority to file the appeal since he was of due process; it is merely a statutory privilege, and may be exercised
unable to present a resolution from the Board of Directors authorizing only in the manner and in accordance with the provisions of the
him to do so.32 She also agrees with the Civil Service Commission’s law.”39 If it is not granted by the Constitution, it can only be availed of
finding that she was merely guilty of simple dishonesty. 33 when a statute provides for it.40 When made available by law or
In its reply,34 petitioner points out that it presented a secretary’s regulation, however, a person cannot be deprived of that right to
certificate35 dated July 17, 2008 and which it attached to the petitions appeal. Otherwise,
before the Civil Service Commission, Court of Appeals, and this court. _______________
It argues that the certificate authorizes the LRTA and its Administrator 37 Id., at pp. 272-294.
to file the necessary motion for reconsideration or appeal regarding 38 Id., at pp. 313-340.
this case, and this authorization has yet to be revoked.36 39 Bello v. Fernando, 114 Phil. 101, 103; 4 SCRA 135, 138 (1962)
_______________ [Per J. Reyes, J.B.L., En Banc], citing Aguilar v. Navarro, 55 Phil. 898
28 Id., at pp. 21-23. (1931) [Per J. Villamor, En Banc]; Santiago v. Valenzuela, 78 Phil.
397 (1947) [Per J. Feria, En Banc].

ADMELEC Cases

40 Spouses De la Cruz v. Ramiscal, 491 Phil. 62, 74; 450 SCRA
449, 457 (2005) [Per J. Chico-Nazario, Second Division]. See
also United States v. Yu Ten, 33 Phil. 122 (1916) [Per J. Johnson, En
Banc]; Phillips Seafood (Philippines) Corporation v. Board of
Investments, G.R. No. 175787, February 4, 2009, 578 SCRA 69, 76
[Per J. Tinga, Second Division]; Republic v. Court of Appeals, 372
Phil. 259; 313 SCRA 376 (1999) [Per J. Buena, Second Division].
152
152 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
there will be a violation of the constitutional requirement of due
process of law.
Article IX(B), Section 3 of the Constitution mandates that the Civil
Service Commission shall be “the central personnel agency of the
Government.”41 In line with the constitutionally enshrined policy that a
public office is a public trust, the Commission was tasked with the duty
“to set standards and to enforce the laws and rules governing the
selection, utilization, training, and discipline of civil servants.” 42
Civil servants enjoy security of tenure, and “[n]o officer or
employee in the Civil Service shall be suspended or dismissed except
for cause as provided by law and after due process.”43 Under Section
12, Chapter 3, Book V of the Administrative Code, it is the Civil Service
Commission that has the power to “[h]ear and decide administrative
cases instituted by or brought before it directly or on appeal.”
The grant of the right to appeal in administrative cases is not new.
In Republic Act No. 2260 or the Civil Service Law of 1959, appeals “by
the respondent”44 were allowed on “[t]he decision of the
Commissioner of Civil Service rendered in an administrative case
involving discipline of subordinate officers and employees.” 45
Presidential Decree No. 807, while retaining the right to appeal in
administrative cases, amended the phrasing of the party allowed to
appeal. Section 37, paragraph (a), and Section 39, paragraph (a), of
Presidential Decree No. 807 provide:
_______________
41 See also Mandate of Civil Service Commission in Presidential
Decree No. 807, otherwise known as the Civil Service Decree,
promulgated on October 6, 1975.
42 Pres. Dec. No. 807 (1975), Art. II, Sec. 2.
43 Pres. Dec. No. 807 (1975), Art. IX, Sec. 36.
ADMELEC Cases
375
44 Rep. Act No. 2260 (1959), Sec. 36.
45 Id.
153
VOL. 726, JUNE 10, 2014 153
Light Rail transit Authority vs. Salvaña
Sec. 37. Disciplinary Jurisdiction.—(a) The Commission shall
decide upon appeal all administrative 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.
Sec. 39. Appeals.—(a) Appeals, where allowable, shall be made
by the party adversely affected by the decision within fifteen days
from receipt of the decision unless a petition shall be decided within
fifteen days. (Emphasis supplied)
Additionally, Section 47, paragraph (1), and Section 49, paragraph
(1), of the Administrative Code provide:
SECTION 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.
SECTION 49. Appeals.—(1) Appeals, where allowable, shall be
made by the party adversely affected by the decision within fifteen
days from receipt of the decision unless a petition for reconsideration
is seasonably filed, which petition shall be decided within fifteen
days…. (Emphasis supplied)
The phrase, “person adversely affected,” was not defined in either
Presidential Decree No. 807 or the Administrative Code. This
prompted a series of cases46 providing the interpretation of this
phrase.
_______________
46 Paredes v. Civil Service Commission, G.R. Nos. 88177 and
89530, December 4, 1990, 192 SCRA 84, 98 [Per J. Paras, En
Banc]; Mendez v. Civil Service Commission, G.R. No. 95575,
December 23, 1991, 204 SCRA 965 [Per J. Paras, En Banc]; Magpale
v. Civil Service Commission, G.R. No. 97381, November 5, 1992, 215

SCRA 398 [Per J. Melo, En Banc]; Navarro v. Civil Service
Commission and
154
154 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
The first of these cases, Paredes v. Civil Service
Commission,47 declared:
Based on [Sections 37(a) and 39(a) of Presidential Decree No.
807], appeal to the Civil Service Commission in an administrative
case is extended to the party adversely affected by the decision,
that is, the person or the respondent employee who has been
meted out the 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. The
decision of the disciplining authority is even final and not appealable
to the Civil Service Commission in cases where the penalty imposed
is suspension for not more than thirty days or fine in an amount not
exceeding thirty days salary.48 (Emphasis supplied)
This ruling was repeated in Mendez v. Civil Service
Commission49 where this court stated that:
A cursory reading of P.D. 807, otherwise known as “The Philippine
Civil Service Law” shows that said law does not contemplate a review
of decisions exonerating officers or employees from administrative
charges.
....
_______________
Export Processing Zone Authority, G.R. Nos. 107370-71, September
16, 1993, 226 SCRA 522 [Per J. Bellosillo, En Banc]; University of the
Philippines v. Civil Service Commission, G.R. No. 108740, December
1, 1993, 228 SCRA 207 [Per J. Regalado, En Banc]; Del Castillo v.
Civil Service Commission, 311 Phil. 340; 241 SCRA 317 (1995)
[Per J. Kapunan, En Banc].
47 G.R. Nos. 88177 and 89530, December 4, 1990, 192 SCRA 84
[Per J. Paras, En Banc].
48 Id., at p. 98.
49 G.R. No. 95575, December 23, 1991, 204 SCRA 965
[Per J. Paras, En Banc].
ADMELEC Cases
376
155
VOL. 726, JUNE 10, 2014 155
Light Rail transit Authority vs. Salvaña
By inference or implication, the remedy of appeal may be
availed of only in a case where the respondent is found guilty of
the charges filed against him. But when the respondent is
exonerated of said charges, as in this case, there is no occasion
for appeal.50 (Emphasis supplied)
The same ratio would be reiterated and become the prevailing
doctrine on the matter in Magpale, Jr. v. Civil Service
Commission,51 Navarro v. Civil Service Commission and Export
Processing Zone,52 University of the Philippines v. Civil Service
Commission,53 and Del Castillo v. Civil Service Commission.54
In these cases, this court explained that the right to appeal being
merely a statutory privilege can only be availed of by the party
specified in the law. Since the law presumes that appeals will only be
made in decisions prescribing a penalty, this court concluded that the
only parties that will be adversely affected are the respondents that
are charged with administrative offenses. Since the right to appeal is
a remedial right that may only be granted by statute, a government
party cannot by implication assert that right as incidental to its power,
since the right to appeal does not form part of due process.55
_______________
50 Id., at pp. 965-968.
51 G.R. No. 97381, November 5, 1992, 215 SCRA 398
[Per J. Melo, En Banc].
52 G.R. Nos. 107370-71, September 16, 1993, 226 SCRA 522
[Per J. Bellosillo, En Banc].
53 G.R. No. 108740, December 1, 1993, 228 SCRA 207
[Per J. Regalado, En Banc].
54 311 Phil. 340; 241 SCRA 317 (1995) [Per J. Kapunan, En
Banc].
55 See Angara v. Electoral Commission, 63 Phil. 139 (1936)
[Per J. Laurel, En Banc] on its discussion of incidental powers by
government instrumentalities that are necessarily implied even in the
absence of a constitutional provision.
156

156 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
In effect, this court equated exonerations in administrative cases
to acquittals in criminal cases wherein the State or the complainant
would have no right to appeal.56 When the Civil Service Commission
enacted the Uniform Rules on Administrative Cases in the Civil
Service, or the URACCS, on September 27, 1999, it applied this
court’s definition. Thus, Section 2, paragraph (l), Rule I, and Section
38, Rule III of the URACCS defined “party adversely affected” as
follows:
Section 2. Coverage and Definition of Terms.—
....
(l) PARTY ADVERSELY AFFECTED refers to the respondent
against whom a decision in a disciplinary case has been rendered.
For some time, government parties were, thus, barred from
appealing exonerations of civil servants they had previously
sanctioned. It was not until the promulgation by this court of Civil
Service Commission v. Dacoycoy57 on April 29, 1999 that the issue
would be revisited.
Civil Service Commission v.
Dacoycoy and Philippine
National Bank v. Garcia
In Civil Service Commission v. Dacoycoy,58 an administrative
complaint for habitual drunkenness, misconduct, and nepotism was
filed against the Vocational School Administrator of Balicuatro College
of Arts and Trade in Allen, Northern
_______________
56 See People v. Velasco, 394 Phil. 517, 554; 340 SCRA 207, 238
(2000) [Per J. Bellosillo, En Banc] wherein this court stated:
“. . . . as mandated by our Constitution, statutes and cognate
jurisprudence, an acquittal is final and unappealable on the ground of
double jeopardy, whether it happens at the trial court level or before
the Court of Appeals.”
57 366 Phil. 86; 306 SCRA 425 (1999) [Per J. Pardo, En Banc].
58 Id.
157
VOL. 726, JUNE 10, 2014 157
Light Rail transit Authority vs. Salvaña
ADMELEC Cases
377
Samar. The Civil Service Commission found Dacoycoy guilty, but
the Court of Appeals overturned this finding and exonerated Dacoycoy
of all charges. The Civil Service Commission then appealed the ruling
of the appellate court. This court, in addressing the issue of the
Commission’s standing, stated that:
Subsequently, the Court of Appeals reversed the decision of the
Civil Service Commission and held respondent not guilty of nepotism.
Who now may appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent, who was declared not
guilty of the charge. Nor the complainant George P. Suan, who was
merely a witness for the government. Consequently, the Civil
Service Commission has become the party adversely affected by
such ruling, which seriously prejudices the civil service system.
Hence, as an aggrieved party, it may appeal the decision of the
Court of Appeals to the Supreme Court. By this ruling, we now
expressly abandon and overrule extant jurisprudence that “the
phrase ‘party adversely affected by the decision’ refers to the
government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal
from office” and not included are “cases where the penalty imposed is
suspension for not more than thirty (30) days or fine in an amount not
exceeding thirty days salary” or “when the respondent is exonerated
of the charges, there is no occasion for appeal.” In other words, we
overrule prior decisions holding that the Civil Service Law “does
not contemplate a review of decisions exonerating officers or
employees from administrative charges” enunciated in Paredes
v. Civil Service Commission; Mendez v. Civil Service
Commission; Magpale v. Civil Service Commission; Navarro v.
Civil Service Commission and Export Processing Zone Authority
158
158 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
and more recently Del Castillo v. Civil Service
Commission.59 (Emphasis supplied; citations omitted)
In his concurring opinion, then Chief Justice Puno summed up the
rationale for allowing government parties to appeal, thus:

In truth, the doctrine barring appeal is not categorically sanctioned
by the Civil Service Law. For what the law declares as “final” are
decisions of heads of agencies involving suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty (30) days
salary. But there is a clear policy reason for declaring these decisions
final. These decisions involve minor offenses. They are numerous for
they are the usual offenses committed by government officials and
employees. To allow their multiple level appeal will doubtless
overburden the quasi-judicial machinery of our administrative system
and defeat the expectation of fast and efficient action from these
administrative agencies. Nepotism, however, is not a petty offense.
Its deleterious effect on government cannot be overemphasized.
And it is a stubborn evil. The objective should be to eliminate
nepotic acts, hence, erroneous decisions allowing nepotism
cannot be given immunity from review, especially judicial review.
It is thus non sequitur to contend that since some decisions
exonerating public officials from minor offenses cannot be appealed,
ergo, even a decision acquitting a government official from a major
offense like nepotism cannot also be appealed.60 (Emphasis supplied)
The decision in Dacoycoy would be reiterated in 2002 when this
court promulgated Philippine National Bank v. Garcia.61 Philippine
National Bank categorically allowed the disciplin-
_______________
59 Id., at pp. 104-105; pp. 437-438.
60 Id., at pp. 116-117; p. 461.
61 437 Phil. 289; 388 SCRA 485 (2002) [Per J. Panganiban, Third
Division].
159
VOL. 726, JUNE 10, 2014 159
Light Rail transit Authority vs. Salvaña
ing authority to appeal the decision exonerating the disciplined
employee.
In that case, the bank charged Ricardo V. Garcia, Jr., one of its
check processors and cash representatives, with gross neglect of duty
when he lost P7 million in connection with his duties. Both the Civil
Service Commission and the Court of Appeals reversed the bank and
exonerated Garcia from all liability.
ADMELEC Cases
378
This court, however, upheld Philippine National Bank’s right to
appeal the case. Citing Dacoycoy, this court ruled:
Indeed, the battles against corruption, malfeasance and
misfeasance will be seriously undermined if we bar appeals of
exoneration. After all, administrative cases do not partake of the
nature of criminal actions, in which acquittals are final and
unappealable based on the constitutional proscription of double
jeopardy.
Furthermore, our new Constitution expressly expanded the
range and scope of judicial review. Thus, to prevent appeals of
administrative decisions except those initiated by employees will
effectively and pervertedly erode this constitutional grant.
Finally, the Court in Dacoycoy ruled that the CSC had acted well
within its rights in appealing the CA’s exoneration of the respondent
public official therein, because it has been mandated by the
Constitution to preserve and safeguard the integrity of our civil service
system. In the same light, herein Petitioner PNB has the standing to
appeal to the CA the exoneration of Respondent Garcia. After all, it is
the aggrieved party which has complained of his acts of dishonesty.
Besides, this Court has not lost sight of the fact that PNB was already
privatized on May 27, 1996. Should respondent be finally exonerated
indeed, it might then be incumbent upon petitioner to take him back
into its fold. It should therefore be allowed to appeal a decision that in
its view hampers
160
160 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
its right to select honest and trustworthy employees, so that it can
protect and preserve its name as a premier banking institution in our
country.62 (Emphasis supplied)
Thus, the Civil Service Commission issued Resolution No. 021600
published on December 29, 2002, which amended the URACCS, to
allow the disciplining authority to appeal the decision exonerating the
employee:
Section 2. Coverage and Definition of Terms.—
....
(l) PARTY ADVERSELY AFFECTED refers to the respondent
against whom a decision in a disciplinary case has been rendered or

to the disciplining authority in an appeal from a decision exonerating
the said employee.
Subsequent decisions continued to reiterate the rulings
in Dacoycoy and Philippine National Bank.
In Constantino-David v. Pangandaman-Gania,63 this court
explained the rationale of allowing the Civil Service Commission to
appeal decisions of exonerations as follows:
That the CSC may appeal from an adverse decision of the Court
of Appeals reversing or modifying its resolutions which may seriously
prejudice the civil service system is beyond doubt. In Civil Service
Commission v. Dacoycoy[,] this Court held that the CSC may become
the party adversely affected by such ruling and the aggrieved party
who may appeal the decision to this Court.
The situation where the CSC’s participation is beneficial and
indispensable often involves complaints for administrative offenses,
such as neglect of duty, being
_______________
62 Id., at pp. 295-296; pp. 491-492, citing Tecson v.
Sandiganbayan, 376 Phil. 191; 318 SCRA 80 (1999)
[Per J. Quisumbing, Second Division].
63 456 Phil. 273; 409 SCRA 80 (2003) [Per J. Bellosillo, En Banc].
161
VOL. 726, JUNE 10, 2014 161
Light Rail transit Authority vs. Salvaña
notoriously undesirable, inefficiency and incompetence in the
performance of official duties, and the like, where the complainant is
more often than not acting merely as a witness for the government
which is the real party injured by the illicit act. In cases of this nature,
a ruling of the Court of Appeals favorable to the respondent employee
is understandably adverse to the government, and unavoidably the
CSC as representative of the government may appeal the decision to
this Court to protect the integrity of the civil service system.
The CSC may also seek a review of the decisions of the Court of
Appeals that are detrimental to its constitutional mandate as the
central personnel agency of the government tasked to establish a
career service, adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness and courtesy in the civil
ADMELEC Cases
379
service, 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. Nonetheless, the right of the CSC to appeal the
adverse decision does not preclude the private complainant in
appropriate cases from similarly elevating the decision for review. 64
Then in Civil Service Commission v. Gentallan,65 this court
declared:
At the outset, it should be noted that the Civil Service Commission,
under the Constitution, is the central personnel agency of the
government charged with the duty of determining questions of
qualifications of merit and fitness of those appointed to the civil
service. Thus, the CSC, as an institution whose primary concern is the
effectiveness of the civil service system, has the standing
_______________
64 Id., at pp. 291-292; pp. 90-91, citing Philippine National Bank v.
Garcia, 437 Phil. 289; 388 SCRA 485 (2002) [Per J. Panganiban,
Third Division].
65 497 Phil. 594; 458 SCRA 478 (2005) [Per J. Quisumbing, En
Banc].
162
162 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
to appeal a decision which adversely affects the civil service. We hold,
at this juncture, that CSC has the standing to appeal and/or to file its
motion for reconsideration.66
The right to appeal by government parties was not limited to the
Civil Service Commission.
In Pastor v. City of Pasig,67 this court ruled that the City of Pasig
had standing to appeal the decision of the Civil Service Commission
reinstating a city employee to her former position, despite the city
government having reassigned her to another unit.
In Geronga v. Varela,68 this court ruled that the Mayor of Cadiz City
had the right to file a motion for reconsideration of a decision by the
Civil Service Commission exonerating a city employee on the ground
that “as the appointing and disciplining authority, [he] is a real party in
interest.”69

In Department of Education v. Cuanan,70 this court ruled that the
Department of Education “qualifie[d] as a party adversely affected by
the judgment, who can file an appeal of a judgment of exoneration in
an administrative case.”71
_______________
66 Id., at pp. 600-601; p. 285, citing Civil Service Commission v.
Tinaya, 491 Phil. 729, 735; 451 SCRA 560, 565 (2005)
[Per J. Sandoval-Gutierrez, En Banc]; Lazo v. Civil Service
Commission, G.R. No. 108824, September 14, 1994, 236 SCRA 469,
472 [Per J. Mendoza, En Banc]; See also Abella, Jr. v. Civil Service
Commission, 485 Phil. 182, 195-196; 442 SCRA 507, 526 (2004)
[Per J. Panganiban, En Banc].
67 431 Phil. 843; 382 SCRA 232 (2002) [Per J. Mendoza, En
Banc].
68 570 Phil. 39; 546 SCRA 429 (2008) [Per J. Austria-
Martinez, En Banc].
69 Id., at p. 49; p. 440.
70 594 Phil. 451; 574 SCRA 41 (2008) [Per J. Austria-
Martinez, En Banc].
71 Id., at p. 459; p. 47.
163
VOL. 726, JUNE 10, 2014 163
Light Rail transit Authority vs. Salvaña
There are, however, cases, which sought to qualify this right to
appeal.
In National Appellate Board v. Mamauag,72 an administrative
complaint for grave misconduct was filed by Quezon City Judge
Adoracion G. Angeles against several members of the Philippine
National Police (PNP). The Central Police District Command (CPDC)
of Quezon City, upon investigation, dismissed the complaint.
Dissatisfied, Judge Angeles moved for a reinvestigation by then PNP
Chief Recaredo Sarmiento II.
PNP Chief Sarmiento issued a decision finding the accused police
officers guilty of the offenses charged. Some were meted the penalty
of suspension while others were dismissed from service. Upon motion
for reconsideration by Judge Angeles, Chief Sarmiento modified his
ruling and ordered the dismissal of the suspended police officers.
One of the officers, Police Inspector John Mamauag, appealed the
decision with the National Appellate Board of the National Police
ADMELEC Cases
380
Commission. The National Appellate Board, however, denied the
appeal. Mamauag appealed the denial with the Court of Appeals. The
Court of Appeals reversed the decision of the National Appellate
Board and ruled that it was the Philippine National Police, not Judge
Angeles, which had the right to appeal the decision of PNP Chief
Sarmiento, as it was the party adversely affected. The National
Appellate Board then appealed this decision with this court.
This court, while citing Dacoycoy, declared that Judge Angeles, as
complainant, had no right to appeal the dismissal by CPDC of the
complaint against Mamauag. It qualified the right of government
agencies to appeal by specifying the circumstances by which the right
may be given, thus:
However, the government party that can appeal is not the
disciplining authority or tribunal
_______________
72 504 Phil. 186; 466 SCRA 624 (2005) [Per J. Carpio, First
Division].
164
164 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
which previously heard the case and imposed the penalty of
demotion or dismissal from the service. The government party
appealing must be one that is prosecuting the administrative
case against the respondent. Otherwise, an anomalous situation will
result where the disciplining authority or tribunal hearing the case,
instead of being impartial and detached, becomes an active
participant in prosecuting the respondent. Thus, in Mathay, Jr. v. Court
of Appeals, decided after Dacoycoy, the Court declared:
To be sure, when the resolutions of the Civil Service Commission
were brought before the Court of Appeals, the Civil Service
Commission was included only as a nominal party. As a quasi-judicial
body, the Civil Service Commission can be likened to a judge who
should “detach himself from cases where his decision is appealed to
a higher court for review.”
In instituting G.R. No. 126354, the Civil Service Commission
dangerously departed from its role as adjudicator and became an
advocate. Its mandated function is to “hear and decide administrative
cases instituted by or brought before it directly or on appeal, including

contested appointments and to review decisions and actions of its
offices and agencies,” not to litigate.73 (Emphasis supplied)
The ruling in National Appellate Board was applied in Montoya v.
Varilla,74 Pleyto v. PNP-CIDG,75 and Ombudsman v. Liggayu.76
_______________
73 Id., at p. 200; pp. 641-642.
74 595 Phil. 507; 574 SCRA 831 (2008) [Per J. Chico-Nazario, En
Banc].
75 563 Phil. 842; 538 SCRA 534 (2007) [Per J. Chico-Nazario,
Third Division].
165
VOL. 726, JUNE 10, 2014 165
Light Rail transit Authority vs. Salvaña
The present rule is that a government party is a “party adversely
affected” for purposes of appeal provided that the government party
that has a right to appeal must be the office or agency prosecuting the
case.
Despite the limitation on the government party’s right to appeal,
this court has consistently upheld that right in Dacoycoy. In Civil
Service Commission v. Almojuela,77 we stated that:
More than ten years have passed since the Court first recognized
in Dacoycoy the CSC’s standing to appeal the CA’s decisions
reversing or modifying its resolutions seriously prejudicial to the civil
service system. Since then, the ruling in Dacoycoy has been
subjected to clarifications and qualifications but the doctrine has
remained the same: the CSC has standing as a real party in interest
and can appeal the CA’s decisions modifying or reversing the CSC’s
rulings, when the CA action would have an adverse impact on the
integrity of the civil service. As the government’s central personnel
agency, the CSC is tasked to establish a career service and promote
morale, efficiency, integrity, responsiveness, progressiveness, and
courtesy in the civil service; it has a stake in ensuring that the proper
disciplinary action is imposed on an erring public employee, and this
stake would be adversely affected by a ruling absolving or lightening
the CSC-imposed penalty. Further, a decision that declares a public
employee not guilty of the charge against him would have no other
appellant than the CSC. To be sure, it would not be appealed by the
public employee who has been absolved of the charge against him;
ADMELEC Cases
381
neither would the complainant appeal the decision, as he acted merely
as a witness for the government. We thus find no reason
_______________
76 G.R. No. 174297, June 20, 2012, 674 SCRA 134
[Per J. Peralta, Third Division].
77 G.R. No. 194368, April 2, 2013, 694 SCRA 441
[Per J. Brion, En Banc].
166
166 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
to disturb the settled Dacoycoy doctrine.78 (Citations omitted)
Indeed, recent decisions showed that this court has allowed
appeals by government parties. Notably, the government parties’ right
to appeal in these cases was not brought up as an issue by either of
the parties.
In Civil Service Commission v. Yu,79 this court allowed the Civil
Service Commission to appeal the Court of Appeals’ decision granting
the reinstatement of a government employee whose appointment had
been revoked by the Commission.
In National Power Corporation v. Civil Service Commission and
Tanfelix,80 the National Power Corporation had previously filed an
administrative complaint against one of its employees, Rodrigo
Tanfelix, resulting in his dismissal from service. When the Civil Service
Commission exonerated Tanfelix and the Court of Appeals affirmed
the exoneration, the National Power Corporation was allowed to
appeal.
These cases, however, allowed the disciplining authority to appeal
only from a decision exonerating the said employee. In this case,
respondent was not exonerated; she was found guilty, but the finding
was modified. This court previously stated that:
If the administrative offense found to have been actually committed is
of lesser gravity than the offense charged, the employee cannot be
considered exonerated if the factual premise for the imposition of the
lesser penalty remains the same.81
_______________
78 Id., at pp. 465-466.

79 G.R. No. 189041, July 31, 2012, 678 SCRA 39 [Per J. Perlas-
Bernabe, En Banc].
80 G.R. No. 152093, January 24, 2012, 663 SCRA 492
[Per J. Abad, En Banc].
81 Civil Service Commission v. Cruz, G.R. No. 187858, August 9,
2011, 655 SCRA 214, 234 [Per J. Brion, En Banc].
167
VOL. 726, JUNE 10, 2014 167
Light Rail transit Authority vs. Salvaña
Dacoycoy, Philippine National Bank, and the URACCS failed to
contemplate a situation where the Civil Service Commission modified
the penalty from dismissal to suspension. The erring civil servant was
not exonerated, and the finding of guilt still stood. In these situations,
the disciplinary authority should be allowed to appeal the modification
of the decision.
The LRTA had standing to
appeal the modification by
the Civil Service Commis-
sion of its decision
The employer has the right “to select honest and trustworthy
employees.”82 When the government office disciplines an employee
based on causes and procedures allowed by law, it exercises its
discretion. This discretion is inherent in the constitutional principle that
“[p]ublic officers and employees must, at all times, be accountable to
the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency; act with patriotism and justice, and lead modest
lives.”83 This is a principle that can be invoked by the public as well as
the government office employing the public officer.
Here, petitioner already decided to dismiss respondent for
dishonesty. Dishonesty is a serious offense that challenges the
integrity of the public servant charged. To bar a government office
from appealing a decision that lowers the penalty of the disciplined
employee prevents it from ensuring its mandate that the civil service
employs only those with the utmost sense of responsibility, integrity,
loyalty, and efficiency.
Honesty and integrity are important traits required of those in
public service. If all decisions by quasi-judicial bodies
_______________
ADMELEC Cases
382
82 Philippine National Bank v. Garcia, 437 Phil. 289, 296; 388
SCRA 485, 492 (2002) [Per J. Panganiban, Third Division].
83 Const. (1987), Art. XI, Sec. 1.
168
168 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
modifying the penalty of dismissal were allowed to become final and
unappealable, it would, in effect, show tolerance to conduct
unbecoming of a public servant. The quality of civil service would
erode, and the citizens would end up suffering for it.
During the pendency of this decision, or on November 18, 2011,
the Revised Rules on Administrative Cases in the Civil Service or
RRACCS was promulgated. The Civil Service Commission modified
the definition of a “party adversely affected” for purposes of appeal.
Section 4. Definition of Terms.—
....
k. PARTY ADVERSELY AFFECTED refers to the respondent
against whom a decision in an administrative case has been rendered
or to the disciplining authority in an appeal from a decision
reversing or modifying the original decision. (Emphasis supplied)
Procedural laws have retroactive application. In Zulueta v. Asia
Brewery:84
As a general rule, laws have no retroactive effect. But there are
certain recognized exceptions, such as when they are remedial or
procedural in nature. This Court explained this exception in the
following language:
It is true that under the Civil Code of the Philippines, “(l)aws shall
have no retroactive effect, unless the contrary is provided. But there
are settled exceptions to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW
RIGHTS.
....
_______________
84 406 Phil. 543; 354 SCRA 100 (2001) [Per J. Panganiban, Third
Division].
169

VOL. 726, JUNE 10, 2014 169
Light Rail transit Authority vs. Salvaña
On the other hand, remedial or procedural laws, i.e., those statutes
relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within
the legal meaning of a retrospective law, nor within the general rule
against the retrospective operation of statutes.
Thus, procedural laws may operate retroactively as to
pending proceedings even without express provision to that
effect. Accordingly, rules of procedure can apply to cases
pending at the time of their enactment. In fact, statutes regulating
the procedure of the courts will be applied on actions undetermined at
the time of their effectivity. Procedural laws are retrospective in that
sense and to that extent.85 (Emphasis supplied)
Remedial rights are those rights granted by remedial or procedural
laws. These are rights that only operate to further the rules of
procedure or to confirm vested rights. As such, the retroactive
application of remedial rights will not adversely affect the vested rights
of any person. Considering that the
_______________
85 Id., at p. 551; pp. 106-107, citing Frivaldo v. Commission on
Elections, 327 Phil. 521, 754-755; 257 SCRA 727, 754-755 (1996)
[Per J. Panganiban, En Banc]; Hosana v. Diomano, 56 Phil. 741
(1927) [Per J. Villa-Real, En Banc]; Guevarra v. Laico, 64 Phil. 144
(1937) [Per J. Villa-Real, En Banc]; China Insurance & Surety Co. v.
Far Eastern Surety & Insurance Co., 63 Phil. 320 (1936)
[Per J. Recto, En Banc]; Sevilla v. Tolentino, 66 Phil. 196 (1938)
[Per J. Abad Santos, En Banc]; Tolentino v. Alzate, 98 Phil. 781
(1956) [Per J. Bautista Angelo, En Banc]; Gregorio v. Court of
Appeals, 135 Phil. 224; 26 SCRA 229 (1968) [Per J. Fernando, En
Banc]; Del Rosario v. Court of Appeals, 311 Phil. 589; 241 SCRA 519
(1995) [Per J. Puno, Second Division]; MRCA, Inc. v. Court of
Appeals, 259 Phil. 832; 180 SCRA 344 (1989) [Per J. Griño-Aquino,
First Division]; People v. Sumilang, 77 Phil. 764 (1946)
[Per J. Feria, En Banc].
170
170 SUPREME COURT REPORTS ANNOTATED
ADMELEC Cases
383
Light Rail transit Authority vs. Salvaña
right to appeal is a right remedial in nature, we find that Section 4,
paragraph (k), Rule I of the RACCS applies in this case. Petitioner,
therefore, had the right to appeal the decision of the Civil Service
Commission that modified its original decision of dismissal.
Recent decisions implied the retroactive application of this rule.
While the right of government parties to appeal was not an issue, this
court gave due course to the appeals filed by government agencies
before the promulgation of the Revised Rules on Administrative Cases
in the Civil Service.
In Civil Service Commission v. Clave,86 the Government Service
and Insurance System (GSIS) found one of its employees, Aurora M.
Clave, guilty of simple neglect of duty. The Civil Service Commission
affirmed the GSIS’s findings. The Court of Appeals, however, while
affirming the Civil Service Commission, reduced the penalty. Both the
GSIS and the Civil Service Commission were given standing to appeal
the decision of the Court of Appeals.
In GSIS v. Chua,87 the GSIS dismissed Heidi R. Chua for grave
misconduct, dishonesty, and conduct prejudicial to the best interest of
service. The Civil Service Commission affirmed the GSIS, but the
Court of Appeals, while affirming the findings of the Commission,
modified the penalty to simple misconduct. The GSIS was then
allowed to bring an appeal of the modification of the penalty with this
court.
Thus, we now hold that the parties adversely affected by a decision
in an administrative case who may appeal shall include the disciplining
authority whose decision dismissing the employee was either
overturned or modified by the Civil Service Commission.
_______________
86 G.R. Nos. 194645 and 194665, March 6, 2012, 667 SCRA 556
[Per Curiam, En Banc].
87 G.R. No. 202914, September 26, 2012, 682 SCRA 118
[Per J. Brion, Second Division].
171
VOL. 726, JUNE 10, 2014 171
Light Rail transit Authority vs. Salvaña
The offense committed was
less serious dishonesty, not
simple dishonesty

Dishonesty has been defined “as the ‘disposition to lie, cheat,
deceive, or defraud; untrustworthiness, lack of integrity’ . . . .” 88 Since
the utmost integrity is expected of public servants, its absence is not
only frowned upon but punished severely.
Section 52, Rule IV of the URACCS provides:
Section 52. Classification of Offenses.—Administrative offenses
with corresponding penalties are classified into grave, less grave or
light, depending on their gravity or depravity and effects on the
government service.
A. The following are grave offenses with their corresponding
penalties:
1. Dishonesty — 1st Offense — Dismissal
....
In Remolona v. Civil Service Commission,89 this court explained
the rationale for the severity of the penalty:
It cannot be denied that dishonesty is considered a grave offense
punishable by dismissal for the first offense under Section 23, Rule
XIV of the Rules Implementing Book V of Executive Order No. 292.
And the rule is that dishonesty, in order to warrant dismissal, need not
be committed in the course of the performance of duty by the person
charged. The rationale for the rule is that if a government officer
or employee is dishonest or is guilty of oppression or grave
misconduct, even if
_______________
88 Office of the Ombudsman v. Torres, 567 Phil. 46, 57; 543 SCRA
46, 57 (2008) [Per J. Nachura, Third Division], citing Black’s Law
Dictionary, 6th ed. (1990).
89 414 Phil. 590; 362 SCRA 304 (2001) [Per J. Puno, En Banc].
172
172 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
said defects of character are not connected with his office, they
affect his right to continue in office. The Government cannot
tolerate in its service a dishonest official, even if he performs his
duties correctly and well, because by reason of his government
position, he is given more and ample opportunity to commit acts
ADMELEC Cases
384
of dishonesty against his fellow men, even against offices and
entities of the government other than the office where he is
employed; and by reason of his office, he enjoys and possesses
a certain influence and power which renders the victims of his
grave misconduct, oppression and dishonesty less disposed and
prepared to resist and to counteract his evil acts and actuations.
The private life of an employee cannot be segregated from his public
life. Dishonesty inevitably reflects on the fitness of the officer or
employee to continue in office and the discipline and morale of the
service.90 (Emphasis supplied)
However, on April 4, 2006, the Civil Service Commission issued
Resolution No. 06-0538 or the Rules on the Administrative Offense of
Dishonesty.
Resolution No. 06-0538 recognizes that dishonesty is a grave
offense punishable by dismissal from service.91 It, however, also
recognizes that “some acts of Dishonesty are not constitutive of an
offense so grave as to warrant the imposition of the penalty of
dismissal from the service.”92
Recognizing the attendant circumstances in the offense of
dishonesty, the Civil Service Commission issued parameters
_______________
90 Id., at pp. 600-601; p. 313.
91 Civil Service Commission, Resolution No. 06-0538 (2006),
Third Whereas Clause.
92 Civil Service Commission, Resolution No. 06-0538 (2006),
Fourth Whereas Clause.
173
VOL. 726, JUNE 10, 2014 173
Light Rail transit Authority vs. Salvaña
“in order to guide the disciplining authority in charging the proper
offense”93 and to impose the proper penalty.
The resolution classifies dishonesty in three gradations: (1)
serious; (2) less serious; and (3) simple. Serious dishonesty is
punishable by dismissal.94 Less serious dishonesty is punishable by
suspension for six months and one day to one year for the first offense
and dismissal for the second offense.95 Simple dishonesty is
punishable by suspension of one month and one day to six months for

the first offense, six months and one day to one year for the second
offense, and dismissal for the third offense.96
The medical certificate respondent submitted to support her
application for sick leave was falsified. The question remains as to
whether this act could be considered serious dishonesty, less serious
dishonesty, or simple dishonesty.
According to the Civil Service Commission’s finding in its
resolution:
In the instant case, the prosecution was able to establish that the
medical certificate submitted by Salvaña was spurious or not genuine
as the physician-signatory therein, Dr. Blanco[,] testified that she did
not examine/treat the appellant nor did she issue a medical certificate
on May 15, 2006 since she was on sick leave of absence on that
particular day. Worthy [of] mention is that the appellant never bothered
to submit any evidence, documentary or otherwise, to rebut the
testimony of Blanco.
_______________
93 Civil Service Commission, Resolution No. 06-0538 (2006)
94 Civil Service Commission, Resolution No. 06-0538 (2006), Sec.
2(a).
95 Civil Service Commission, Resolution No. 06-0538 (2006), Sec.
2(b).
96 Civil Service Commission, Resolution No. 06-0538 (2006), Sec.
2(c).
174
174 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
Thus, the Commission rules and so holds that the appellant is
liable for Dishonesty but applying the aforementioned CSC Resolution
No. 06-0538, her dishonest act would be classified only as Simple
Dishonesty as the same did not cause damage or prejudice to the
government and had no direct relation to or did not involve the
duties and responsibilities of the appellant. The same is true with
the falsification she committed, where the information falsified
was not related to her employment.97 (Emphasis supplied)
In Cuerdo v. Commission on Audit,98 this court previously ruled
that “it is the general policy of this Court to sustain the decisions of
ADMELEC Cases
385
administrative authorities ‘not only on the basis of the doctrine of
separation of powers but also for their presumed knowledgeability and
even expertise in the laws they are entrusted to enforce.’”99 The same
case also stated that:
. . . . we reaffirmed the oft-repeated rule that findings of
administrative agencies are generally accorded not only respect but
also finality when the decision and order . . . are not tainted with
unfairness or arbitrariness that would amount to abuse of discretion or
lack of jurisdiction. The findings of facts must be respected, so long as
they are supported by substantial evidence even if not overwhelming
or preponderant.100
Petitioner insists that respondent committed serious dishonesty
when she submitted the falsified medical certificate. Under Section 3
of Resolution No. 06-0538, serious dishonesty comprises the following
acts:
_______________
97 Rollo, p. 99, Civil Service Commission Resolution No. 071364
(2007).
98 248 Phil. 886; 166 SCRA 657 (1988) [Per J. Sarmiento, En
Banc].
99 Id., at p. 891; p. 661.
100 Id.
175
VOL. 726, JUNE 10, 2014 175
Light Rail transit Authority vs. Salvaña
Section 3. Serious Dishonesty.—The presence of any one of the
following attendant circumstances in the commission of the dishonest
act would constitute the offense of Serious Dishonesty:
a. The dishonest act causes serious damage and grave prejudice
to the government.
b. The respondent gravely abused his authority in order to commit
the dishonest act.
c. Where the respondent is an accountable officer, the dishonest
act directly involves property, accountable forms or money for
which he is directly accountable and the respondent shows an
intent to commit material gain, graft and corruption.

d. The dishonest act exhibits moral depravity on the part of the
respondent.
e. The respondent employed fraud and/or falsification of
official documents in the commission of the dishonest act
related to his/her employment.
f. The dishonest act was committed several times or in various
occasions.
g. The dishonest act involves a Civil Service examination,
irregularity or fake Civil Service eligibility such as, but not limited
to, impersonation, cheating and use of crib sheets.
h. Other analogous circumstances. (Emphasis supplied)
Simple dishonesty, on the other hand, comprises the following
offenses:
Section 5. The presence of any of the following attendant
circumstances in the commission of the dishonest act would constitute
the offense of Simple Dishonesty:
a. The dishonest act did not cause damage or prejudice to the
government.176
176 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
b. The dishonest act had no direct relation to or does not
involve the duties and responsibilities of the respondent.
c. In falsification of any official document, where the
information falsified is not related to his/her employment.
d. That the dishonest act did not result in any gain or benefit
to the offender.
e. Other analogous circumstances. (Emphasis supplied)
This court previously ruled that “[f]alsification of an official
document, as an administrative offense, is knowingly making false
statements in official or public documents.”101
Respondent, in her defense, states that she merely relied on her
Health Maintenance Organization’s (HMO) advice that it was going to
issue her a medical certificate after she had gone to the hospital
complaining of hypertension.102 She maintains that she did not know
that her medical certificate was falsified. We do not find this defense
credible.
ADMELEC Cases
386
Respondent knew that she was not examined by Dr. Blanco, the
medical certificate’s signatory. She knew that she would not be able
to fully attest to the truthfulness of the information in the certificate.
Despite this, she still submitted the certificate in support of her
application for leave.
The Civil Service Commission, however, found that the medical
certificate was falsified. Dr. Blanco repudiated the certificate.
Respondent did not present any evidence to defend its validity. Her
application for sick leave, therefore, should not have been granted
since it was unaccompanied by the
_______________
101 Office of the Ombudsman v. Torres, 567 Phil. 46, 58; 543
SCRA 46, 57 (2008) [Per J. Nachura, Third Division], citing Civil
Service Commission, Resolution No. 991936 (1999), Rule IV, Sec.
52(A)(1) and (6).
102 Rollo, p. 318.
177
VOL. 726, JUNE 10, 2014 177
Light Rail transit Authority vs. Salvaña
proper documents. The Commission correctly found respondent guilty
of dishonesty.
However, it would be wrong to classify this offense as simple
dishonesty.
By law, all employees in the civil service are entitled to leave of
absence for a certain number of days, with or without pay.103 Under
Section 1, Rule XVI of the Omnibus Rules Implementing Book V of the
Administrative Code, government employees are entitled to 15 days
of sick leave annually with full pay.
The grant of sick leave with pay is an exception to the principle of
“no work, no pay,” i.e., entitlement to compensation only upon actual
service rendered. As such, applications for leave must be properly
filled out and filed accordingly. Section 16, Rule XVI of the Omnibus
Rules Implementing Book V of the Administrative Code provides the
rules for an application for sick leave:
SECTION 16. All applications for sick leaves of absence for one full
day or more shall be on the prescribed form and shall be filed
immediately upon the employee’s return from such leave. Notice of
absence, however, should be sent to the immediate supervisor and/or

to the office head. Application for sick leave in excess of five days shall
be accompanied by a proper medical certificate.
Respondent’s application for sick leave, if approved, would allow
her to be absent from work without any deductions from her salary.
Being a government employee, respondent would have received her
salaries coming from government funds.
Since her application for sick leave was supported by a false
medical certificate, it would have been improperly filed,
_______________
103 ADMINISTRATIVE CODE, Book V, Title I, Subtitle A, Chapter 9,
Sec. 60.
178
178 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
which made all of her absences during this period unauthorized. The
receipt, therefore, of her salaries during this period would be
tantamount to causing damage or prejudice to the government since
she would have received compensation she was not entitled to
receive.
This act of causing damage or prejudice, however, cannot be
classified as serious since the information falsified had no direct
relation to her employment. Whether or not she was suffering from
hypertension is a matter that has no relation to the functions of her
office.
Given these circumstances, the offense committed can be properly
identified as less serious dishonesty. Under Section 4 of Resolution
No. 06-0538, less serious dishonesty is classified by the following
acts:
Section 4. The presence of any one of the following attendant
circumstances in the commission of the dishonest act would constitute
the offense of Less Serious Dishonesty:
a. The dishonest act caused damage and prejudice to the
government which is not so serious as to qualify under the
immediately preceding classification.
b. The respondent did not take advantage of his/her position in
committing the dishonest act.
c. Other analogous circumstances. (Emphasis supplied)
ADMELEC Cases
387
We hold, therefore, that respondent Atty. Aurora A. Salvaña is
guilty of less serious dishonesty.
A final note
The records showed that respondent tendered her irrevocable
resignation on August 5, 2006. Petitioner’s acceptance of
respondent’s resignation was not mentioned in any of the pleadings.
However, the resolution by the Fact-finding Com-
179
VOL. 726, JUNE 10, 2014 179
Light Rail transit Authority vs. Salvaña
mittee stated that “[o]n 16 August 2006, the Office of the Administrator
received the resignation.”104 On the issue of whether respondent’s
resignation mooted its proceedings, it concluded that:
[I]n the response of the Administrator to the letter of resignation
filed by Respondent there was no unconditional acceptance of the
same. In fact it was specified therein that her resignation is “without
prejudice to any appropriate action on any malfeasance or
misfeasance committed during her tenure[.”] There can [sic] be no
other conclusion from the above that her resignation does not prevent
the administration from proceeding with any charge/s appropriate
under the circumstances.105 (Emphasis in the original)
Resignation from public office, to be effective, requires the
acceptance of the proper government authority. In Republic v.
Singun,106 this court stated:
Resignation implies an expression of the incumbent in some form,
express or implied, of the intention to surrender, renounce, and
relinquish the office and the acceptance by competent and lawful
authority. To constitute a complete and operative resignation
from public office, there must be: (a) an intention to relinquish a
part of the term; (b) an act of relinquishment; and (c) an
acceptance by the proper authority.
....
In our jurisdiction, acceptance is necessary for resignation of
a public officer to be operative and effective. Without acceptance,
resignation is nothing and the officer remains in office.
Resignation to be effective must be accepted by competent au-
_______________
104 Rollo, p. 78.
105 Id., at p. 84.

106 572 Phil. 140; 548 SCRA 361 (2008) [Per J. Carpio, First
Division].
180
180 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
thority, either in terms or by something tantamount to an acceptance,
such as the appointment of the successor. A public officer cannot
abandon his office before his resignation is accepted, otherwise the
officer is subject to the penal provisions of Article 238 of the Revised
Penal Code. The final or conclusive act of a resignation’s acceptance
is the notice of acceptance. The incumbent official would not be in a
position to determine the acceptance of his resignation unless he had
been duly notified therefor.107 (Emphasis supplied)
If there was evidence to show that petitioner did not, in fact, accept
respondent’s resignation, her resignation would have been ineffective.
Respondent’s continued absence from her post would have been
deemed abandonment from her office, of which she could be criminally
charged.
Although the response of Administrator Robles was not attached
to the record, it can be concluded from the resolution of the Fact-
finding Committee that he accepted the resignation, albeit with the
qualification that it be “without prejudice to any appropriate action on
any malfeasance or misfeasance committed during her tenure.” 108
The qualified acceptance of Administrator Robles, however, did
not affect the validity of respondent’s resignation. Section 1, Rule XII
of the Civil Service Commission Memorandum Circular No. 40, Series
of 1998, as amended by Civil Service Commission Memorandum
Circular No. 15, Series of 1999, requires:
_______________
107 Id., at pp. 150-151; pp. 369-370, citing Gamboa v. Court of
Appeals, 194 Phil. 624; 108 SCRA 1 (1981) [Per J. Guerrero, First
Division]; Reyes v. Atienza, 507 Phil. 653; 470 SCRA 670 (2005)
[Per J. Tinga, Second Division]; MARTIN AND MARTIN, ADMINISTRATIVE
LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW, p. 200 (1987); Re:
Administrative Case for Falsification of Official Documents and
Dishonesty against Randy S. Villanueva, 556 Phil. 512; 529 SCRA
679 (2007) [Per Curiam, En Banc].
ADMELEC Cases
388
108 Rollo, p. 84.
181
VOL. 726, JUNE 10, 2014 181
Light Rail transit Authority vs. Salvaña
Sec. 1. Resignation.—The following documents shall be
submitted to the Commission for record purposes:
a. The voluntary written notice of the employee informing the
appointing authority that he is relinquishing his position and the
efffectivity date of said resignation; and
b. The acceptance of resignation in writing by the agency head
or appointing authority which shall indicate the date of effectivity of the
resignation.
An officer or employee under investigation may be allowed to
resign pending decision of his case without prejudice to the
continuation of the proceedings until finally terminated.
The qualification placed by Administrator Robles on his
acceptance does not make respondent’s resignation any less valid.
The rules and regulations allow the acceptance of resignations while
the administrative case is pending provided that the proceedings will
still continue.
We also note that the unauthorized absences were incurred after
the issuance of Office Order No. 119. At respondent’s refusal to
comply, she was administratively charged, which prompted her
resignation from office. If there were irregularities in the issuance of
Office Order No. 119, what respondent should have done would be to
occupy the new position and then file the proper remedies. She should
not have defied the orders of her superiors.
Because of her resignation on August 5, 2006, any modification as
to the service of her suspension became moot. Her permanent
employment record, however, must reflect the modified penalty.
Considering that she is also a member of the Bar, this court furnishes
the Office of the Bar Confidant with a copy of this decision to initiate
the proper disciplinary action against respondent.182
182 SUPREME COURT REPORTS ANNOTATED
Light Rail transit Authority vs. Salvaña
WHEREFORE, the petition is GRANTED. The decision dated
November 11, 2009 of the Court of Appeals in C.A.-G.R. S.P. No.
104225 and Resolution No. 071364 dated July 18, 2007 of the Civil
 389

Service Commission is AFFIRMED with the MODIFICATION that

respondent, Atty. Aurora A. Salvaña, is found guilty of Less Serious
Dishonesty. The Civil Service Commission is DIRECTED to attach a
copy of this decision to respondent’s permanent employment record.
Let a copy of this decision be given to the Office of the Bar
Confidant to initiate the proper disciplinary action against respondent
Atty. Aurora A. Salvaña.
SO ORDERED.

ADMELEC Cases