G.R. No.

213500

OFFICE OF THE OMBUDSMAN and THE FACT-FINDING INVESTIGATION BUREAU (FFIB),

OFFICE OF THE DEPUTY OMBUDSMAN FOR THE MILITARY AND OTHER LAW
ENFORCEMENT OFFICES (MOLEO),Petitioners
vs
PS/SUPT. RAINIER A. ESPINA, Respondent

DECISION

PER CURIAM:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated February 27,
2014 and the Resolution3 dated July 15, 2014 of the Court of Appeals in CA-G.R. SP No.
131114, which modified the Joint Resolution4 dated December 19, 2012 and the Joint
Order5 dated July 8, 2013 of petitioner the Office of the Ombudsman (Ombudsman) in the
administrative aspect of the case, docketed as OMB-P-A-12-0532-G,6 and, thereby, found
respondent PS/Supt. Rainier A. Espina (Espina) administratively liable for Simple Misconduct.

The Facts

On July 11 and 17, 2012, petitioner the Fact-Finding Investigation Bureau (FFIB) of the Office of
the Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) filed
before the Ombudsman an affidavit-complaint7 and a supplemental complaint,8 respectively,
charging Espina and several other PNP officers and private individuals for: (a) violation of
Republic Act No. (RA) 7080,9 RA 3019,10 RA 918411 and its Implementing Rules and Regulations
(IRR), and Malversation of Public Funds through Falsification of Public Documents under Article
217 in relation to Article 171 of the Revised Penal Code (RPC); and (b) Grave Misconduct and
Serious Dishonesty; arising from alleged anomalies that attended the Philippine National Police's
(PNP) procurement of 40 tires, and repair, refurbishment, repowering, and maintenance services
of a total of 28 units of V-150 Light Armored Vehicles (LAVs), and the related transportation and
delivery expenses of 18 units of LAV s between August and December 2007.12 It averred that the
PNP did not comply with the bidding procedure prescribed under RA 9184 and its IRR, in
that: (a) copies of the bid documents were not furnished to possible bidders; (b) no pre-
procurement and pre-bid conferences were held; (c) the invitation to bid was not published in a
newspaper of general circulation; (d) the procuring agency did not require the submission of
eligibility requirements as well as the technical and financial documents from the bidders; and
(e) no post qualification was conducted. Further, it claimed that there were "ghost
deliveries," i.e., the tires were never delivered to the PNP and no repair and refurbishment works
were actually performed on the LAVs.13 The alleged anomalous transactions are as follows:

Transactions Amount

1. Procurement of 40 tires for 10 LAVs ₱2,940,000.00

2. Repowering and refurbishing of 10 LAVs 142,000,000.00

3. Repair and maintenance of 18 LAVs 255,600,000.00

4. Transportation and delivery expenses14 9,200,000.00

Total ₱409, 740,000.0015

Espina, as the Acting Chief of the Management Division of the PNP Directorate for
Comptrollership at the time the procurements were made,16 was impleaded in the aforesaid
complaints for noting/signing the Inspection Report Forms (IRFs),17 which confirmed the PNP's
receipt of the tires and other supplies, and the performance of repair and refurbishment works on
the LAVs. According to the FFIB-MOLEO, by affixing his signature on the IRFs, Espina
supposedly facilitated the fraudulent disbursement of funds amounting to ₱409,740,000.00 when
no goods were actually delivered and no services were actually rendered.18

In defense, Espina denied any participation in the bidding and/or procurement process and
maintained that he belonged to the Management Division which is responsible for the inspection
of deliveries made to the PNP after the bidding and procurement process.19 He also pointed out
that pursuant to the Standing Operating Procedure (SOP) No. XXA20 dated November 17, 1993,
his only duty, as the said division's Acting Chief, was to note the reports. According to him, it was
not his responsibility to personally inspect and confirm deliveries and go beyond the contents of
the IRFs submitted by his subordinates, absent any irregularity reported by the property
inspectors who are tasked to check and examine deliveries.21

The Ombudsman Ruling

In a Joint Resolution22 dated December 19, 2012, the Ombudsman found probable cause to indict
Espina and several other PNP officers for violation of Section 3 (e) of RA 3019, Section 65 (b) (4)
of RA 9184, and for Malversation of Public Funds through Falsification under Article 217 in
relation to Article 171 of the RPC. The Ombudsman also found them guilty of Grave Misconduct
and Serious Dishonesty and, accordingly, recommended their dismissal from government
service.23

Specifically, the Ombudsman held that Espina executed indispensable acts which led to the
completion of the illegal transactions.24 The Ombudsman likewise found it incredulous that the
repair and refurbishment works on the LAV s were completed in only seven (7) days, i.e., from
December 20, 2007 to December 27, 2007, considering the magnitude of the work involved,
which included the delivery of the LAVs for repair, the inspection and acceptance of materials to
be used, the actual conduct of repair and refurbishment works, and the delivery, inspection, and
acceptance of the repaired and refurbished LAVs.25 The Ombudsman even noted the admission
of one of the experts engaged in the repair of the LAVs that the repair and refurbishment works
thereon were still on-going as late as February 2008 until 2010 and, hence, could not have been
completed in December 2007.26

On reconsideration, the Ombudsman, through a Joint Order27 dated July 8 2013, dropped the
charges against Espina and several other PNP Officers, for violation of Section 65 (b) (4) of RA
9184, but sustained the other findings, including their dismissal from service in view of their
administrative liability. In denying Espina's motion for reconsideration in the administrative case,
the Ombudsman pointed out that while it was not Espina's duty to make his own inspections of
the alleged deliveries and work as the same devolved upon the property inspectors, "it was
incumbent upon [Espina] to affix his signature only after checking the completeness and
propriety of the documents."28 Such disregard of duty paved the way for the consummation of four
(4) highly illegal and irregular transactions, i.e., the disbursement of government funds despite
apparent non-delivery of the items and non-performance of works procured.29

Aggrieved, Espina filed a petition for review30 before the CA, imp leading both the Ombudsman
and the FFIB-MOLEO (collectively, petitioners), docketed as CA-G.R. SP No. 131114.

The CA Ruling

In a Decision31 dated February 27, 2014, the CA ruled in favor of Espina and held that his act of
affixing his signature on the IRFs could not be considered as Grave Misconduct because he did
not: (a) unlawfully use his official position for the purpose of benefiting himself;32 and (b) exhibit
corrupt or depraved motives, clear intent to violate the law, or flagrant disregard of established
rules. It observed that Espina had no participation in the bidding and procurement process as he
belonged to the PNP's Management Division whose function is to inspect and note the deliveries
to the PNP after the required bidding and procurement process had taken place. As such, no
liability could attach to him absent a nexus between his functions as Acting Chief of the
Management Division and the alleged anomalous procurement process.33

The CA found Espina guilty, instead, of Simple Misconduct, a less grave offense punishable with
suspension for one (1) month and one (1) day to six (6) months for the first offense, and
dismissal for the second offense. It rejected Espina's defense of reliance in good faith on the acts
of his subordinates, holding that he had the obligation to supervise them and ensure that the
IRFs and Work Orders they prepared, as well as every procurement-related document released
by his division, were regular, lawful, valid, and accurate, considering the significance of the
transaction related to the disbursement of public funds over which great responsibility attached.34

However, the CA absolved Espina from the charge of Serious Dishonesty, considering that he
did not personally prepare the IRFs but merely affixed his signatures thereon. At best, he
imprudently failed to check and counter-check the contents of the IRFs and the Work Orders he
signed, which, however, does not equate to Serious Dishonesty.35

There being no aggravating or mitigating circumstance, the CA imposed on Espina a three-

month suspension reckoned from the time he was actually dismissed from service.36

Dissatisfied, petitioners moved for reconsideration37 which was, however, denied by the CA in a
Resolution38 dated July 15, 2014; hence, the present petition.

The Issue Before the Court

The core issue for the Court's resolution is whether or not Espina should be held administratively
liable for the charges imputed against him.

The Court's Ruling

The petition is partly meritorious.

At the outset, the Court emphasizes that as a general rule, factual findings of the Ombudsman
are conclusive when supported by substantial evidence and are accorded due respect and
weight, especially when affirmed by the CA.39In this case, except as to the legal conclusion on
what administrative offense was committed by Espina, the Ombudsman and the CA both found
that Espina signed the IRFs even if there were actually no tires delivered to the PNP and no
repair and refurbishment works performed on the LA Vs. Accordingly, these findings of fact are
conclusive and binding and shall no longer be delved into, and this Court shall confine itself to
the determination of the proper administrative offense chargeable against Espina and the
appropriate penalty therefor.

In the case at bar, Espina was charged with grave misconduct and serious dishonesty before the
Ombudsman which found him guilty as charged, and imposed on him the supreme penalty of
dismissal from government service with all its accessory penalties, while the CA adjudged him
guilty only of simple misconduct and punished him with a three-month suspension.

Misconduct generally means wrongful, improper or unlawful conduct motivated by a

premeditated, obstinate or intentional purpose.40 It is intentional wrongdoing or deliberate
violation of a rule of law or standard of behavior and to constitute an administrative offense, the
misconduct should relate to or be connected with the performance of the official functions and
duties of a public officer.41 It is a transgression of some established and definite rule of action,
more particularly, unlawful behavior or gross negligence by a public officer.42
There are two (2) types of misconduct, namely: grave misconduct and simple misconduct. In
grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear
intent to violate the law, or flagrant disregard of an established rule must be manifest.43 Without
any of these elements, the transgression of an established rule is properly characterized as
simple misconduct only.44

On the other hand, dishonesty, which is defined as the "disposition to lie, cheat, deceive, or
defraud; untrustworthiness, lack of integrity,"45 is classified in three (3) gradations, namely:
serious, less serious, and simple.46 Serious dishonesty comprises dishonest acts: (a) causing
serious damage and grave prejudice to the government; (b) directly involving property,
accountable forms or money for which respondent is directly accountable and the respondent
shows an intent to commit material gain, graft and corruption; (c) exhibiting moral depravity on
the part of the respondent; (d) involving a Civil Service examination, irregularity or fake Civil
Service eligibility such as, but not limited to, impersonation, cheating and use of crib sheets;
(e) committed several times or in various occasions; (j) committed with grave abuse of
authority; (g) committed with fraud and/or falsification of official documents relating to
respondent's employment; and (h) other analogous circumstances.47 A dishonest act without the
attendance of any of these circumstances can only be characterized as simple dishonesty.48 In
between the aforesaid two forms of dishonesty is less serious dishonesty which obtains
when: (a) the dishonest act caused damage and prejudice to the government which is not so
serious as to qualify as serious dishonesty; (b) the respondent did not take advantage of his/her
position in committing the dishonest act; and (c) other analogous circumstances.49

Both grave misconduct and serious dishonesty, of which Espina was charged, are classified as
grave offenses for which the penalty of dismissal is meted even for first time offenders.50

Here, the CA correctly observed that while Espina may have failed to personally confirm the
delivery of the procured items, the same does not constitute dishonesty of any form inasmuch as
he did not personally prepare the IRFs but merely affixed his signature thereon after his
subordinates supplied the details therein.

Neither can Espina's acts be considered misconduct, grave or simple. The records are bereft of
any proof that Espina was motivated by a premeditated, obstinate or deliberate intent of violating
the law, or disregarding any established rule, or that he wrongfully used his position to procure
some benefit for himself or for another person, contrary to duty and the rights of others.

However, after a circumspect review of the records, the Court finds Espina administratively liable,
instead, for Gross Neglect of Duty, warranting his dismissal from government service.51 At the
outset, it should be pointed out that the designation of the offense or offenses with which a
person is charged in an administrative case is not controlling, and one may be found guilty of
another offense where the substance of the allegations and evidence presented sufficiently
proves one's guilt,52 as in this case. Notably, the FFIB-MOLEO's supplemental complaint accused
Espina with failure to exercise due diligence in signing the IRFs, which is sufficient to hold him
liable for Gross Neglect of Duty.53

Gross neglect of duty is defined as "[n]egligence characterized by want of even slight care, or by
acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully
and intentionally, with a conscious indifference to the consequences, insofar as other persons
may be affected. It is the omission of that care that even inattentive and thoughtless men never
fail to give to their own property."54 In contrast, simple neglect of duty is the failure of an employee
or official to give proper attention to a task expected of him or her, signifying a "disregard of a
duty resulting from carelessness or indifference."55

As aptly observed by the CA, Espina had the obligation to supervise his subordinates and see to
it that they have performed their respective functions in accordance with law.56 To recall, Espina
was the Acting Chief and Head of the PNP's Management Division and, as such,
had supervisory powers over the departments or sections which comprise it, namely: (a) the
Internal Control and Inspection Section (ICIS); (b) the Accountability and Assistance
Section; (c) the Management Improvement Section; and (d) the Claims and Examination Section
(CES).57 Espina himself admitted that the property inspectors who were tasked to personally
inspect deliveries to the PNP belong to the ICIS which was under his management and
stewardship.58 In Lihaylihay v. People,59 the Court pointed out that the nature of the public officers'
responsibilities and their role in the procurement process are compelling factors that should have
led them to examine with greater detail the documents which they are made to approve.

Here, while SOP No. XX4 dated November 17, 1993 which Espina cited does not expressly
require the Head of the Management Division to physically re-inspect, re-check, and verify the
deliveries to the PNP as reported by the property inspectors under him, his duty was not simply
to "note" or take cognizance of the existence of the IRFs, but to reasonably ensure that they
were prepared in accordance with law, keeping in mind the basic requirement that the goods
allegedly delivered to and services allegedly performed for the government have actually been
delivered and performed. As aptly pointed out by the Ombudsman in its Joint Order dated July 8,
2013, "it was incumbent upon [Espina] to affix his signature only after checking the completeness
and propriety of the documents."60However, while Espina claims that all the necessary supporting
documents such as photographs and delivery receipts were attached to the IRFs at the time they
were routed to him for his signature,61 the Court is hard-pressed to find proof substantiating such
claim to justify his passive attitude towards them. In this jurisdiction, it is axiomatic that he who
alleges a fact has the burden of proving it.62 Without evidence showing otherwise, the Court is
constrained to conclude that the IRFs submitted to Espina for his signature were without
supporting documents and could not, perforce, be taken at face value and relied upon. As this
Court ruled in Jaca v. People,63 a superior cannot rely in good faith on the act of a subordinate
where the documents that would support the subordinate' s action were not even in his (the
superior's) possession for examination.

Moreover, the timing of the alleged repair and refurbishment works was suspect. The short seven
(7)-day period in December, 2007 during which the repair and refurbishment works were made
on the LAV s should have prompted Espina to doubt the veracity of the IRFs. As correctly
observed by the Ombudsman, it is improbable that the repair and refurbishment works on the
LAVs were carried out from December 20 to 27, 2007, given the magnitude of the work involved
and the fact that such period included the delivery of the LAV s for repair, the inspection and
approval of the materials to be used for the repairs, the actual repair and refurbishment, and the
delivery of the LA Vs to the PNP after the repair.64

The foregoing should not have escaped Espina's attention had he faithfully discharged the
obligations attendant to his office. Indeed, the Court has pronounced that a public officer's high
1âwphi1

position imposes upon him greater responsibility and obliges him to be more circumspect in his
actions and in the discharge of his official duties.65 This particularly applies to the instant
controversy, especially where Espina's signature was one of the final steps needed for the
release of payment for the procured items.66 In fact, the disbursement vouchers prepared by the
Logistics Support Service (LSS)

Finance Service were routed back to the CES of the Management Division under Espina's
supervision for final examination of all claims.67 With all these considerations, Espina was
expected to employ diligence in ensuring that all claims were supported by complete pertinent
documents. As succinctly put by the CA, Espina's duty as Acting Chief was not merely ministerial
and perfunctory as it related to the disbursement of funds over which a great responsibility
attached.68

More so, considering the sheer magnitude of the amount in taxpayers' money
involved, i.e., ₱409,740,000.00, Espina should have exercised utmost care before signing the
IRFs. It is of no moment that the disbursement of the ₱409,740,000.00 was spread over several
transactions and not through a single payment or that only the IRFs relating to the delivery of
supplies were allegedly presented;69 the fact remains that taxpayers' money was spent without
the corresponding goods and services having been delivered to the government. Indeed, no rule
is more settled than that a public office is a public trust and public officers and employees must,
at all times, be accountable to the people.70

Espina cannot trivialize his role in the disbursement of funds and bank on the lack of confidential
written reports from his subordinates which would have prompted him to make further inquiry. As
aptly pointed out by petitioners, Espina was the last person to affix his signature and, as such,
had the power, if not the duty, to unearth and expose anomalous or irregular
transactions.71 Espina cannot blindly adhere to the findings and opinions of his subordinates, lest
he be reduced to a mere clerk who has no authority over his subordinates and the sections he
oversees.

The Court is not unaware of the ruling in Arias v. Sandiganbayan72 (Arias) that heads of offices
may rely on their subordinates. For the Arias doctrine to apply, however, there must be no
reason for the head of offices to go beyond the recommendations of their subordinates,73 which is
not the case here.

Given the amounts involved and the timing of the alleged deliveries, the circumstances
reasonably impose on Espina a higher degree of care and vigilance in the discharge of his
duties. Thus, he should have been prompted to make further inquiry as to the truth of his
subordinates' reports. Had he made the proper inquiries, he would have discovered the non-
delivery of the procured items and the non-performance of the procured services, and prevented
the unlawful disbursement. However, he did not do this at all. Instead, he blindly relied on the
report and recommendation of his subordinates and affixed his signature on the IRFs. Plainly,
Espina acted negligently, unmindful of the high position he occupied and the responsibilities it
carried, and without regard to his accountability for the hundreds of millions in taxpayers' money
involved.

Verily, this Court has repeatedly emphasized the time-honored rule that a "[p ]ublic office is a
public trust [and] [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."74 This high constitutional standard of conduct is not intended to be
mere rhetoric and taken lightly as those in the public service are enjoined to fully comply with this
standard or run the risk of facing administrative sanctions ranging from reprimand to the extreme
penalty of dismissal from the service.75 Erring public officials may also be held personally liable
for disbursements made in violation of law or regulation, as stated in Section 52,76 Chapter 9,
Subtitle B, Title I, Book V of the Administrative Code of 1987.77 Thus, public officers, as recipients
of public trust, are under obligation to perform the duties of their offices honestly, faithfully, and to
the best of their ability.78 Unfortunately, Espina failed miserably in this respect.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated February 27, 2014 and
the Resolution dated July 15, 2014 of the Court of Appeals in CA-G.R. SP No. 131114 are
hereby SET ASIDE. A new one is ENTERED finding respondent Rainier A. Espina GUILTY of
GROSS NEGLECT OF DUTY. Accordingly, he is DISMISSED from government service with all
the accessory penalties.

SO ORDERED.
G. R. No. 155027 February 28, 2006

THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R.

Acorda, Petitioner,
vs.
Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon.
EDGARDO E. BATENGA in his capacity as Undersecretary for Civil Relations and
Administration of the Department of National Defense, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil
Procedure, with a prayer to declare as void Department Circular No. 04 of the Department of
National Defense (DND), dated 10 June 2002.

Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body
organized under Republic Act No. 2640, dated 18 June 1960, as amended, and duly registered
with the Securities and Exchange Commission. Respondent Angelo T. Reyes was the Secretary
of National Defense (DND Secretary) who issued the assailed Department Circular No. 04, dated
10 June 2002. Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations
and Administration who was tasked by the respondent DND Secretary to conduct an extensive
management audit of the records of petitioner.

The factual and procedural antecedents of this case are as follows:

Petitioner VFP was created under Rep. Act No. 2640,1 a statute approved on 18 June 1960.

On 15 April 2002, petitioner’s incumbent president received a letter dated 13 April 2002 which
reads:

Col. Emmanuel V. De Ocampo (Ret.)

President

Veterans Federation of the Philippines

Makati, Metro Manila

Dear Col. De Ocampo:

Please be informed that during the preparation of my briefing before the Cabinet and the
President last March 9, 2002, we came across some legal bases which tended to show that there
is an organizational and management relationship between Veterans Federation of the
Philippines and the Philippine Veterans Bank which for many years have been inadvertently
overlooked.

I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act
3518 creating the Phil. Vets [sic] Bank.

1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the
control and supervision of the Secretary of National Defense."
 2. RA 2640 Section 12 ... "On or before the last day of the month following the end of
each fiscal year, the Federation shall make and transmit to the President of the
Philippines or to the Secretary of National Defense, a report of its proceedings for the
past year, including a full, complete and itemized report of receipts and expenditures of
whatever kind."

3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank,
and for Other Purposes) provides in Section 6 that ... "the affairs and business of the
Philippine Veterans Bank shall be directed and its property managed, controlled and
preserved, unless otherwise provided in this Act, by a Board of Directors consisting of
eleven (11) members to be composed of three ex officio members to wit: the Philippine
Veterans Administrator, the President of the Veteran’s Federation of the Philippines and
the Secretary of National Defense x x x.

It is therefore in the context of clarification and rectification of what should have been done by the
DND (Department of National Defense) for and about the VFP and PVB that I am requesting
appropriate information and report about these two corporate bodies.

Therefore it may become necessary that a conference with your staffs in these two bodies be
set.

Thank you and anticipating your action on this request.

Very truly yours,

(SGD) ANGELO T. REYES

[DND] Secretary

On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No.
04 entitled, "Further Implementing the Provisions of Sections 12 and 23 of Republic Act No.
2640," the full text of which appears as follows:

Department of National Defense

Department Circular No. 04

Subject: Further Implementing the Provisions of Sections 1 & 2 of

Republic Act No. 2640

Authority: Republic Act No. 2640

Executive Order No. 292 dated July 25, 1987

Section 1

These rules shall govern and apply to the management and operations of the Veterans
Federation of the Philippines (VFP) within the context provided by EO 292 s-1987.

Section 2 – DEFINITION OF TERMS – for the purpose of these rules, the terms, phrases or
words used herein shall, unless the context indicates otherwise, mean or be understood as
follows:
Supervision and Control – it shall include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the performance of a duty; restrain the
commission of acts; approve, reverse or modify acts and decisions of subordinate officials or
units; determine priorities in the execution of plans and programs; and prescribe standards,
guidelines, plans and programs.

Power of Control – power to alter, modify, nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former to that of the latter.

Supervision – means overseeing or the power of an officer to see to it that their subordinate
officers perform their duties; it does not allow the superior to annul the acts of the subordinate.

Administrative Process – embraces matter concerning the procedure in the disposition of both
routine and contested matters, and the matter in which determinations are made, enforced or
reviewed.

Government Agency – as defined under PD 1445, a government agency or agency of

government or "agency" refers to any department, bureau or office of the national government, or
any of its branches or instrumentalities, of any political subdivision, as well as any government
owned or controlled corporation, including its subsidiaries, or other self-governing board or
commission of the government.

Government Owned and Controlled Corporation (GOCC) – refer to any agency organized as a
stock or non-stock corporation, vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the government directly or through its
instrumentalities wholly or, where applicable as in the case of stock corporations, to the extent of
at least 50% of its capital stock.

Fund – sum of money or other resources set aside for the purpose of carrying out specific
activities or attaining certain objectives in accordance with special regulations, restrictions or
limitations and constitutes an independent, fiscal and accounting entity.

Government Fund – includes public monies of every sort and other resources pertaining to any
agency of the government.

Veteran – any person who rendered military service in the land, sea or air forces of the
Philippines during the revolution against Spain, the Philippine American War, World War II,
including Filipino citizens who served in Allied Forces in the Philippine territory and foreign
nationals who served in Philippine forces; the Korean campaign, the Vietnam campaign, the Anti-
dissidence campaign, or other wars or military campaigns; or who rendered military service in the
Armed Forces of the Philippines and has been honorably discharged or separated after at least
six (6) years total cumulative active service or sooner separated due to the death or disability
arising from a wound or injury received or sickness or disease incurred in line of duty while in the
active service.

Section 3 – Relationship Between the DND and the VFP

3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations
and organizations in the Philippines) and their associates and successors are hereby created a
body corporate, under the control and supervision of the Secretary of National Defense, under
the name, style and title of "Veterans Federation of the Philippines ..."

The Secretary of National Defense shall be charged with the duty of supervising the veterans
and allied program under the jurisdiction of the Department. It shall also have the responsibility of
overseeing and ensuring the judicious and effective implementation of veterans assistance,
benefits, and utilization of VFP assets.
3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard
the interests and welfare of the veterans who are also wards of the State entrusted under the
protection of the DND, the Secretary may personally or through a designated representative,
require the submission of reports, documents and other papers regarding any or all of the
Federation’s business transactions particularly those relating to the VFP functions under Section
2 of RA 2640.

The Secretary or his representative may attend conferences of the supreme council of the VFP
and such other activities he may deem relevant.

3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing
vital government activities including, but not limited to, the conduct of elections; the acquisition,
management and dispositions of properties, the accounting of funds, financial interests, stocks
and bonds, corporate investments, etc. and such other transactions which may affect the
interests of the veterans.

3.4 Financial transactions of the Federation shall follow the provisions of the government auditing
code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds
shall be available and may be spent only for the specific purpose for which the trust was created
or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those
exercising authority over the financial affairs, transactions, and operations of the federation;
disbursements or dispositions of government funds or property shall invariably bear the approval
of the proper officials.

Section 4 – Records of the FEDERATION

As a corporate body and in accordance with appropriate laws, it shall keep and carefully
preserve records of all business transactions, minutes of meetings of stockholders/members of
the board of directors reflecting all details about such activity.

All such records and minutes shall be open to directors, trustees, stockholders, and other
members for inspection and copies of which may be requested.

As a body corporate, it shall submit the following: annual report; proceedings of council meetings;
report of operations together with financial statement of its assets and liabilities and fund balance
per year; statement of revenues and expenses per year; statement of cash flows per year as
certified by the accountant; and other documents/reports as may be necessary or required by the
SND.

Section 5 – Submission of Annual and Periodic Report

As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit:

a. Annual Report to be submitted not later than every January 31 of the following year.
Said report shall consist of the following:

1. Financial Report of the Federation, signed by the Treasurer General and

Auditor General;

2. Roster of Members of the Supreme Council;

3. Roster of Members of the Executive Board and National Officers; and

4. Current listing of officers and management of VFP.

 b. Report on the proceedings of each Supreme Council Meeting to be submitted not later
than one month after the meeting;

c. Report of the VFP President as may be required by SND or as may be found

necessary by the President of the Federation;

d. Resolutions passed by the Executive Board and the Supreme Council for confirmation
to be submitted not later than one month after the approval of the resolution;

e. After Operation/Activity Reports to be submitted not later than one month after such
operation or activity;

Section 6 – Penal Sanctions

As an attached agency to a regular department of the government, the VFP and all its
instrumentalities, officials and personnel shall be subject to the penal provisions of such laws,
rules and regulations applicable to the attached agencies of the government.

In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND
Secretary reiterated his instructions in his earlier letter of 13 April 2002.

Thereafter, petitioner’s President received a letter dated 23 August 2002 from respondent
Undersecretary, informing him that Department Order No. 129 dated 23 August 2002 directed
"the conduct of a Management Audit of the Veterans Federation of the Philippines."4 The letter
went on to state that respondent DND Secretary "believes that the mandate given by said law
can be meaningfully exercised if this department can better appreciate the functions,
responsibilities and situation on the ground and this can be done by undertaking a thorough
study of the organization."5

Respondent Undersecretary also requested both for a briefing and for documents on personnel,
ongoing projects and petitioner’s financial condition. The letter ended by stating that, after the
briefing, the support staff of the Audit Committee would begin their work to meet the one-month
target within which to submit a report.

A letter dated 28 August 2003 informed petitioner’s President that the Management Audit Group
headed by the Undersecretary would be paying petitioner a visit on 30 August 2002 for an
update on VFP’s different affiliates and the financial statement of the Federation.

Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND
Secretary, with notice to respondent Undersecretary for Civil Relations and Administration,
complaining about the alleged broadness of the scope of the management audit and requesting
the suspension thereof until such time that specific areas of the audit shall have been agreed
upon.

The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on
the ground that a specific timeframe had been set for the activity.

Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of
Civil Procedure, praying for the following reliefs:

1. For this Court to issue a temporary restraining order and a writ of preliminary
prohibitory and mandatory injunction to enjoin respondent Secretary and all those acting
under his discretion and authority from: (a) implementing DND Department Circular No.
04; and (b) continuing with the ongoing management audit of petitioner’s books of
account;
 2. After hearing the issues on notice –

a. Declare DND Department Circular No. 04 as null and void for being ultra vires;

b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction

into a permanent one.6

GIVING DUE COURSE TO THE PETITION

Petitioner asserts that, although cases which question the constitutionality or validity of
administrative issuances are ordinarily filed with the lower courts, the urgency and substantive
importance of the question on hand and the public interest attendant to the subject matter of the
petition justify its being filed with this Court directly as an original action.7

It is settled that the Regional Trial Court and the Court of Appeals also exercise original
jurisdiction over petitions for certiorari and prohibition. As we have held in numerous occasions,
however, such concurrence of original jurisdiction does not mean that the party seeking
extraordinary writs has the absolute freedom to file his petition in the court of his choice.8 Thus, in
Commissioner of Internal Revenue v. Leal,9 we held that:

Such concurrence of original jurisdiction among the Regional Trial Court, the Court of Appeals
and this Court, however, does not mean that the party seeking any of the extraordinary writs has
the absolute freedom to file his petition in the court of his choice. The hierarchy of courts in our
judicial system determines the appropriate forum for these petitions. Thus, petitions for the
issuance of the said writs against the first level (inferior) courts must be filed with the Regional
Trial Court and those against the latter, with the Court of Appeals. A direct invocation of this
Court’s original jurisdiction to issue these writs should be allowed only where there are special
and important reasons therefor, specifically and sufficiently set forth in the petition. This is the
established policy to prevent inordinate demands upon the Court’s time and attention, which are
better devoted to matters within its exclusive jurisdiction, and to prevent further over-crowding of
the Court’s docket. Thus, it was proper for petitioner to institute the special civil action for
certiorari with the Court of Appeals assailing the RTC order denying his motion to dismiss based
on lack of jurisdiction.

The petition itself, in this case, does not specifically and sufficiently set forth the special and
important reasons why the Court should give due course to this petition in the first instance,
hereby failing to fulfill the conditions set forth in Commissioner of Internal Revenue v.
Leal.10 While we reiterate the policies set forth in Leal and allied cases and continue to abhor the
propensity of a number of litigants to disregard the principle of hierarchy of courts in our judicial
system, we, however, resolve to take judicial notice of the fact that the persons who stand to lose
in a possible protracted litigation in this case are war veterans, many of whom have precious little
time left to enjoy the benefits that can be conferred by petitioner corporation. This bickering for
the power over petitioner corporation, an entity created to represent and defend the interests of
Filipino veterans, should be resolved as soon as possible in order for it to once and for all direct
its resources to its rightful beneficiaries all over the country. All these said, we hereby resolve to
give due course to this petition.

ISSUES

Petitioner mainly alleges that the rules and guidelines laid down in the assailed Department
Circular No. 04 expanded the scope of "control and supervision" beyond what has been laid
down in Rep. Act No. 2640.11 Petitioner further submits the following issues to this Court:

1. Was the challenged department circular passed in the valid exercise of the respondent
Secretary’s "control and supervision"?
 2. Could the challenged department circular validly lay standards classifying the VFP, an
essentially civilian organization, within the ambit of statutes only applying to government
entities?

3. Does the department circular, which grants respondent direct management control on
the VFP, unduly encroach on the prerogatives of VFP’s governing body?

At the heart of all these issues and all of petitioner’s prayers and assertions in this case is
petitioner’s claim that it is a private non-government corporation.

CENTRAL ISSUE:

IS THE VFP A PRIVATE CORPORATION?

Petitioner claims that it is not a public nor a governmental entity but a private organization, and
advances this claim to prove that the issuance of DND Department Circular No. 04 is an invalid
exercise of respondent Secretary’s control and supervision.12

This Court has defined the power of control as "the power of an officer to alter or modify or nullify
or set aside what a subordinate has done in the performance of his duties and to substitute the
judgment of the former to that of the latter."13 The power of supervision, on the other hand,
means "overseeing, or the power or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or
step as prescribed by law to make them perform their duties."14 These definitions are
synonymous with the definitions in the assailed Department Circular No. 04, while the other
provisions of the assailed department circular are mere consequences of control and supervision
as defined.

Thus, in order for petitioner’s premise to be able to support its conclusion, petitioners should be
deemed to imply either of the following: (1) that it is unconstitutional/impermissible for the law
(Rep. Act No. 2640) to grant control and/or supervision to the Secretary of National Defense over
a private organization, or (2) that the control and/or supervision that can be granted to the
Secretary of National Defense over a private organization is limited, and is not as strong as they
are defined above.

The following provision of the 1935 Constitution, the organic act controlling at the time of the
creation of the VFP in 1960, is relevant:

Section 7. The Congress shall not, except by general law, provide for the formation, organization,
or regulation of private corporations, unless such corporations are owned and controlled by the
Government or any subdivision or instrumentality thereof.15

On the other hand, its counterparts in the 1973 and 1987 constitutions are the following:

Section 4. The National Assembly shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are owned or
controlled by the government or any subdivision or instrumentality thereof.16

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization,
or regulation of private corporations. Government-owned and controlled corporations may be
created or established by special charters in the interest of the common good and subject to the
test of economic viability.17

From the foregoing, it is crystal clear that our constitutions explicitly prohibit the regulation by
special laws of private corporations, with the exception of government-owned or controlled
corporations (GOCCs). Hence, it would be impermissible for the law to grant control of the VFP
to a public official if it were neither a public corporation, an unincorporated governmental entity,
nor a GOCC.18 Said constitutional provisions can even be read to prohibit the creation itself of the
VFP if it were neither of the three mentioned above, but we cannot go into that in this case since
there is no challenge to the creation of the VFP in the petition as to permit this Court from
considering its nullity.

Petitioner vigorously argues that the VFP is a private non-government organization, pressing on
the following contentions:

1. The VFP does not possess the elements which would qualify it as a public office,
particularly the possession/delegation of a portion of sovereign power of government to
be exercised for the benefit of the public;

2. VFP funds are not public funds because –

a) No budgetary appropriations or government funds have been released to the

VFP directly or indirectly from the Department of Budget and Management
(DBM);

b) VFP funds come from membership dues;

c) The lease rentals raised from the use of government lands reserved for the
VFP are private in character and do not belong to the government. Said rentals
are fruits of VFP’s labor and efforts in managing and administering the lands for
VFP purposes and objectives. A close analogy would be any Filipino citizen
settling on government land and who tills the land for his livelihood and
sustenance. The fruits of his labor belong to him and not to the owner of the land.
Such fruits are not public funds.

3. Although the juridical personality of the VFP emanates from a statutory charter, the
VFP retains its essential character as a private, civilian federation of veterans voluntarily
formed by the veterans themselves to attain a unity of effort, purpose and objectives, e.g.
–

a. The members of the VFP are individual members and retirees from the public
and military service;

b. Membership in the VFP is voluntary, not compulsory;

c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the
GSIS Law, but by the Labor Code and the SSS Law;

d. The VFP has its own Constitution and By-Laws and is governed by a Supreme
Council who are elected from and by the members themselves;

4. The Administrative Code of 1987 does not provide that the VFP is an attached agency,
nor does it provide that it is an entity under the control and supervision of the DND in the
context of the provisions of said code.

5. The DBM declared that the VFP is a non-government organization and issued a
certificate that the VFP has not been a direct recipient of any funds released by the DBM.
These arguments of petitioner notwithstanding, we are constrained to rule that petitioner is in fact
a public corporation. Before responding to petitioner’s allegations one by one, here are the more
evident reasons why the VFP is a public corporation:

(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known as
the Veterans Federation of the Philippines, Defining its Powers, and for Other Purposes."

(2) Any action or decision of the Federation or of the Supreme Council shall be subject to
the approval of the Secretary of Defense.19

(3) The VFP is required to submit annual reports of its proceedings for the past year,
including a full, complete and itemized report of receipts and expenditures of whatever
kind, to the President of the Philippines or to the Secretary of National Defense.20

(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as among
the government-owned and controlled corporations that will not be privatized.

(5) In Ang Bagong Bayani – OFW Labor Party v. COMELEC,21 this Court held in a minute
resolution that the "VFP [Veterans Federation Party] is an adjunct of the government, as
it is merely an incarnation of the Veterans Federation of the Philippines.

And now to answer petitioner’s reasons for insisting that it is a private corporation:

1. Petitioner claims that the VFP does not possess the elements which would qualify it as a
public office, particularly the possession/delegation of a portion of sovereign power of
government to be exercised for the benefit of the public;

In Laurel v. Desierto,22 we adopted the definition of Mechem of a public office, that it 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."

In the same case, we went on to adopt Mechem’s view that the delegation to the individual of
some of the sovereign functions of government is "[t]he most important characteristic" in
determining whether a position is a public office or not.23 Such portion of the sovereignty of the
country, either legislative, executive or judicial, must attach to the office 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. 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.24 The issue,
therefore, is whether the VFA’s officers have been delegated some portion of the sovereignty of
the country, to be exercised for the public benefit.

In several cases, we have dealt with the issue of whether certain specific activities can be
classified as sovereign functions. These cases, which deal with activities not immediately
apparent to be sovereign functions, upheld the public sovereign nature of operations needed
either to promote social justice25 or to stimulate patriotic sentiments and love of country.26

As regards the promotion of social justice as a sovereign function, we held in Agricultural Credit
and Cooperative Financing Administration (ACCFA) v. Confederation of Unions in Government
Corporations and Offices (CUGCO),27that the compelling urgency with which the Constitution
speaks of social justice does not leave any doubt that land reform is not an optional but a
compulsory function of sovereignty. The same reason was used in our declaration that socialized
housing is likewise a sovereign function.28 Highly significant here is the observation of former
Chief Justice Querube Makalintal:

The growing complexities of modern society, however, have rendered this traditional
classification of the functions of government [into constituent and ministrant functions] quite
unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative
and which the government was called upon to enter optionally, and only "because it was better
equipped to administer for the public welfare than is any private individual or group of
individuals," continue to lose their well-defined boundaries and to be absorbed within activities
that the government must undertake in its sovereign capacity if it is to meet the increasing social
challenges of the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly
towards a greater socialization of economic forces. Here, of course, this development was
envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of
principle concerning the promotion of social justice.29 (Emphasis supplied.)

It was, on the other hand, the fact that the National Centennial Celebrations was calculated to
arouse and stimulate patriotic sentiments and love of country that it was considered as a
sovereign function in Laurel v. Desierto.30 In Laurel, the Court then took its cue from a similar
case in the United States involving a Fourth of July fireworks display. The holding of the
Centennial Celebrations was held to be an executive function, as it was intended to enforce
Article XIV of the Constitution which provides for the conservation, promotion and popularization
of the nation’s historical and cultural heritage and resources, and artistic relations.

In the case at bar, the functions of petitioner corporation enshrined in Section 4 of Rep. Act No.
264031 should most certainly fall within the category of sovereign functions. The protection of the
interests of war veterans is not only meant to promote social justice, but is also intended to
reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our
countrymen who risked their lives and lost their limbs in fighting for and defending our nation. It
would be injustice of catastrophic proportions to say that it is beyond sovereignty’s power to
reward the people who defended her.

Like the holding of the National Centennial Celebrations, the functions of the VFP are executive
functions, designed to implement not just the provisions of Rep. Act No. 2640, but also, and more
importantly, the Constitutional mandate for the State to provide immediate and adequate care,
benefits and other forms of assistance to war veterans and veterans of military campaigns, their
surviving spouses and orphans.32

2. Petitioner claims that VFP funds are not public funds.

Petitioner claims that its funds are not public funds because no budgetary appropriations or
government funds have been released to the VFP directly or indirectly from the DBM, and
because VFP funds come from membership dues and lease rentals earned from administering
government lands reserved for the VFP.

The fact that no budgetary appropriations have been released to the VFP does not prove that it
is a private corporation. The DBM indeed did not see it fit to propose budgetary appropriations to
the VFP, having itself believed that the VFP is a private corporation.33 If the DBM, however, is
mistaken as to its conclusion regarding the nature of VFP’s incorporation, its previous assertions
will not prevent future budgetary appropriations to the VFP. The erroneous application of the law
by public officers does not bar a subsequent correct application of the law.34

Nevertheless, funds in the hands of the VFP from whatever source are public funds, and can be
used only for public purposes. This is mandated by the following provisions of Rep. Act No. 2640:

(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit of
the Veterans of the Philippines;"
 (2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of the
Supreme Council shall be subject to the approval of the Secretary of National Defense."
Hence, all activities of the VFP to which the Supreme Council can apply its funds are
subject to the approval of the Secretary of National Defense;

(3) Section 4 provides that "the Federation shall exist solely for the purposes of a
benevolent character, and not for the pecuniary benefit of its members;" 1avvphil.net

(4) Section 6 provides that all funds of the VFP in excess of operating expenses are
"reserved for disbursement, as the Supreme Council may authorize, for the purposes
stated in Section two of this Act;"

(5) Section 10 provides that "(a)ny donation or contribution which from time to time may
be made to the Federation by the Government of the Philippines or any of its
subdivisions, branches, offices, agencies or instrumentalities shall be expended by the
Supreme Council only for the purposes mentioned in this Act."; and finally,

(6) Section 12 requires the submission of annual reports of VFP proceedings for the past
year, including a full, complete and itemized report of receipts and expenditures of
whatever kind, to the President of the Philippines or to the Secretary of National Defense.

It is important to note here that the membership dues collected from the individual members of
VFP’s affiliate organizations do not become public funds while they are still funds of the affiliate
organizations. A close reading of Section 135 of Rep. Act No. 2640 reveals that what has been
created as a body corporate is not the individual membership of the affiliate organizations, but
merely the aggregation of the heads of the affiliate organizations. Thus, only the money remitted
by the affiliate organizations to the VFP partake in the public nature of the VFP funds.

In Republic v. COCOFED,36 we held that the Coconut Levy Funds are public funds because, inter
alia, (1) they were meant to be for the benefit of the coconut industry, one of the major industries
supporting the national economy, and its farmers; and (2) the very laws governing coconut levies
recognize their public character. The same is true with regard to the VFP funds. No less public is
the use for the VFP funds, as such use is limited to the purposes of the VFP which we have ruled
to be sovereign functions. Likewise, the law governing VFP funds (Rep. Act No. 2640)
recognizes the public character of the funds as shown in the enumerated provisions above.

We also observed in the same COCOFED case that "(e)ven if the money is allocated for a
special purpose and raised by special means, it is still public in character."37 In the case at bar,
some of the funds were raised by even more special means, as the contributions from affiliate
organizations of the VFP can hardly be regarded as enforced contributions as to be considered
taxes. They are more in the nature of donations which have always been recognized as a source
of public funding. Affiliate organizations of the VFP cannot complain of their contributions
becoming public funds upon the receipt by the VFP, since they are presumed aware of the
provisions of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP
funds can be used, but also provides for the regulation of such funds by the national government
through the Secretary of National Defense. There is nothing wrong, whether legally or morally,
from raising revenues through non-traditional methods. As remarked by Justice Florentino
Feliciano in his concurring opinion in Kilosbayan, Incorporated v. Guingona, Jr.38 where he
explained that the funds raised by the On-line Lottery System were also public in nature, thus:

x x x [T]he more successful the government is in raising revenues by non-traditional methods

such as PAGCOR operations and privatization measures, the lesser will be the pressure upon
the traditional sources of public revenues, i.e., the pocket books of individual taxpayers and
importers.
Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto39 which was
cited by Respondents. Petitioner claims that among the reasons National Centennial
Commission Chair Salvador Laurel was considered a public officer was the fact that his
compensation was derived from public funds. Having ruled that VFP funds from whatever source
are public funds, we can safely conclude that the Supreme Council’s compensation, taken as
they are from VFP funds under the term "operating expenses" in Section 6 of Rep. Act No. 2640,
are derived from public funds. The particular nomenclature of the compensation taken from VFP
funds is not even of relevance here. As we said in Laurel concerning compensation as an
element of public office:

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.40

3. Petitioner argues that it is a civilian federation where membership is voluntary.

Petitioner claims that the Secretary of National Defense "historically did not indulge in the direct
or ‘micromanagement’ of the VFP precisely because it is essentially a civilian organization where
membership is voluntary."41 This reliance of petitioner on what has "historically" been done is
erroneous, since laws are not repealed by disuse, custom, or practice to the
contrary.42 Furthermore, as earlier stated, the erroneous application of the law by public officers
does not bar a subsequent correct application of the law.43

Neither is the civilian nature of VFP relevant in this case. The Constitution does not contain any
prohibition, express or implied, against the grant of control and/or supervision to the Secretary of
National Defense over a civilian organization. The Office of the Secretary of National Defense is
itself a civilian office, its occupant being an alter ego of the civilian Commander-in-Chief. This
set-up is the manifestation of the constitutional principle that civilian authority is, at all times,
supreme over the military.44 There being no such constitutional prohibition, the creation of a
civilian public organization by Rep. Act No. 2640 is not rendered invalid by its being placed under
the control and supervision of the Secretary of National Defense.

Petitioner’s stand that the VFP is a private corporation because membership thereto is voluntary
is likewise erroneous. As stated above, the membership of the VFP is not the individual
membership of the affiliate organizations, but merely the aggregation of the heads of such
affiliate organizations. These heads forming the VFP then elect the Supreme Council and the
other officers,45 of this public corporation.

4. Petitioner claims that the Administrative Code of 1987 does not provide that the VFP is an
attached agency, and nor does it provide that it is an entity under the control and supervision of
the DND in the context of the provisions of said code.

The Administrative Code, by giving definitions of the various entities covered by it, acknowledges
that its enumeration is not exclusive. The Administrative Code could not be said to have repealed
nor enormously modified Rep. Act No. 2640 by implication, as such repeal or enormous
modification by implication is not favored in statutory construction.46

5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government organization
in its certification that the VFP "has not been a direct recipient of any funds released by the
DBM."

Respondents claim that the supposed declaration of the DBM that petitioner is a non-government
organization is not persuasive, since DBM is not a quasi-judicial agency. They aver that what we
have said of the Bureau of Local Government Finance (BLGF) in Philippine Long Distance
Telephone Company (PLDT) v. City of Davao47 can be applied to DBM:
In any case, it is contended, the ruling of the Bureau of Local Government Finance (BLGF) that
petitioner’s exemption from local taxes has been restored is a contemporaneous construction of
Section 23 [of R.A. No. 7925 and, as such, is entitled to great weight.

The ruling of the BLGF has been considered in this case. But unlike the Court of Tax Appeals,
which is a special court created for the purpose of reviewing tax cases, the BLGF was created
merely to provide consultative services and technical assistance to local governments and the
general public on local taxation and other related matters. Thus, the rule that the "Court will not
set aside conclusions rendered by the CTA, which is, by the very nature of its function, dedicated
exclusively to the study and consideration of tax problems and has necessarily developed an
expertise on the subject, unless there has been an abuse or improvident exercise of authority"
cannot apply in the case of the BLGF.

On this score, though, we disagree with respondents and hold that the DBM’s appraisal is
considered persuasive. Respondents misread the PLDT case in asserting that only quasi-judicial
agencies’ determination can be considered persuasive. What the PLDT case points out is that,
for an administrative agency’s opinion to be persuasive, the administrative agency involved
(whether it has quasi-judicial powers or not) must be an expert in the field they are giving their
opinion on.

The DBM is indeed an expert on determining what the various government agencies and
corporations are. This determination is necessary for the DBM to fulfill its mandate:

Sec. 2. Mandate. - The Department shall be responsible for the formulation and implementation
of the National Budget with the goal of attaining our national socio-economic plans and
objectives.

The Department shall be responsible for the efficient and sound utilization of government funds
and revenues to effectively achieve our country's development objectives.48

The persuasiveness of the DBM opinion has, however, been overcome by all the previous
explanations we have laid so far. It has also been eclipsed by another similarly persuasive
opinion, that of the Department of National Defense embodied in Department Circular No. 04.
The DND is clearly more of an expert with respect to the determination of the entities under it,
and its Administrative Rules and Regulations are entitled to great respect and have in their favor
the presumption of legality.49

The DBM opinion furthermore suffers from its lack of explanation and justification in the
"certification of non-receipt" where said opinion was given. The DBM has not furnished, in said
certification or elsewhere, an explanation for its opinion that VFP is a non-government
organization.

THE FATE OF DEPARTMENT CIRCULAR NO. 04

Our ruling that petitioner is a public corporation is determinative of whether or not we should
grant petitioner’s prayer to declare Department Circular No. 04 void.

Petitioner assails Department Circular No. 04 on the ground that it expanded the scope of control
and supervision beyond what has been laid down in Rep. Act No. 2640. Petitioner alleges that
"(t)he equation of the meaning of `control’ and `supervision’ of the Administrative Code of 1987
as the same `control and supervision’ under Rep. Act No. 2640, takes out the context of the
original legislative intent from the peculiar surrounding circumstances and conditions that brought
about the creation of the VFP."50 Petitioner claims that the VFP "was intended as a self-
governing autonomous body with a Supreme Council as governing authority," and that the
assailed circular "pre-empts VFP’s original self-governance and autonomy (in) representing
veterans organizations, and substitutes government discretion and decisions to that of the
veterans’ own determination."51 Petitioner says that the circular’s provisions practically render the
Supreme Council inutile, despite its being the statutory governing body of the VFP.52

As previously mentioned, this Court has defined the power of control as "the power of an officer
to alter or modify or nullify or set aside what a subordinate has done in the performance of his
duties and to substitute the judgment of the former to that of the latter."53 The power of
supervision, on the other hand, means "overseeing, or the power or authority of an officer to see
that subordinate officers perform their duties."54 Under the Administrative Code of 1987:55

Supervision and control shall include the authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the
commission of acts; review, approve, reverse or modify acts and decisions of subordinate
officials or units; determine priorities in the execution of plans and programs; and prescribe
standards, guidelines, plans and programs. x x x

The definition of the power of control and supervision under Section 2 of the assailed Department
Circular are synonymous with the foregoing definitions. Consequently, and considering that
petitioner is a public corporation, the provisions of the assailed Department Circular No. 04 did
not supplant nor modify the provisions of Republic Act No. 2640, thus not violating the settled
rule that "all such (administrative) issuances must not override, but must remain consistent and
in harmony with the law they seek to apply or implement. Administrative rules and regulations are
intended to carry out, neither to supplant nor to modify, the law."56

Section 3.2 of the assailed department circular, which authorizes the Secretary of National
Defense to "x x x personally or through a designated representative, require the submission of
reports, documents and other papers regarding any or all of the Federation’s business functions,
x x x."

as well as Section 3.3 which allows the Secretary of DND to

x x x [F]rom time to time issue guidelines, directives and other orders governing vital government
activities including, but not limited to, the conduct of elections, the acquisition, management and
dispositions of properties, the accounting of funds, financial interests, stocks and bonds,
corporate investments, etc. and such other transactions which may affect the interests of the
veterans.

are merely consequences of both the power of control and supervision granted by Rep. Act No.
2640. The power to alter or modify or nullify or set aside what a subordinate has done in the
performance of his duties, or to see to it that subordinate officers perform their duties in
accordance with law, necessarily requires the ability of the superior officer to monitor, as closely
as it desires, the acts of the subordinate.

The same is true with respect to Sections 4 and 5 of the assailed Department Circular No. 04,
which requires the preservation of the records of the Federation and the submission to the
Secretary of National Defense of annual and periodic reports.

Petitioner likewise claims that the assailed DND Department Circular No. 04 was never
published, and hence void.57 Respondents deny such non-publication.58

We have put forth both the rule and the exception on the publication of administrative rules and
regulations in the case of Tañada v. Tuvera:59

x x x Administrative rules and regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules on guidelines to be followed by their subordinates in the performance of
their duties.

Even assuming that the assailed circular was not published, its validity is not affected by such
non-publication for the reason that its provisions fall under two of the exceptions enumerated in
Tañada.

Department Circular No. 04 is an internal regulation. As we have ruled, they are meant to
regulate a public corporation under the control of DND, and not the public in general. As likewise
discussed above, what has been created as a body corporate by Rep. Act No. 2640 is not the
individual membership of the affiliate organizations of the VFP, but merely the aggregation of the
heads of the affiliate organizations. Consequently, the individual members of the affiliate
organizations, who are not public officers, are beyond the regulation of the circular.

Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in nature. They
add nothing to the law. They do not affect the substantial rights of any person, whether party to
the case at bar or not. In Sections 2 and 3, control and supervision are defined, mentioning
actions that can be performed as consequences of such control and supervision, but without
specifying the particular actions that shall be rendered to control and supervise the VFP. Section
6, in the same vein, merely state what the drafters of the circular perceived to be consequences
of being an attached agency to a regular department of the government, enumerating sanctions
and remedies provided by law that may be availed of whenever desired.

Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department Circular,
which provides that –

3.4 Financial transactions of the Federation shall follow the provisions of the government auditing
code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds
shall be available and may be spent only for the specific purpose for which the trust was created
or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those
exercising authority over the financial affairs, transactions, and operations of the federation;
disbursements or dispositions of government funds or property shall invariably bear the approval
of the proper officials.

Since we have also previously determined that VFP funds are public funds, there is likewise no
reason to declare this provision invalid. Section 3.4 is correct in requiring the VFP funds to be
used for public purposes, but only insofar the term "public purposes" is construed to mean
"public purposes enumerated in Rep. Act No. 2640."

Having in their possession public funds, the officers of the VFP, especially its fiscal officers, must
indeed share in the fiscal responsibility to the greatest extent.

As to petitioner’s allegation that VFP was intended as a self-governing autonomous body with a
Supreme Council as governing authority, we find that the provisions of Rep. Act No. 2640
concerning the control and supervision of the Secretary of National Defense clearly withholds
from the VFP complete autonomy. To say, however, that such provisions render the VFP inutile
is an exaggeration. An office is not rendered inutile by the fact that it is placed under the control
of a higher office. These subordinate offices, such as the executive offices under the control of
the President, exercise discretion at the first instance. While their acts can be altered or even set
aside by the superior, these acts are effective and are deemed the acts of the superior until they
are modified. Surely, we cannot say that the offices of all the Department Secretaries are
worthless positions.
In sum, the assailed DND Department Circular No. 04 does not supplant nor modify and is, on
the contrary, perfectly in consonance with Rep. Act No. 2640. Petitioner VFP is a public
corporation. As such, it can be placed under the control and supervision of the Secretary of
National Defense, who consequently has the power to conduct an extensive management audit
of petitioner corporation.

WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the
Department of National Defense Department Circular No. 04 is AFFIRMED.

SO ORDERED.
G.R. No. 192935 December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 193036

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.

DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument secures and guarantees to them.

--- Justice Jose P. Laurel1

The role of the Constitution cannot be overlooked. It is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which these
powers are distributed among the several departments.2 The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.3 Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to sway and accommodate the call of
situations and much more tailor itself to the whims and caprices of government and the people
who run it.4

For consideration before the Court are two consolidated cases5 both of which essentially assail
the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating
the Philippine Truth Commission of 2010."

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner
Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive
Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of
the Constitution6 as it usurps the constitutional authority of the legislature to create a public office
and to appropriate funds therefor.7

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B.
Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of
graft and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good
senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body
to investigate reported cases of graft and corruption allegedly committed during the previous
administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order
No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent
provisions of said executive order read:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines
the principle that a public office is a public trust and mandates that public officers and employees,
who are servants of the people, must at all times be accountable to the latter, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and
notorious violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and
social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor,
the marginalized and underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the
people’s trust and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of
large scale graft and corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others from committing the
evil, restore the people’s faith and confidence in the Government and in their public servants;

WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections
"kung walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out
the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice for
all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as
the Revised Administrative Code of the Philippines, gives the President the continuing authority
to reorganize the Office of the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people, committed
by public officers and employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the President, Congress
and the Ombudsman.

In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which it
will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the

cases of large scale corruption which it has chosen to investigate, and to this end
require any agency, official or employee of the Executive Branch, including
government-owned or controlled corporations, to produce documents, books,
records and other papers;

c) Upon proper request or representation, obtain information and documents from

the Senate and the House of Representatives records of investigations
conducted by committees thereof relating to matters or subjects being
investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts,
including the Sandiganbayan and the Office of the Court Administrator,
information or documents in respect to corruption cases filed with the
Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state

witness to ensure that the ends of justice be fully served, that such person who
qualifies as a state witness under the Revised Rules of Court of the Philippines
be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground
to believe that they are liable for graft and corruption under pertinent applicable
laws;

h) Call upon any government investigative or prosecutorial agency such as the

Department of Justice or any of the agencies under it, and the Presidential Anti-
 Graft Commission, for such assistance and cooperation as it may require in the
discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals and other

personnel determined by it as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary

to effectively and efficiently carry out the objectives of this Executive Order and to
ensure the orderly conduct of its investigations, proceedings and hearings,
including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in

connection with the objectives and purposes of this Order.

SECTION 3. Staffing Requirements. – x x x.

SECTION 4. Detail of Employees. – x x x.

SECTION 5. Engagement of Experts. – x x x

SECTION 6. Conduct of Proceedings. – x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.

SECTION 8. Protection of Witnesses/Resource Persons. – x x x.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be dealt with in accordance with
law.

SECTION 10. Duty to Extend Assistance to the Commission. – x x x.

SECTION 11. Budget for the Commission. – The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute its
functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously
as possible.

SECTION 12. Office. – x x x.

SECTION 13. Furniture/Equipment. – x x x.

SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or
before December 31, 2012.

SECTION 15. Publication of Final Report. – x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of a supplemental
Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the
same shall not affect the validity and effectivity of the other provisions hereof.

SECTION 19. Effectivity. – This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is
a mere ad hoc body formed under the Office of the President with the primary task to investigate
reports of graft and corruption committed by third-level public officers and employees, their co-
principals, accomplices and accessories during the previous administration, and thereafter to
submit its finding and recommendations to the President, Congress and the Ombudsman.
Though it has been described as an "independent collegial body," it is essentially an entity within
the Office of the President Proper and subject to his control. Doubtless, it constitutes a public
office, as an ad hoc body is one.8

To accomplish its task, the PTC shall have all the powers of an investigative body under Section
37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body
as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between
contending parties. All it can do is gather, collect and assess evidence of graft and corruption
and make recommendations. It may have subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from
such facts if probable cause exists as to warrant the filing of an information in our courts of law.
Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions.

The PTC is different from the truth commissions in other countries which have been created as
official, transitory and non-judicial fact-finding bodies "to establish the facts and context of
serious violations of human rights or of international humanitarian law in a country’s past."9 They
are usually established by states emerging from periods of internal unrest, civil strife or
authoritarianism to serve as mechanisms for transitional justice.

Truth commissions have been described as bodies that share the following characteristics: (1)
they examine only past events; (2) they investigate patterns of abuse committed over a period of
time, as opposed to a particular event; (3) they are temporary bodies that finish their work with
the submission of a report containing conclusions and recommendations; and (4) they are
officially sanctioned, authorized or empowered by the State.10 "Commission’s members are
usually empowered to conduct research, support victims, and propose policy recommendations
to prevent recurrence of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend institutional reforms."11

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war
crime tribunals are examples of a retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which was to heal the
wounds of past violence and to prevent future conflict by providing a cathartic experience for
victims.

The PTC is a far cry from South Africa’s model. The latter placed more emphasis on
reconciliation than on judicial retribution, while the marching order of the PTC is the identification
and punishment of perpetrators. As one writer12puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his
inaugural speech: "To those who talk about reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have committed in the past, we have this to say: There
can be no reconciliation without justice. When we allow crimes to go unpunished, we give
consent to their occurring over and over again."

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to
declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the
Congress to create a public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987
cannot legitimize E.O. No. 1 because the delegated authority of the President to
structurally reorganize the Office of the President to achieve economy, simplicity and
efficiency does not include the power to create an entirely new public office which was
hitherto inexistent like the "Truth Commission."

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested
the "Truth Commission" with quasi-judicial powers duplicating, if not superseding, those
of the Office of the Ombudsman created under the 1987 Constitution and the Department
of Justice created under the Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for
investigation and prosecution officials and personnel of the previous administration as if
corruption is their peculiar species even as it excludes those of the other administrations,
past and present, who may be indictable.

(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and
general international practice of four decades wherein States constitute truth
commissions to exclusively investigate human rights violations, which customary practice
forms part of the generally accepted principles of international law which the Philippines
is mandated to adhere to pursuant to the Declaration of Principles enshrined in the
Constitution.

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in

partisan hostility, a launching pad for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that widespread poverty will altogether
vanish if corruption is eliminated without even addressing the other major causes of
poverty.

(g) The mere fact that previous commissions were not constitutionally challenged is of no
moment because neither laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the
assailed executive order with the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because
the President’s executive power and power of control necessarily include the inherent
power to conduct investigations to ensure that laws are faithfully executed and that, in
any event, the Constitution, Revised Administrative Code of 1987 (E.O. No.
292), 15 Presidential Decree (P.D.) No. 141616 (as amended by P.D. No. 1772), R.A. No.
9970,17 and settled jurisprudence that authorize the President to create or form such
bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there
is no appropriation but a mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Office of
the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a
fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant
or erode the latter’s jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was
validly created for laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and
presidential issuances creating similar bodies to justify the creation of the PTC such as
Presidential Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance Efficiency (PCAPE) by President Carlos
P. Garcia and Presidential Agency on Reform and Government Operations (PARGO)by
President Ferdinand E. Marcos.18

From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues
to be resolved:

1. Whether or not the petitioners have the legal standing to file their respective petitions
and question Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the principle of separation of powers by
usurping the powers of Congress to create and to appropriate funds for public offices,
agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and
the DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court
needs to ascertain whether the requisites for a valid exercise of its power of judicial review are
present.

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.19

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure
to demonstrate their personal stake in the outcome of the case. It argues that the petitioners
have not shown that they have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject of the commission’s
investigations, petitioners will not sustain injury in its creation or as a result of its proceedings.20

The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators
to assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power
of the Congress as a body to which they belong as members. This certainly justifies their resolve
to take the cudgels for Congress as an institution and present the complaints on the usurpation
of their power and rights as members of the legislature before the Court. As held in Philippine
Constitution Association v. Enriquez,21

To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.

Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges
vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the
validity of any official action which, to their mind, infringes on their prerogatives as legislators.22

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the
creation of the PTC and the budget for its operations.23 It emphasizes that the funds to be used
for the creation and operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of funds for the commission
will not entail congressional action but will simply be an exercise of the President’s power over
contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order
No. 1. Nowhere in his petition is an assertion of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the axe over presidential issuances in defense of
the Constitution. The case of David v. Arroyo24 explained the deep-seated rules on locus standi.
Thus:

Locus standi is defined as "a right of appearance in a court of justice on a given question." In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or
the party entitled to the avails of the suit." Succinctly put, the plaintiff’s standing is based on his
own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins: "In matter of mere public right, however…the people are the real parties…It is at least
the right, if not the duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied." With respect to taxpayer’s
suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts
to restrain the unlawful use of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general interest common to all members of the
public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations
omitted]

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest."25

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the standing
requirements may be relaxed and a suit may be allowed to prosper even where there is no direct
injury to the party claiming the right of judicial review. In the first Emergency Powers
Cases,27 ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders although they had only an indirect and general interest shared in common with
the public.

The OSG claims that the determinants of transcendental importance28 laid down in CREBA v.
ERC and Meralco29are non-existent in this case. The Court, however, finds reason in Biraogo’s
assertion that the petition covers matters of transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional issues in the petition which deserve the
attention of this Court in view of their seriousness, novelty and weight as precedents. Where the
issues are of transcendental and paramount importance not only to the public but also to the
Bench and the Bar, they should be resolved for the guidance of all.30 Undoubtedly, the Filipino
people are more than interested to know the status of the President’s first effort to bring about a
promised change to the country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of the public, but because the
Court stands firm in its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public
office and not merely an adjunct body of the Office of the President.31 Thus, in order that the
President may create a public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power cannot be
presumed32 since there is no provision in the Constitution or any specific law that authorizes the
President to create a truth commission.33 He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his office, cannot serve as
basis for the creation of a truth commission considering the aforesaid provision merely uses
verbs such as "reorganize," "transfer," "consolidate," "merge," and "abolish."34 Insofar as it vests
in the President the plenary power to reorganize the Office of the President to the extent of
creating a public office, Section 31 is inconsistent with the principle of separation of powers
enshrined in the Constitution and must be deemed repealed upon the effectivity thereof.35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies
within the province of Congress and not with the executive branch of government. They maintain
that the delegated authority of the President to reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the President to create a public office, much less a truth
commission; 2) is limited to the reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of the Office of the President
Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy
and efficiency.36Such continuing authority of the President to reorganize his office is limited, and
by issuing Executive Order No. 1, the President overstepped the limits of this delegated
authority.

The OSG counters that there is nothing exclusively legislative about the creation by the President
of a fact-finding body such as a truth commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create public offices within the Office of
the President Proper has long been recognized.37 According to the OSG, the Executive, just like
the other two branches of government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally mandated functions and in the
exercise of its administrative functions.38 This power, as the OSG explains it, is but an adjunct of
the plenary powers wielded by the President under Section 1 and his power of control under
Section 17, both of Article VII of the Constitution.39

It contends that the President is necessarily vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all laws are enforced by public officials and
employees of his department and in the exercise of his authority to assume directly the functions
of the executive department, bureau and office, or interfere with the discretion of his
officials.40 The power of the President to investigate is not limited to the exercise of his power of
control over his subordinates in the executive branch, but extends further in the exercise of his
other powers, such as his power to discipline subordinates,41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed on matters which he is entitled
to know.43

The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the President
has the power to reorganize the offices and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid delegation of the legislative
power to reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create
offices. For the OSG, the President may create the PTC in order to, among others, put a closure
to the reported large scale graft and corruption in the government.45

The question, therefore, before the Court is this: Does the creation of the PTC fall within the
ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative
Code? Section 31 contemplates "reorganization" as limited by the following functional and
structural lines: (1) restructuring the internal organization of the Office of the President Proper by
abolishing, consolidating or merging units thereof or transferring functions from one unit to
another; (2) transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office of the
President to any other Department/Agency or vice versa. Clearly, the provision refers to
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already existent
but a modification or alteration thereof has to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in
the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under Section 31
is a misplaced supposition, even in the plainest meaning attributable to the term "restructure"– an
"alteration of an existing structure." Evidently, the PTC was not part of the structure of the Office
of the President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning
EIIB v. Hon. Executive Secretary,46

But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the
President, subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA
312 (2000)], we ruled that reorganization "involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of functions." It takes place
when there is an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them. The EIIB is a bureau
attached to the Department of Finance. It falls under the Office of the President. Hence, it is
subject to the President’s continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the President’s power of control.
Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to substitute the judgment of the former with that
of the latter.47 Clearly, the power of control is entirely different from the power to create public
offices. The former is inherent in the Executive, while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from Congress, empowering the
President to create a public office?

According to the OSG, the power to create a truth commission pursuant to the above provision
finds statutory basis under P.D. 1416, as amended by P.D. No. 1772.48 The said law granted the
President the continuing authority to reorganize the national government, including the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to
create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416
was a delegation to then President Marcos of the authority to reorganize the administrative
structure of the national government including the power to create offices and transfer
appropriations pursuant to one of the purposes of the decree, embodied in its last "Whereas"
clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate
flexibility in the organization of the national government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the
interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the
convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987
Constitution. In fact, even the Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause
of P.D. 1416 says "it was enacted to prepare the transition from presidential to parliamentary.
Now, in a parliamentary form of government, the legislative and executive powers are fused,
correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree
with me that P.D. 1416 should not be considered effective anymore upon the promulgation,
adoption, ratification of the 1987 Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National
Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416
as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17,
Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are
faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal
branches of government is a grant of all powers inherent in them. The President’s power to
conduct investigations to aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is inherent in the President’s
powers as the Chief Executive. That the authority of the President to conduct investigations and
to create bodies to execute this power is not explicitly mentioned in the Constitution or in statutes
does not mean that he is bereft of such authority.51 As explained in the landmark case of Marcos
v. Manglapus:52

x x x. The 1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual distribution
among three distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the
laws, for the President is head of state as well as head of government and whatever powers
inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on
the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative
nor judicial has to be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not limited to those specific powers under the
Constitution.53 One of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if laws have been faithfully executed. Thus,
in Department of Health v. Camposano,54 the authority of the President to issue Administrative
Order No. 298, creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of medicines
was upheld. In said case, it was ruled:

The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as mandate, the legality of the
investigation is sustained. Such validity is not affected by the fact that the investigating team and
the PCAGC had the same composition, or that the former used the offices and facilities of the
latter in conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow
an inquiry into matters which the President is entitled to know so that he can be properly advised
and guided in the performance of his duties relative to the execution and enforcement of the laws
of the land. And if history is to be revisited, this was also the objective of the investigative bodies
created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission and the Zenarosa Commission. There being no changes in the government
structure, the Court is not inclined to declare such executive power as non-existent just because
the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it to say that there will be no appropriation but
only an allotment or allocations of existing funds already appropriated. Accordingly, there is no
usurpation on the part of the Executive of the power of Congress to appropriate funds. Further,
there is no need to specify the amount to be earmarked for the operation of the commission
because, in the words of the Solicitor General, "whatever funds the Congress has provided for
the Office of the President will be the very source of the funds for the commission."55 Moreover,
since the amount that would be allocated to the PTC shall be subject to existing auditing rules
and regulations, there is no impropriety in the funding.

Power of the Truth Commission to Investigate

The President’s power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII,
Section 17 thereof.56 As the Chief Executive, the president represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his department.
He has the authority to directly assume the functions of the executive department.57

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft
and corruption and to recommend the appropriate action. As previously stated, no quasi-judicial
powers have been vested in the said body as it cannot adjudicate rights of persons who come
before it. It has been said that "Quasi-judicial powers involve the power to hear and determine
questions of fact to which the legislative policy is to apply and to decide in accordance with the
standards laid down by law itself in enforcing and administering the same law."58 In simpler
terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of
administrative agencies.

The distinction between the power to investigate and the power to adjudicate was delineated by
the Court in Cariño v. Commission on Human Rights.59 Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely:
inquire into systematically: "to search or inquire into: x x to subject to an official probe x x: to
conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to
learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or
resolving a controversy involved in the facts inquired into by application of the law to the facts
established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;"
"to inquire; to make an investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d
Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,

determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights
and duties of the parties to a court case) on the merits of issues raised: x x to pass judgment on:
settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with
judicial or quasi-judicial powers: x x to award or grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To
pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial
determination of a fact, and the entry of a judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of
justice, or even a quasi-judicial agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions in a controversy must be
accompanied by the authority of applying the law to the factual conclusions to the end that the
controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals
or modes of review as may be provided by law.60 Even respondents themselves admit that the
commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or
erode their respective powers. If at all, the investigative function of the commission will
complement those of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation."62 The actual prosecution of suspected offenders, much less
adjudication on the merits of the charges against them,63 is certainly not a function given to the
commission. The phrase, "when in the course of its investigation," under Section 2(g), highlights
this fact and gives credence to a contrary interpretation from that of the petitioners. The function
of determining probable cause for the filing of the appropriate complaints before the courts
remains to be with the DOJ and the Ombudsman.64

At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is
shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v.
Galicia,65 it was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts.
The power to conduct preliminary investigation on charges against public employees and officials
is likewise concurrently shared with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective officials.
[Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate
criminal cases under Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of
any public officer or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage,
from any investigatory agency of government, the investigation of such cases. [Emphases
supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is
categorically out of the PTC’s sphere of functions. Its power to investigate is limited to obtaining
facts so that it can advise and guide the President in the performance of his duties relative to the
execution and enforcement of the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsman’s primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title
III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide
whether or not to reject the recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for possible indictments for
violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the
President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in
view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III
(Bill of Rights) of the 1987 Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional
safeguard. They contend that it does not apply equally to all members of the same class such
that the intent of singling out the "previous administration" as its sole object makes the PTC an
"adventure in partisan hostility."66 Thus, in order to be accorded with validity, the commission
must also cover reports of graft and corruption in virtually all administrations previous to that of
former President Arroyo.67

The petitioners argue that the search for truth behind the reported cases of graft and corruption
must encompass acts committed not only during the administration of former President Arroyo
but also during prior administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino people. They assail the
classification formulated by the respondents as it does not fall under the recognized exceptions
because first, "there is no substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who abused their public
office for personal gain; and second, the selective classification is not germane to the purpose of
Executive Order No. 1 to end corruption."69 In order to attain constitutional permission, the
petitioners advocate that the commission should deal with "graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the law with equal force."70

Position of respondents

According to respondents, while Executive Order No. 1 identifies the "previous administration" as
the initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself
to cases of large scale graft and corruption solely during the said administration.71 Assuming
arguendo that the commission would confine its proceedings to officials of the previous
administration, the petitioners argue that no offense is committed against the equal protection
clause for "the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the Executive Order seeks to correct."72 To
distinguish the Arroyo administration from past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in
the previous administration which have eroded public confidence in public institutions. There is,
therefore, an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others from committing the
evil, restore the people’s faith and confidence in the Government and in their public servants.

Second. The segregation of the preceding administration as the object of fact-finding is

warranted by the reality that unlike with administrations long gone, the current administration will
most likely bear the immediate consequence of the policies of the previous administration.

Third. The classification of the previous administration as a separate class for investigation lies in
the reality that the evidence of possible criminal activity, the evidence that could lead to recovery
of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations to
provide closure to issues that are pivotal to national life or even as a routine measure of due
diligence and good housekeeping by a nascent administration like the Presidential Commission
on Good Government (PCGG), created by the late President Corazon C. Aquino under Executive
Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President
Ferdinand Marcos and his cronies, and the Saguisag Commission created by former President
Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens’
committee to investigate all the facts and circumstances surrounding "Philippine Centennial
projects" of his predecessor, former President Fidel V. Ramos.73 [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the
laws is embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.74

"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed."75 It "requires public bodies and institutions to treat similarly situated individuals in a
similar manner."76 "The purpose of the equal protection clause is to secure every person within a
state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statue or by its improper execution through the state’s duly constituted
authorities."77 "In other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals solely on differences that
are irrelevant to a legitimate governmental objective."78

The equal protection clause is aimed at all official state actions, not just those of the
legislature.79 Its inhibitions cover all the departments of the government including the political and
executive departments, and extend to all actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken. 80

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is
not limited to existing conditions only; and

(4) It applies equally to all members of the same class.81 "Superficial differences do not make for
a valid classification."82

For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class.83 "The classification will be regarded as invalid if all
the members of the class are not similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made with absolute symmetry, in the sense
that the members of the class should possess the same characteristics in equal degree.
Substantial similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so constituted as to
preclude addition to the number included in the class. It must be of such a nature as to embrace
all those who may thereafter be in similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain classification. As elucidated in
Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a long line of cases,86

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

The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in speculation
or practice because they agree with one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which means
that the classification should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited to existing conditions
only; and that it must apply equally to each member of the class. This Court has held that the
standard is satisfied if the classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of
the equal protection clause. The clear mandate of the envisioned truth commission is to
investigate and find out the truth "concerning the reported cases of graft and corruption during
the previous administration"87 only. The intent to single out the previous administration is plain,
patent and manifest. Mention of it has been made in at least three portions of the questioned
executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out
the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice for
all;

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people, committed
by public officers and employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the President, Congress
and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates to label the commission
as a vehicle for vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo administration and other
past administrations, these distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of widespread corruption in the
Arroyo administration cannot be taken as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread reports of impropriety. They
are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz
put it, "Superficial differences do not make for a valid classification."88

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the
intended investigation to the previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily overburden the commission
and lead it to lose its effectiveness."89The reason given is specious. It is without doubt irrelevant
to the legitimate and noble objective of the PTC to stamp out or "end corruption and the evil it
breeds."90

The probability that there would be difficulty in unearthing evidence or that the earlier reports
involving the earlier administrations were already inquired into is beside the point. Obviously,
deceased presidents and cases which have already prescribed can no longer be the subjects of
inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of
previous administrations, given the body’s limited time and resources. "The law does not require
the impossible" (Lex non cogit ad impossibilia).91

Given the foregoing physical and legal impossibility, the Court logically recognizes the
unfeasibility of investigating almost a century’s worth of graft cases. However, the fact remains
that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its
mandate of searching for the truth, must not exclude the other past administrations. The PTC
must, at least, have the authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and
administered by public authority with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis
supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The
Court, however, is of the considered view that although its focus is restricted, the constitutional
guarantee of equal protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights determined and all public authority
administered.93 Laws that do not conform to the Constitution should be stricken down for being
unconstitutional.94While the thrust of the PTC is specific, that is, for investigation of acts of graft
and corruption, Executive Order No. 1, to survive, must be read together with the provisions of
the Constitution. To exclude the earlier administrations in the guise of "substantial distinctions"
would only confirm the petitioners’ lament that the subject executive order is only an "adventure
in partisan hostility." In the case of US v. Cyprian,95 it was written: "A rather limited number of
such classifications have routinely been held or assumed to be arbitrary; those include: race,
national origin, gender, political activity or membership in a political party, union activity or
membership in a labor union, or more generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class.96 "Such a classification must
not be based on existing circumstances only, or so constituted as to preclude additions to the
number included within a class, but must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory legislation and which are indistinguishable
from those of the members of the class must be brought under the influence of the law and
treated by it in the same way as are the members of the class."97

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under
the equal protection clause."98 "Legislation is not unconstitutional merely because it is not all-
embracing and does not include all the evils within its reach."99 It has been written that a
regulation challenged under the equal protection clause is not devoid of a rational predicate
simply because it happens to be incomplete.100 In several instances, the underinclusiveness was
not considered a valid reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not run the risk of losing
the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked."102

In Executive Order No. 1, however, there is no inadvertence. That the previous administration
was picked out was deliberate and intentional as can be gleaned from the fact that it was
underscored at least three times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report to be focused on unlike the
investigative commissions created in the past. "The equal protection clause is violated by
purposeful and intentional discrimination."103

To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that
the commission does not only confine itself to cases of large scale graft and corruption
committed during the previous administration.104The OSG points to Section 17 of Executive
Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of a supplemental
Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand
the scope of investigations of the PTC so as to include the acts of graft and corruption committed
in other past administrations, it does not guarantee that they would be covered in the future.
Such expanded mandate of the commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section would then be meaningless. This
will only fortify the fears of the petitioners that the Executive Order No. 1 was "crafted to tailor-fit
the prosecution of officials and personalities of the Arroyo administration."105

The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,106 that the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause." The decision, however, was devoid of any
discussion on how such conclusory statement was arrived at, the principal issue in said case
being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court, in
the exercise of its constitutionally mandated power of Judicial Review with respect to recent
initiatives of the legislature and the executive department, is exercising undue interference. Is the
Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating
fundamental tenets like the doctrine of separation of powers? Time and again, this issue has
been addressed by the Court, but it seems that the present political situation calls for it to once
again explain the legal basis of its action lest it continually be accused of being a hindrance to
the nation’s thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is
vested with Judicial Power that "includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the
power to declare a treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between the Supreme Court, on one
hand, and the two co-equal bodies of government, on the other. Many times the Court has been
accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment,
to wit: "And when the judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument secures and guarantees to them."107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-
equal body but rather simply making sure that any act of government is done in consonance with
the authorities and rights allocated to it by the Constitution. And, if after said review, the Court
finds no constitutional violations of any sort, then, it has no more authority of proscribing the
actions under review. Otherwise, the Court will not be deterred to pronounce said act as void and
unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember
this ethical principle: "The end does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be allowed.108 The Court cannot
just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its
enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its rectitude."109

Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by
the present administration. Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of reasonableness and not be an
affront to the Constitution. Of all the branches of the government, it is the judiciary which is the
most interested in knowing the truth and so it will not allow itself to be a hindrance or obstacle to
its attainment. It must, however, be emphasized that the search for the truth must be within
constitutional bounds for "ours is still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.

SO ORDERED.
G. R. No. 175352 January 18, 2011

DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners,

vs.
RICHARD J. GORDON, Respondent.
PHILIPPINE NATIONAL RED CROSS, Intervenor.

RESOLUTION

LEONARDO-DE CASTRO, J.:

This resolves the Motion for Clarification and/or for Reconsideration1 filed on August 10, 2009 by
respondent Richard J. Gordon (respondent) of the Decision promulgated by this Court on July
15, 2009 (the Decision), the Motion for Partial Reconsideration2 filed on August 27, 2009 by
movant-intervenor Philippine National Red Cross (PNRC), and the latter’s Manifestation and
Motion to Admit Attached Position Paper3 filed on December 23, 2009.

In the Decision,4 the Court held that respondent did not forfeit his seat in the Senate when he
accepted the chairmanship of the PNRC Board of Governors, as "the office of the PNRC
Chairman is not a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution."5 The
Decision, however, further declared void the PNRC Charter "insofar as it creates the PNRC as a
private corporation" and consequently ruled that "the PNRC should incorporate under the
Corporation Code and register with the Securities and Exchange Commission if it wants to be a
private corporation."6 The dispositive portion of the Decision reads as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that
Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National
Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are
VOID because they create the PNRC as a private corporation or grant it corporate powers.7

In his Motion for Clarification and/or for Reconsideration, respondent raises the following
grounds: (1) as the issue of constitutionality of Republic Act (R.A.) No. 95 was not raised by the
parties, the Court went beyond the case in deciding such issue; and (2) as the Court decided that
Petitioners did not have standing to file the instant Petition, the pronouncement of the Court on
the validity of R.A. No. 95 should be considered obiter.8

Respondent argues that the validity of R.A. No. 95 was a non-issue; therefore, it was
unnecessary for the Court to decide on that question. Respondent cites Laurel v.
Garcia,9 wherein the Court said that it "will not pass upon a constitutional question although
properly presented by the record if the case can be disposed of on some other ground" and goes
on to claim that since this Court, in the Decision, disposed of the petition on some other ground,
i.e., lack of standing of petitioners, there was no need for it to delve into the validity of R.A. No.
95, and the rest of the judgment should be deemed obiter.

In its Motion for Partial Reconsideration, PNRC prays that the Court sustain the constitutionality
of its Charter on the following grounds:

A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS

AMENDED DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE
PROCESS.

1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT CONTROVERSY.

 2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED WAS
NEVER AN ISSUE IN THIS CASE.

B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264 AND NOT
REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. 1264 WAS NOT A CREATION OF
CONGRESS.

C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT IS

PERFORMING HUMANITARIAN FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT IS A
NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT
DOES NOT QUALIFY AS STRICTLY PRIVATE IN CHARACTER.

In his Comment and Manifestation10 filed on November 9, 2009, respondent manifests: (1) that
he agrees with the position taken by the PNRC in its Motion for Partial Reconsideration dated
August 27, 2009; and (2) as of the writing of said Comment and Manifestation, there was
pending before the Congress of the Philippines a proposed bill entitled "An Act Recognizing the
PNRC as an Independent, Autonomous, Non-Governmental Organization Auxiliary to the
Authorities of the Republic of the Philippines in the Humanitarian Field, to be Known as The
Philippine Red Cross."11

After a thorough study of the arguments and points raised by the respondent as well as those of
movant-intervenor in their respective motions, we have reconsidered our pronouncements in our
Decision dated July 15, 2009 with regard to the nature of the PNRC and the constitutionality of
some provisions of the PNRC Charter, R.A. No. 95, as amended.

As correctly pointed out in respondent’s Motion, the issue of constitutionality of R.A. No. 95 was
not raised by the parties, and was not among the issues defined in the body of the Decision;
thus, it was not the very lis mota of the case. We have reiterated the rule as to when the Court
will consider the issue of constitutionality in Alvarez v. PICOP Resources, Inc.,12 thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-
established rule that a court should not pass upon a constitutional question and decide a law to
be unconstitutional or invalid, unless such question is raised by the parties and that when it is
raised, if the record also presents some other ground upon which the court may [rest] its
judgment, that course will be adopted and the constitutional question will be left for consideration
until such question will be unavoidable.13

Under the rule quoted above, therefore, this Court should not have declared void certain
sections of R.A. No. 95, as amended by Presidential Decree (P.D.) Nos. 1264 and 1643, the
PNRC Charter. Instead, the Court should have exercised judicial restraint on this matter,
especially since there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by this declaration of
unconstitutionality, which was not even originally a party to this case, was being compelled, as a
consequence of the Decision, to suddenly reorganize and incorporate under the Corporation
Code, after more than sixty (60) years of existence in this country.

Its existence as a chartered corporation remained unchallenged on ground of unconstitutionality

notwithstanding that R.A. No. 95 was enacted on March 22, 1947 during the effectivity of the
1935 Constitution, which provided for a proscription against the creation of private corporations
by special law, to wit:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization,
or regulation of private corporations, unless such corporations are owned and controlled by the
Government or any subdivision or instrumentality thereof. (Art. XIV, 1935 Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII,
Section 16 of the 1987 Constitution. The latter reads:

SECTION 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled corporations
may be created or established by special charters in the interest of the common good and
subject to the test of economic viability.

Since its enactment, the PNRC Charter was amended several times, particularly on June 11,
1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855,
R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws
relating to the PNRC’s corporate existence notwithstanding the effectivity of the constitutional
proscription on the creation of private corporations by law, is a recognition that the PNRC is not
strictly in the nature of a private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it not just in terms of
structure, but also in terms of history, public service and official status accorded to it by the State
and the international community. There is merit in PNRC’s contention that its structure is sui
generis.

The PNRC succeeded the chapter of the American Red Cross which was in existence in the
Philippines since 1917. It was created by an Act of Congress after the Republic of the Philippines
became an independent nation on July 6, 1946 and proclaimed on February 14, 1947 its
adherence to the Convention of Geneva of July 29, 1929 for the Amelioration of the Condition of
the Wounded and Sick of Armies in the Field (the "Geneva Red Cross Convention"). By that
action the Philippines indicated its desire to participate with the nations of the world in mitigating
the suffering caused by war and to establish in the Philippines a voluntary organization for that
purpose and like other volunteer organizations established in other countries which have ratified
the Geneva Conventions, to promote the health and welfare of the people in peace and in war.14

The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and further amended by
P.D. Nos. 1264 and 1643, show the historical background and legal basis of the creation of the
PNRC by legislative fiat, as a voluntary organization impressed with public interest. Pertinently
R.A. No. 95, as amended by P.D. 1264, provides:

WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894, the nations of the
world unanimously agreed to diminish within their power the evils inherent in war;

WHEREAS, more than one hundred forty nations of the world have ratified or adhered to the
Geneva Conventions of August 12, 1949 for the Amelioration of the Condition of the Wounded
and Sick of Armed Forces in the Field and at Sea, The Prisoners of War, and The Civilian
Population in Time of War referred to in this Charter as the Geneva Conventions;

WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946, and
proclaimed on February 14, 1947 its adherence to the Geneva Conventions of 1929, and by the
action, indicated its desire to participate with the nations of the world in mitigating the suffering
caused by war and to establish in the Philippines a voluntary organization for that purpose as
contemplated by the Geneva Conventions;

WHEREAS, there existed in the Philippines since 1917 a chapter of the American National Red
Cross which was terminated in view of the independence of the Philippines; and

WHEREAS, the volunteer organizations established in other countries which have ratified or
adhered to the Geneva Conventions assist in promoting the health and welfare of their people in
peace and in war, and through their mutual assistance and cooperation directly and through their
international organizations promote better understanding and sympathy among the people of the
world;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972, and General
Order No. 1 dated September 22, 1972, do hereby decree and order that Republic Act No. 95,
Charter of the Philippine National Red Cross (PNRC) as amended by Republic Acts No. 855 and
6373, be further amended as follows:

Section 1. There is hereby created in the Republic of the Philippines a body corporate and politic
to be the voluntary organization officially designated to assist the Republic of the Philippines in
discharging the obligations set forth in the Geneva Conventions and to perform such other duties
as are inherent upon a national Red Cross Society. The national headquarters of this
Corporation shall be located in Metropolitan Manila. (Emphasis supplied.)

The significant public service rendered by the PNRC can be gleaned from Section 3 of its
Charter, which provides:

Section 3. That the purposes of this Corporation shall be as follows:

(a) To provide volunteer aid to the sick and wounded of armed forces in time of war, in
accordance with the spirit of and under the conditions prescribed by the Geneva
Conventions to which the Republic of the Philippines proclaimed its adherence;

(b) For the purposes mentioned in the preceding sub-section, to perform all duties
devolving upon the Corporation as a result of the adherence of the Republic of the
Philippines to the said Convention;

(c) To act in matters of voluntary relief and in accordance with the authorities of the
armed forces as a medium of communication between people of the Republic of the
Philippines and their Armed Forces, in time of peace and in time of war, and to act in
such matters between similar national societies of other governments and the
Governments and people and the Armed Forces of the Republic of the Philippines;

(d) To establish and maintain a system of national and international relief in time of peace
and in time of war and apply the same in meeting and emergency needs caused by
typhoons, flood, fires, earthquakes, and other natural disasters and to devise and carry
on measures for minimizing the suffering caused by such disasters;

(e) To devise and promote such other services in time of peace and in time of war as
may be found desirable in improving the health, safety and welfare of the Filipino people;

(f) To devise such means as to make every citizen and/or resident of the Philippines a
member of the Red Cross.

The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with
the International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up the
International Red Cross and Red Crescent Movement (the Movement). They constitute a
worldwide humanitarian movement, whose mission is:

[T]o prevent and alleviate human suffering wherever it may be found, to protect life and health
and ensure respect for the human being, in particular in times of armed conflict and other
emergencies, to work for the prevention of disease and for the promotion of health and social
welfare, to encourage voluntary service and a constant readiness to give help by the members of
the Movement, and a universal sense of solidarity towards all those in need of its protection and
assistance.15

The PNRC works closely with the ICRC and has been involved in humanitarian activities in the
Philippines since 1982. Among others, these activities in the country include:

1. Giving protection and assistance to civilians displaced or otherwise affected by armed

clashes between the government and armed opposition groups, primarily in Mindanao;

2. Working to minimize the effects of armed hostilities and violence on the population;

3. Visiting detainees; and

4. Promoting awareness of international humanitarian law in the public and private

sectors.16

National Societies such as the PNRC act as auxiliaries to the public authorities of their own
countries in the humanitarian field and provide a range of services including disaster relief and
health and social programmes.

The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS) Position
Paper,17 submitted by the PNRC, is instructive with regard to the elements of the specific nature
of the National Societies such as the PNRC, to wit:

National Societies, such as the Philippine National Red Cross and its sister Red Cross and Red
Crescent Societies, have certain specificities deriving from the 1949 Geneva Convention and the
Statutes of the International Red Cross and Red Crescent Movement (the Movement). They are
also guided by the seven Fundamental Principles of the Red Cross and Red Crescent
Movement: Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and
Universality.

A National Society partakes of a sui generis character. It is a protected component of the Red
Cross movement under Articles 24 and 26 of the First Geneva Convention, especially in times of
armed conflict. These provisions require that the staff of a National Society shall be respected
and protected in all circumstances. Such protection is not ordinarily afforded by an international
treaty to ordinary private entities or even non-governmental organisations (NGOs). This sui
generis character is also emphasized by the Fourth Geneva Convention which holds that an
Occupying Power cannot require any change in the personnel or structure of a National
Society. National societies are therefore organizations that are directly regulated by
international humanitarian law, in contrast to other ordinary private entities, including
NGOs.

xxxx

In addition, National Societies are not only officially recognized by their public authorities as
voluntary aid societies, auxiliary to the public authorities in the humanitarian field, but also benefit
from recognition at the International level. This is considered to be an element distinguishing
National Societies from other organisations (mainly NGOs) and other forms of humanitarian
response.

x x x. No other organisation belongs to a world-wide Movement in which all Societies have equal
status and share equal responsibilities and duties in helping each other. This is considered to be
the essence of the Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the public authorities in
the humanitarian field. x x x.

The auxiliary status of [a] Red Cross Society means that it is at one and the same time a
private institution and a public service organization because the very nature of its work
implies cooperation with the authorities, a link with the State. In carrying out their major
functions, Red Cross Societies give their humanitarian support to official bodies, in general
having larger resources than the Societies, working towards comparable ends in a given sector.

x x x No other organization has a duty to be its government’s humanitarian partner while

remaining independent.18(Emphases ours.)

It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained valid
and effective from the time of its enactment in March 22, 1947 under the 1935 Constitution and
during the effectivity of the 1973 Constitution and the 1987 Constitution.

The PNRC Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.

In the Decision, the Court, citing Feliciano v. Commission on Audit,19 explained that the purpose
of the constitutional provision prohibiting Congress from creating private corporations was to
prevent the granting of special privileges to certain individuals, families, or groups, which were
denied to other groups. Based on the above discussion, it can be seen that the PNRC Charter
does not come within the spirit of this constitutional provision, as it does not grant special
privileges to a particular individual, family, or group, but creates an entity that strives to serve the
common good.

Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987
Constitution will hinder the State in adopting measures that will serve the public good or national
interest. It should be noted that a special law, R.A. No. 9520, the Philippine Cooperative Code of
2008, and not the general corporation code, vests corporate power and capacities upon
cooperatives which are private corporations, in order to implement the State’s avowed policy.

In the Decision of July 15, 2009, the Court recognized the public service rendered by the PNRC
as the government’s partner in the observance of its international commitments, to wit:

The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is

to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable
without consideration of nationality, race, religion, gender, social status, or political affiliation. The
PNRC provides six major services: Blood Services, Disaster Management, Safety Services,
Community Health and Nursing, Social Services and Voluntary Service.

The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as
a voluntary organization for the purpose contemplated in the Geneva Convention of 27 July
1929. x x x.20 (Citations omitted.)

So must this Court recognize too the country’s adherence to the Geneva Convention and
respect the unique status of the PNRC in consonance with its treaty obligations. The
Geneva Convention has the force and effect of law.21 Under the Constitution, the Philippines
adopts the generally accepted principles of international law as part of the law of the land.22 This
constitutional provision must be reconciled and harmonized with Article XII, Section 16 of the
Constitution, instead of using the latter to negate the former.

By requiring the PNRC to organize under the Corporation Code just like any other private
corporation, the Decision of July 15, 2009 lost sight of the PNRC’s special status under
international humanitarian law and as an auxiliary of the State, designated to assist it in
discharging its obligations under the Geneva Conventions. Although the PNRC is called to be
independent under its Fundamental Principles, it interprets such independence as inclusive of its
duty to be the government’s humanitarian partner. To be recognized in the International
Committee, the PNRC must have an autonomous status, and carry out its humanitarian mission
in a neutral and impartial manner.

However, in accordance with the Fundamental Principle of Voluntary Service of National

Societies of the Movement, the PNRC must be distinguished from private and profit-making
entities. It is the main characteristic of National Societies that they "are not inspired by the desire
for financial gain but by individual commitment and devotion to a humanitarian purpose freely
chosen or accepted as part of the service that National Societies through its volunteers and/or
members render to the Community."23

The PNRC, as a National Society of the International Red Cross and Red Crescent Movement,
can neither "be classified as an instrumentality of the State, so as not to lose its character of
neutrality" as well as its independence, nor strictly as a private corporation since it is regulated by
international humanitarian law and is treated as an auxiliary of the State.24

Based on the above, the sui generis status of the PNRC is now sufficiently
established. Although it is neither a subdivision, agency, or instrumentality of the government,
1âwphi1

nor a government-owned or -controlled corporation or a subsidiary thereof, as succinctly

explained in the Decision of July 15, 2009, so much so that respondent, under the Decision, was
correctly allowed to hold his position as Chairman thereof concurrently while he served as a
Senator, such a conclusion does not ipso facto imply that the PNRC is a "private corporation"
within the contemplation of the provision of the Constitution, that must be organized under the
Corporation Code. As correctly mentioned by Justice Roberto A. Abad, the sui generis character
of PNRC requires us to approach controversies involving the PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government in
the humanitarian field in accordance with its commitments under international law. This Court
cannot all of a sudden refuse to recognize its existence, especially since the issue of the
constitutionality of the PNRC Charter was never raised by the parties. It bears emphasizing that
the PNRC has responded to almost all national disasters since 1947, and is widely known to
provide a substantial portion of the country’s blood requirements. Its humanitarian work is
unparalleled. The Court should not shake its existence to the core in an untimely and drastic
manner that would not only have negative consequences to those who depend on it in times of
disaster and armed hostilities but also have adverse effects on the image of the Philippines in the
international community. The sections of the PNRC Charter that were declared void must
therefore stay.

WHEREFORE, premises considered, respondent Richard J. Gordon’s Motion for Clarification

and/or for Reconsideration and movant-intervenor PNRC’s Motion for Partial Reconsideration of
the Decision in G.R. No. 175352 dated July 15, 2009 are GRANTED. The constitutionality of R.A.
No. 95, as amended, the charter of the Philippine National Red Cross, was not raised by the
parties as an issue and should not have been passed upon by this Court. The structure of the
PNRC is sui generis¸ being neither strictly private nor public in nature. R.A. No. 95 remains valid
and constitutional in its entirety. The dispositive portion of the Decision should therefore be
MODIFIED by deleting the second sentence, to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.

SO ORDERED.
G.R. No. 190120 November 11, 2014

CIVIL AVIATION AUTHORITY OF THE PHILIPPINES EMPLOYEES' UNION (CAAP-EU)

FORMERLY AIR TRANSPORTATION EMPLOYEES' UNION (ATEU), Petitioner,
vs.
CIVIL AVIATION AUTHORITY OF THE PHILIPPINES (CAAP); HON. LEANDRO R.
MENDOZA, Secretary, Department of Transportation and Communications, in his capacity
as Ex-Officio CAAP Chairman of the Board; RUBEN F. CIRON, PhD, Acting Director
General, in his capacity as CAAP Ex Officio Vice Chairman; HON. AGNES VST. DEV
ANADERA, Acting Secretary, Department of Justice, HON. MARGARITO B. TEVES,
Secretary, Department of Finance, HON. ALBERTO G. ROMULO, Secretary, Department of
Foreign Affairs, HON. RONALDO V. PUNO, Secretary, Department of Interior and Local
Government, HON. MARIANITO D. ROQUE, Secretary, Department of Labor and
Employment, and HON. JOSEPH ACE H. DURANO, Secretary, Department of Tourism, in
their capacity as Ex-Officio MEMBERS CAAP Board of Directors; DEPARTMENT OF
BUDGET AND MANAGEMENT (DBM); HON. ROLANDO C. ANDAYA, JR., in his capacity as
Secretary of the Department of Budget and Management; CIVIL SERVICE COMMISSION
(CSC); HON. CESAR D. BUENAFLOR and HON. MARY Z. FERNANDEZ-MENDOZA, in their
capacity as Commissioners of the Civil Service Commission; EDUARDO E. KAPUNAN,
JR., in his capacity as DeputyDirector General for Administrationof CAAP and as
Chairman, CAAP Selection Committee; and ROLANDO P. MANLAPIG, in his capacity as
Chairman, CAAP Special Selection Committee, Respondents.

DECISION

VILLARAMA, JR., J.:

Before this Court is an Amended Petition1 for Prohibition with prayer for the issuance of a
Temporary Restraining Order (TRO) and a Writ of Preliminary Injunction filed by petitioner Civil
Aviation Authority of the Philippines Employees’ Union (CAAP-EU) formerly Air Transportation
Employees’ Union (ATEU) (petitioner) – a legitimate union of employees of respondent Civil
Aviation Authority of the Philippines (CAAP). Petitioner prays that the Court direct all respondents
to desist from promulgating and implementing Authority Orders, Memoranda and all other
issuances relating to the filling up of positions within the CAAP whether existing or newly created,
and praying that the Court nullify and set aside the following:

a. Authority Order No. 77-08;2

b. Authority Order No. 118-08;3

c. Authority Order No. 139-08;4

d. Authority Order No. 163-08;5

e. Authority Order No. 172-08;6

f. Authority Order No. 173-08;7

g. Authority Order No. 181-08;8

h. Authority Order No. 81-09;9

i. Authority Order No. 82-09;10 and

j. Authority Order No. 83-0911

all issued by respondent Ruben F. Ciron, former Acting Director General of the CAAP allegedly
with grave abuse of discretion amounting to lack of or in excess of jurisdiction. Petitioner asserts
that such grave abuse of discretion was shown by the issuances of said Authority Orders and
Memoranda which resulted in the classification and treatment of the incumbent personnel of the
Air Transportation Office (ATO), now of CAAP, into "hold-over" status, thus violating the
provisions of Republic Act (R.A.) No. 949712 otherwise known as the Civil Aviation Authority Act
of 2008 and the security of tenure of government employees guaranteed by the 1987
Constitution and R.A. No. 6656.13

A brief historical background of the CAAP is in order.14

On November 20, 1931, the Philippine Legislature passed Act No. 390915 providing that the
Secretary ofthe Department of Commerce and Communications has the duty, among others, to
foster air commerce, encourage the establishment of airports, civil airways and other navigation
facilities and investigate causes of air mishaps. As such, said Secretary has the power to
administer and enforce air traffic rules, issue or revoke licenses and issue regulations necessary
to execute his vested functions.

On December 5, 1932, Act No. 399616 amended Act No. 3909 as to matters concerning the
licensing of airmen and aircraft, inspection of aircraft, air traffic rules, schedules and rates and
enforcement of aviation laws.

On December 9, 1932, Act No. 403317 was approved, providing, among others, that no aviation
public service, including those of foreign aircrafts, shall operate in the Philippines without having
first secured from the Philippine Legislature a franchise to operate an air service.18 CAAP
narrated that from 1932 to 1936, there were no standard procedures as to the licensing of
airmen, registration of aircraft and recording of various aeronautical activities connected with
commercial aviation. There were attempts made to register planes and their owners without
ascertaining their airworthiness and to record names of pilots, airplane mechanics and other
details. It was also narrated that in 1933, the office of Technical Assistant of Aviation Matters was
expanded into the Aeronautics Division under the Department of Commerce and Industry, the
functions of which were embodied in Administrative Order No. 309, a joint Bulletin issued by the
Department of Public Works and Communications and the Department of Finance.19

On November 12, 1936, the National Assembly passed Commonwealth Act No. 168,20 otherwise
known as the Civil Aviation Law of the Philippines, creating the Bureauof Aeronautics and
organizing the same under the Department of Public Works and Communications.21 After the
liberation of the Philippines in March 1945, the Bureau was reorganized and placed under the
Department of National Defense. Among its functions was to promulgate civil aviation
regulations.22

On October, 1947, Executive Order (E.O.) No. 94 which reorganized the government, transferred
the Bureau of Aeronautics to the newly created Department of Commerce and Industry and
renamed the same as the Civil Aeronautics Administration (CAA).23

On June 5, 1948, R.A. No. 22424 created the National Airports Corporation, serving as an agency
of the Republic of the Philippines for the development, administration, operation and
management of government owned landing fields in the country25 except for those controlled
and/or operated by the Armed Forces.

On November 10, 1950, the National Airports Corporation was abolished by E.O. No. 36526 and
was replaced by the CAA.27

On June 20, 1952, R.A. No. 776,28 otherwise known as the Civil Aeronautics Act of the
Philippines, was passed, reorganizing the Civil Aeronautics Board and the CAA, defining their
respective powers and duties, making adjustments as to the funds and personnel and regulating
civil aeronautics. Under R.A. No. 776, the CAA was charged with the duty of planning, designing,
constructing, equipping, expanding, improving, repairing or altering aerodromes or such other
structures, improvements or air navigation facilities.29

On October 19, 1956, former President Ramon Magsaysay issued E.O. No. 209,30 transferring in
totothe CAA to the Department of Public Works, Transportation and Communications from the
Department of Commerce and Industry.31

On January 20, 1975, Letter of Instruction No. 244, series of 1975,32 directed that all funds for the
preliminary engineering, construction and maintenance of all national airports appropriated for
the fiscal year 1974-75 be transferred and/or released to the Department of Public Highways.
The responsibilities related to location, planning design and funding were later returned to the
CAA.33

On July 23, 1979, former President Ferdinand E. Marcos issued E.O. No. 546,34 renaming the
CAA as the Bureauof Air Transportation (BAT) and placing the same under the Ministry of
Transportation and Communications.35

Subsequently, BAT, though reorganized, was maintained under E.O. No. 12536 issued by former
President Corazon C. Aquino (President Aquino) on January 30, 1987. Shortly thereafter or on
April 13, 1987, President Aquino issued E.O. No. 125-A37 renaming BAT to ATO which would be
headed by the Assistant Secretary ofthe Office of Air Transportation.38 Section 1239 of said E.O.
No. 125 which contained the proviso concerning BAT was deleted by Section 240 of E.O. No. 125-
A.

As duly claimed by petitioner, sometime in the middle of 1995, the Philippine civil aviation safety
oversight capability was downgraded by the United States of America (USA) through her Federal
Aviation Administration (FAA) International Aviation Safety Assessment (IASA) into a Category
241 status. A Category 2 rating means a country either lacks laws or regulations necessary to
oversee air carriers in accordance withminimum international standards, or that its civil aviation
authority – equivalent to the FAA for aviation safety matters – is deficient inone or more areas,
such as technical expertise, trained personnel, record keeping orinspection procedures.
Correlatively, a Category 1 rating means a country’s civil aviation authority complies with the
International Civil Aviation Organization42 (ICAO) standards, thus, her air carriers can add flights
and services to the USA and carry the code of USA carriers.43 Petitioner attested that sometime
in the first quarter of 1997, the Category 1 status was regained by the Philippines as it was
successfully initiated by the organic/incumbent personnel of the defunct ATO.

However, sometime in January 2008, the FAA reverted the Philippines to its 1995 air safety
rating of Category 2 from Category 1 because of air safety regulations, practices and personnel
that fell below the standards of the ICAO.44

Thus, on March 4, 2008, R.A. No. 9497 was passed, whereby ATO was replaced by CAAP, to be
headed by the Director General of Civil Aviation. Pursuant to Sections 445 and 8546 thereof, the
ATO was abolished, and all its powers were transferred to the CAAP. To ensure the smooth
transition from ATO to CAAP, Section 8647 of R.A. No. 9497 directed the Assistant Secretary of
the ATO to continue to hold office and assume the powers of the CAAP Director General until his
successor shall have been appointed and inducted into office in accordance with said law.
Likewise, retirement packages were provided to ATO employees who were willing to retire from
the service.

On July 2, 2008, former President Gloria Macapagal-Arroyo appointed Ruben F. Ciron as Acting
Director General of the CAAP.48 Immediately upon assumption of office, Ciron issued orders and
memoranda for the active participation of incumbent and organic personnel of the defunct ATO
along with his hired consultants in the crafting and formulation of the Implementing Rules and
Regulations (IRR) of R.A. No. 9497, the new Organizational Structure and Staffing Pattern
(OSSP) and the Qualification Standards (QS) for the proposed new plantilla of positions within
the CAAP.

Accordingly, the Board of Directors of CAAP prepared its OSSP and the IRR of R.A. No. 9497,
both of which were approved in Board Resolution No. 08-00149 dated July 30, 2008. Pursuant to
Section 9050 of R.A. No. 9497, the IRR was formulated and was subsequently published in two
newspapers of general circulation.51 Pertinently, Section 60 (a) of the IRR provides that the
incumbent personnel ofthe former ATO shall continue to hold office in hold-over capacity until
such time as the new Staffing Pattern and Manning shall have been approved by the Board and
implemented by the CAAP Director General. Thereafter, the management of CAAP endorsed its
OSSP for the approval of respondent Department of Budget and Management (DBM) in view of
the latter’s authority to review reorganization details of government agencies. The OSSP was
approved on July 20, 2009.52 However, petitioner lamented, among others, that the IRR, OSSP
and QS approved by the CAAP Board of Directors were different from that agreed upon by the
incumbent ATO personnel and Director General Ciron and his consultants.

Subsequently, Senate Concurrent Resolution No. 1053 and House Concurrent Resolution No.
2754 were issued, which clarified, among others, the intent of the lawmakers as regards the
abolition of ATO; the hold-over status of qualified employees of ATO and the preferential status
of the said employees with respect to the filling up of CAAP plantilla positions.

Aggrieved, on November 20, 2009, petitioner filed the Original Petition for Prohibition55 directly
before this Court. Said petition was subsequently amended on November 25, 2009. It assails the
aforementioned Authority Orders, Memoranda and other issuances related to the selection and
filling up of positions issued by Director General Ciron and seeks the nullification thereof
including the IRR of R.A. No. 9497, the OSSP and QS for the employees of CAAP.

Petitioner invokes the following grounds:

I.

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION IN ISSUING AND IMPLEMENTING AUTHORITY ORDERS,
MEMORANDA AND ALL OTHER ISSUANCES RELATED TO THE SELECTION AND FILLING
UP OFPOSITIONS IN THE CAAP, WHETHER EXISTING OR NEWLY CREATED,
CONSIDERING THE ABSENCE OF POSITIONS, ITEM NUMBERS, QUALIFICATION
STANDARDS AND PUBLICATION, WHICH ARE INDISPENSABLE REQUIREMENTS PRIOR
TOTHE SELECTION AND APPOINTMENT TO ANY GOVERNMENT POST [; AND]

II.

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION IN EXPANDING THE APPLICABILITY OF THE "HOLD-OVER"
STATUS IN THE IMPLEMENTING RULES AND REGULATIONS OF R.A. 9497, THUS
VIOLATING THE EXPRESS PROVISIONS OF R.A. 9497 AND THE SECURITY OF TENURE
OF GOVERNMENT EMPLOYEES GUARANTEED BY THE 1987 CONSTITUTION AND R.A.
6656.56

Petitioner explains that it directly sought recourse from this Court because there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of law. Even ifthere would
be any remedy, petitioner submits that such would be ineffective given the brazenness of
respondents’ official actions. Petitioner also claims that it sought redress from the different
agencies of the government butits actions were an exercise in futility because said agencies
failed to act on its grievances. Petitioner further avers that since it represents government
employees in an agency which is national in scopeand whose function is highly imbued with
public interest affecting national security and the economy, it would be paramount that its issues
be resolved by this Court.57

On the merits, petitioner argues, among others, that respondents committed grave abuse of
discretion in the issuance and implementation of the assailed Authority Orders and Memoranda
because they placed the tenure of the CAAP personnel in jeopardy in clear violation of the
latter’s security of tenure which is protected by the 1987 Constitution58 and R.A. No. 6656.
Petitioner points out that while Sections 85 and 86 of R.A. No. 9497 literally abolished ATO,
nevertheless, the tenor of the provisions thereof simply perpetuated and assumed the core of
civil aviation regulatory functions, powers, and authority, including all assets of the defunct ATO.
Petitioner also invokes the Minutes of the Discussion of the Bicameral Conference Committee on
the Disagreeing Provisions of HBN 3156 and the amendments agreed upon on "The Creation of
the Civil Aviation Authority,"59 and asserts that the real intention of R.A. No. 9497 was merely
reorganization of the agency and notits entire abolition. Purportedly, abolition of an office cannot
have the effect of removing an officer holding it if the office is restored under another name.
Petitioner further contends that while Section 86 of R.A. No. 9497 categorically states that "the
incumbent Assistant Secretary of the ATO shall continue to hold office and assume the powers of
the Director General until his successor shall have been appointed and inducted into office," the
law made no mention of the status of the employment of the personnel of the defunct ATO. The
employees’ hold-over status as indicated in the IRR and in the Joint Senate Resolutions is
opposed to Section 86 of R.A. No. 9497 which merely limits such status to the incumbent
Assistant Secretary of the ATO as acting CAAP Director General. Likewise, petitioner asserts
that the IRR expanded and modified the law and that the legislature through the issuance of said
Resolutions encroached on the functions of this Court in interpreting the same. All told, petitioner
submits that R.A. No. 9497 simply mandated that the selection and appointment of the heads of
offices within CAAP are limited to the rank-and-file employees of the concerned or corresponding
offices of the defunct ATO and that the personnel of the same, unless they opted to retire, are
legally deemed transferred to the newly created CAAP. The hold-over status accorded to the
incumbent personnel of the ATO deviated from the law and the same personnel were placedin a
disadvantageous situation and were stripped of their security of tenure.60

On the other hand, CAAP through the Office of the Government Corporate Counsel (OGCC)
counters that the issue regarding the nullification of the assailed Authority Orders has become
moot and academic. The OGCC asseverates that when the new CAAP Director General Alfonso
G. Cusi (Director General Cusi) assumed office, he issued a Memorandum61 dated March 12,
2010 which provided that coterminous employees, consultants and job-order employees are
deemed not employed under the CAAP unless reappointed orrenewed, thus terminating the
services of all the personnel appointed by Director General Ciron. The OGCC submits that there
being no justiciable controversy, there is nothing for this Court to adjudicate. Moreover, the
OGCC advances the view that petitioner failed to establish its right to injunctive relief as its bare
and selfserving allegations failed to overthrow the presumption that CAAP regularly performed its
official functions in the promulgation and/or implementation of the assailed orders. The OGCC
alsosubmits that petitioner disregarded the basic principle of the hierarchy of courts and the
doctrine that this Court is not a trier of facts when petitioner directly filed the instant petition
before us. The OGCC points out that, despite petitioner’s claim that it sought redress from
different government agencies, petitioner failed to substantiate such claim. The selection
processes assailed by petitioner, according to the OGCC, constitute triable facts and necessitate
the determination and resolution of factual issues. Lastly, the OGCC questions the legal
personality of petitioner to file the petition in behalf of the CAAP employees. The OGCC posits
that while petitioner was registered as the employees’ union of the now abolished ATO, petitioner
was not registered with the CSC.62

On this point, respondents DBM and CSC through the Office of the Solicitor General (OSG)
opine that DBM acted within the scope of its authority when it approved the OSSP ofthe CAAP
on July 20, 2009 as the same was done in the performance of DBM’s official functions as
provided under E.O. No. 165, series of 1987.63 With its bare and unsubstantiated allegations,
petitioner failed to prove that DBM acted with grave abuse of discretion in the approval thereof.
Moreover, invoking that ATO was effectively abolished by R.A. No. 9497,the OSG defends the
validity of Section 60(a) of the IRR which states that the incumbent personnel of the ATO shall
continue to hold office in a "hold[-]over capacity until such time [that a] new [s]taffing [p]attern
and [m]anning [is] approved by the Board." The OSG posits that while it is true that an incumbent
employee of the defunct ATO is given preference in the filling up of a plantilla position, said
employee does not automatically qualify to the position he is presently holding. Thus, said
employee still has toqualify under the new and approved staffing pattern and the new QS set by
the CSC. Such approved QS shall be used as the standard minimum qualification requirements
for purposes of appointments per CSC Memorandum Circular No. 03, series of 1991. However, if
the incumbent fails to qualify, the affected employee may choose from the retirement packages
provided under R.A. No. 9497 itself.64 The OSG asserts that in this case the employees’ right to
security of tenure as embodied under Section 2(3),65 Article IX-B of the 1987 Constitution is not
undermined. The OSG avers thatthe CSC has not yet received any appointments from the CAAP
for attestation; hence, to restrain the CSC is premature.66

In essence, the issues for our resolution are:

1. Whether ATO was abolished under R.A. No. 9497;

2. Whether the incumbent ATO employees’ constitutional right to security of tenure was
impaired; and

3. Whether there was grave abuse of discretion when Section 60 of the IRR provided a
"hold-over" status for ATO employees, which was not expressly provided for under R.A.
No. 9497. Prefatorily, we rule that petitioner has locus standi. Petitioner impugns the
constitutionality of the IRR of R.A. No. 9497 and assailsthe validity of the abolition of the
ATO and respondents’ acts in filling up positions within CAAP. Petitioner’s members are
all employees of the defunct ATO and are actually covered by the law and its IRR. Thus,
they have a personal and substantial interest in the case, such thatthey will sustain direct
injury as a result of the enforcement of R.A. No. 9497 and its IRR.67

The Court agrees with the postulation of the OGCC that the nullification of the assailed Authority
Orders has become moot and academic considering that Director General Cusi already issued a
Memorandum68 dated March 12, 2010, terminating the services of all the personnel appointed by
Director General Ciron. An issue is said to have become moot and academic when it ceases to
present a justiciable controversy so that a declaration on the issue would be of no practical use
or value.69 The Court will therefore abstain from expressing its opinion in a case where no legal
relief is needed or called for.70

Nevertheless, despite this moot issue and the presence of some procedural flaws in the instant
petition, such as petitioner’s disregard of the hierarchy of courts and the non-exhaustion of
administrative remedies, we deem it necessary to address the essential issues. It is in the
interest of the State that questions relating to the status and existence of a public office be
settled without delay.71

That being said, we rule that the petition is bereft of merit.

The first issue is resolved in the affirmative.

Well entrenched in this jurisdiction is the rule that the power to abolish a public office is lodged
with the legislature. This proceeds from the legal precept that the power to create includes the
power to destroy. A public office is created either by the Constitution, by statute, or by authority
of law. Thus, except where the office was created by the Constitution itself, it may be abolished
by the same legislature that brought it into existence.72
Indubitably, this is the case at hand. The legislature through R.A. No. 9497 abolished the ATO as
explicitly stated in Sections 4 and 85 thereof, viz:

SEC. 4. Creation of the Authority. – There is hereby created an independent regulatory body with
quasi-judicial and quasi-legislative powers and possessing corporate attributes to be known as
the Civil Aviation Authority of the Philippines (CAAP), hereinafter referred to as the "Authority",
attached to the Department of Transportation and Communications (DOTC) for the purpose of
policy coordination. For this purpose, the existing Air Transportation Office created under the
provisions of Republic Act No. 776, as amended, is hereby abolished.

xxxx

SEC. 85. Abolition of the Air Transportation Office. – The Air Transportation Office (ATO) created
under Republic Act No. 776, a sectoral office of the Department of Transportation and

Communications (DOTC), is hereby abolished.

All powers, duties and rights vested by law and exercised by the ATO is hereby transferred to the
Authority.

All assets, real and personal properties, funds and revenues owned by or vested in the different
officesof the ATO are transferred to the Authority. All contracts, records and documents relating
to the operations of the abolished agency and its offices and branches are likewise transferred to
the Authority. Any real property owned by the national government or government-owned
corporation or authority which is being used and utilized as office or facility by the ATO shall be
transferred and titled in favor of the Authority. (Emphasis supplied)

Verily, the question whether a law abolishes an office is a question of legislative intent. In this
case, petitioner tries to raise doubts as to the real intention of Congress. However, there should
not be any controversy if there is an explicit declaration of abolition in the law itself.73 For where a
statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied
without attempt to interpret. Verba legis non est recedendum, index animi sermo est. There
should be no departure from the words of the statute, for speech is the index of intention.74 The
legislature, through Sections 4 and 85 of R.A. No. 9497, has so clearly provided. As the Court
merely interprets the law as it is, we have no discretion to give statutes a meaning detached from
the manifest intendment and language thereof.75

It is worth mentioning that this is not the first time for this Court to rule regarding the abolition of
the ATO and the emergence of the CAAP by virtue of R.A. No. 9497. Holding thatthe CAAP, as
the legal successor of the ATO, is liable to respondents therein for obligations incurred by ATO,
this Court in Air Transportation Office v. Ramos,76 in no uncertain terms, held that the ATO was
abolished by virtue of Sections 4 and 85 of R.A. No. 9497.

Thus, we find petitioner’s assertion thatthe real intention of R.A. No. 9497 was merely the
reorganization ofthe ATO and not its abolition devoid of merit.

Correlatively, we resolve the second issue in the negative.

For the ATO employees’ security of tenure to be impaired, the abolition of the ATO must be done
in bad faith.

At this juncture, our ruling in Kapisanan ng mga Kawani ng Energy Regulatory Board v. Barin77 is
instructive, to wit:
A valid order of abolition must not only come from a legitimate body, it must also be made in
good faith. An abolition is made in good faith when it is not made for political or personal
reasons, or when it does not circumvent the constitutional security of tenure of civil service
employees. Abolition of an office may be brought about by reasons of economy, or to remove
redundancy of functions, or a clear and explicit constitutional mandate for such termination of
employment.Where one office is abolished and replaced with another office vested with similar
functions, the abolition is a legal nullity. When there is a void abolition, the incumbent is deemed
to have never ceased holding office.

We have also held that, other thanthe aforestated reasons of economy, making the bureaucracy
more efficient is also indicative of the exercise of good faith in, and a valid purpose for, the
abolition of an office.78

The purpose for the abolition of the ATO is clearly manifested in Section 2 of R.A. No. 9497:
SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State to provide safe and
efficient air transport and regulatory services in the Philippines by providing for the creation of a
civil aviation authority with jurisdiction over the restructuring of the civil aviation system, the
promotion, development and regulation of the technical, operational, safety, and aviation security
functions under the civil aviation authority. (Emphasis supplied)

It cannot be disregarded that in January 2008, before the enactment of R.A. No. 9497, the
Philippines was again downgraded by the FAA to a Category 2 status because of air safety
regulations, practices and personnel which fell below the ICAO’s standards. Hence, it is but
reasonable to state that the purpose for the abolition of the ATO, as posited by petitioner itself,
was "to create a much more effective Agency in order to address the problems that go along with
the fast emerging developments in the field of the globally-competitive aviation industry."79

On the other hand, circumstances evidencing bad faith are enumerated in Section 2 of R.A. No.
6656 which provides:

SEC. 2. No officer or employee in the career service shall be removed except for a valid cause
and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant or there is a need to merge,
divide, or consolidate positions in order to meet the exigencies of the service, or other lawful
causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of
reorganization, giving rise toa claim for reinstatement or reappointment by an aggrieved party: (a)
Where there is a significant increase in the number of positions in the new staffing pattern of the
department or agency concerned;

(b) Where an office is abolished and another performing substantially the same functions
is created;

(c) Where incumbents are replaced by those less qualified in terms of status of
appointment, performance and merit;

(d) Where there is a reclassification of offices in the department or agency concerned

and the reclassified offices perform substantially the same functions as the original
offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof.
(Emphasis supplied)

Petitioner posits that abolition of an office cannot have the effect of removing an officer holding it
if the office is restored under another name. However, we find no bad faith in the abolition of the
ATO as the latter was not simply restored in another name in the person of the CAAP. Thus, we
compare the ATO and the CAAP.

ATO was merely a sectoral office of the Department of Transportation and Communications
(DOTC) and as suchacted within the supervision of the latter and budgeted under it. As Section 2
of E.O. No. 125-A, series of 1987 deleted Section 1280 of E.O. No. 125, seriesof 1987 which
delineated the functions of the former BAT, werely on R.A. No. 776 in citing the functions of the
CAA which were succeeded by the ATO through the powers and duties of the CAA
Administrator. Section 32 of R.A. No. 776 provides:

SEC. 32. Powers and duties of the Administrator. – Subject to the general control and
supervision of the Department Head, the Administrator shall have among others, the following
powers and duties:

(1) To carry out the purposes and policies established in this Act; to enforce the
provisions of, the rules and regulations issued in pursuance to, said Act; and he shall
primarily be vested with authority to take charge of the technical and operational phase of
civil aviation matters.

(2) To designate and establish civil airways, and to acquire, control, operate and maintain
along such airways, air navigation facilities and to chart such airways and arrange for
their publication including the aeronautical charts or maps required by the international
aeronautical agencies by utilizing the equipment, supplies or assistance of existing
agencies of the government as far as practicable.

(3) To issue airman’s certificate specifying the capacity in which the holder thereof is
authorized to serve as airman in connection with aircraft and shall be issued only upon
the finding that the applicant is properly qualified and physically able to perform the
duties of the position. The certificate shall contain such terms, conditions and limitations
as the Administrator may determine to be necessary to assure safety in air commerce:
Provided, however,That the airman’s license shall be issued only to qualified persons
who are citizens of the Philippines or qualified citizens of countries granting similar rights
and privileges to citizens of the Philippines.

(4) To issue airworthiness certificate for aircraft which shall prescribe the duration of such
certificate, the type of service for which the aircraft may be used, and such other terms
and conditions and limitations as are required.

(5) To issue air carrier operating certificate and to establish minimum safety standards for
the operation of the air carrier to whom such certificate is issued. The air carrier operating
certificate shall be issued only to aircrafts registered under the provisions of this Act.

(6) To issue type certificate for aircraft, aircraft engine, propellers and appliances.

(7) To inspect, classify and rateany air navigation facilities and aerodromes available for
the use of aircraft as to its suitability for such use and to issue a certificate for such air
navigation facility and aerodrome; and to determine the suitability offoreign aerodromes,
air navigation facilities as well as air routes to be used prior to the operation of Philippine
registered aircraft in foreign air transportation and from time to time thereafter as may be
required in the interest of safety in air commerce.

(8) To issue certificates of persons or civil aviation schools giving instruction in flying,
repairstations, and other air agencies and provide for the examination and rating thereof.

(9) To promulgate rules and regulations as may be necessary in the interest of safety in
air commerce pertaining to the issuance of the airman’s certificate, including licensing of
operating and mechanical personnel, type certificate for aircraft, aircraft engines,
propellers and appliances, airworthiness certificate, air carrier operating certificate, air
agency certificate, navigation facilityand aerodrome certificate; air traffic routes; radio and
aeronautical telecommunications and air navigation aids; aircraft accident inquiry;
aerodromes, both public and private owned; construction of obstructions to aerodromes;
registration of aircraft; search and rescue; facilitation of air transport; operations of
aircraft, both for domestic and international, including scheduled and non-scheduled;
meteorology in relation to civil aviation; rules of the air; air traffic services; rules for
prevention of collision of aircraft; identification of aircraft; rules for safe altitudes of flight;
and such other rules, regulations, standards, governing other practices, methods,
procedures as the Administrator may find necessary and appropriate to provide
adequately for safety, regularity and efficiency in air commerce and air navigation.

(10) To provide for the enforcement of the rules and regulations issued under the
provisions of this Act and to conduct investigations for violations thereto. In undertaking
such investigation, to require by subpoena or subpoena duces tecum, the attendance
and testimony of witness, the production of books, papers, documents, exhibit matters,
evidence, or the taking of depositions before any person authorized to administer oath.
Refusal to submit tothe reasonable requirements of the investigation committee shall be
punishable in accordance with the provisions of this Act.

(11) To investigate accidents involving aircraft and report to the Civil Aeronautics Board
the facts, conditions and circumstances relating to the accidents and the probable cause
thereof; and to make such recommendations to the Civil Aeronautics Board as may tend
to prevent similar accidents in the future: Provided, That when any accident has resulted
in serious or fatal injury, the Civil Aeronautics Board shall make public such report and
recommendations: And provided, further, That no report on any accident or any
statement made during any investigation or during hearing relative to such accident may
be admitted as evidence or used for any purpose in any civil suitgrowing out of any
matter revealed within any such report, statement, investigation or hearing.

(12) To collect and disseminate information relative to civil aeronautics and the
development of air commerce and the aeronautical industry; to exchange with foreign
governments, information pertaining to civil aeronautics; and to provide for direct
communication all matters relating to the technical or operational phase of aeronautics
with international aeronautical agencies.

(13) To acquire and operate such aircraft as may be necessary to execute the duties and
functions of the Civil Aeronautics Administration prescribed in this Act.

(14) To plan, design, acquire, establish, construct, operate, improve, maintain, and repair
necessary aerodromes and other air navigation facilities.

(15) To impose and fix, except those mentioned in section forty, paragraph twenty-five
and hereinafter provided, reasonable charges and fees for the use of government
aerodromes or air navigation facilities; for services rendered by the Civil Aeronautics
Administration in the rating of any aerodrome or air navigation facilities, civil aviation
schools and instructions, aircraft repair stations, and aircraft radio and aeronautical
telecommunications stations. To collectand receive charges and fees for the registration
of aircraft and for the issuance and/or renewal of licenses or certificates for aircraft,
aircraft engines, propellers and appliances, and airmen as provided in this Act.

(16) To fix the reasonable charges to be imposed in the use of privately owned air
navigation facilities and aerodromes.

(17) To impose fines and/or civil penalties and make compromises in respect thereto.
 (18) To adopt a system for registration of aircraft as hereinafter provided.

(19) To participate actively with the largest possible degree in the development of
international standardization of practices in aviation matters important to safe,
expeditious, and easy navigation, and to implement as far as practicable the international
standards, recommended practices, and policies adopted by appropriate international
aeronautical agencies.

(20) To exercise and perform itspowers and duties under this Act consistent with any
obligation assumed by the Republic of the Philippines in any treaty, convention or
agreement on civil aviation matters.

(21) To cooperate, assist and coordinate with any research and technical agency of the
Government on matters relating to research and technical studies on design, materials,
workmanship, construction, performance, maintenance and operation of aircraft, aircraft
engines, propellers, appliances, and air navigation facilities including aircraft fuel and oil:
Provided, That nothing in this Act shall be construed to authorize the duplication of the
laboratory research, activities or technical studies of any existing governmental agency.

(22) To designate such prohibited and danger areas, in consonance with the
requirements of the international aeronautical agencies and national security.

(23) To issue, deny, cancel or revoke any certificate, permit or license pertaining to
aircraft, airmen, and air agencies: Provided, That any order denying, cancelling, revoking
the certificate, permit or license may be appealed to the Civil Aeronautics Board, whose
decisions shall be final within fifteen days from the dateof notification of such denial,
cancellation, or revocation.

(24) To administer, operate, manage, control, maintain and develop the Manila
International Airport and all government-owned aerodromes except those controlled or
operated by the Armed Forces of the Philippines, including such powers and duties as:
(a) to plan, design, construct, equip, expand, improve, repair or alter aerodromes or such
structures, improvements, or air navigation facilities; (b) to enter into, make and execute
contracts of any kind with any person, firm, or public or private corporation or entity; (c) to
acquire, hold, purchase, or lease any personal or real property, right of ways, and
easements which may be proper or necessary: Provided, That no real property thus
acquired and any other real property of the Civil Aeronautics Administration shall be sold
without the approval of the President of the Philippines; (d) to grant to any person, such
concession or concession rights on space or property within or upon the aerodrome for
purposes essential or appropriate to the operation of the aerodrome upon such terms
and conditionsas the Administrator may deem proper: Provided, however, That the
exclusive use of any landing strip or runway within the aerodrome shall not be granted to
any person; (e) to determine the types of aircraft that may be allowed to use any of the
aerodromes under its management and control in the interest of public safety; (f) to
prescribe, adopt, establish and enforce such rules and regulations consistent with
existing laws, rules and regulations, as may be necessary for the safety, health and
welfare of the public within the aerodrome.

(25) To determine, fix, impose, collect and receive landing fees, parking space fees,
royalties on sales or deliveries, direct or indirect, to any aircraft for its use of aviation
gasoline, oil and lubricants, spare parts, accessories, and supplies, tools, other royalties,
fees or rentals for the use of any of the property under its management and control.

As used in this sub-section:

 (1) "Landing fees" refer to all charges for the use of any landing strip or runway by any
aircraft landing or taking off at an aerodrome.

(2) "Terminal fees" refer to charges for parking at or near the ramp, terminal area, or
building, for the purposes of loading or unloading passengers and/or cargo.

(3) "Royalties" refer to all charges based on gross business or sales, or gross or net
profit.

(4) "Supplies" include any and all items of whatever nature or description which may be
necessary for, or incidental to, the operation of an aircraft.

(26) To grant permit to civil aircraft or persons to carry instrument or photographic device
to be used for aerial photography or taking of pictures by photograph or sketching of any
part of the Philippines.

On the other hand, the CAAP is anindependent regulatory body with quasi-judicial and quasi-
legislative powers and possessing corporate attributes,81 having an authorized capitalstock of fifty
billion pesos (₱50,000,000,000.00) which shall be fully subscribed by the Republic of the
Philippines.82 It is attached to the DOTC only for the purpose of policy coordination.83 While the
Director General is responsible for the exercise of all powers and the discharge of all duties
including the control over all personnel and activities of the CAAP,84 the latter’s corporate powers
are vested in its Board of Directors.85 It enjoys fiscal autonomy to fund its operations.86 With quasi-
judicial powers, the Director General has the power and authority to inspect aviation equipment
and also from time to time, for any reason, re-inspect or reexamine the same.87 If, as a result of
any such re-inspection or reexamination, or if, as a result of any other investigation made by the
Director General,he determines that safety in civil aviation or commercial air transport and the
public interest requires, the Director General may issue an order amending, modifying,
suspending or revoking, in whole or in part, any airworthiness certificate, airman certificate, air
operator certificate or certificate for any airport, school, or approved maintenance
organization.88 Possessing quasi-legislative powers, CAAP’s Board may authorize the Director
General to issue or amend rules of procedures and practice as may be required, or issue and
adopt rules and regulations and other issuances of the ICAO.89 Vested with corporate attributes,
said Board, through a resolution, may empower the Director General to enter into, make and
execute contracts of any kind with any person, firm, or public or private corporation.90

Moreover, notable under R.A. No. 9497 is the establishment of permanent offices like the (a) Air
Traffic Service; (b) Air Navigation Service; (c) Aerodrome Development and Management
Service; (d) Administrative and Finance Service;91 (e) the Office of Enforcement and Legal
Service;92 and (f) the Flight Standards Inspectorate Service.93The law also mandated the Director
General to organize the Aircraft Accident Investigation and Inquiry Board.94

Furthermore, R.A. No. 9497 manifested the adherence ofthe country to, and the adoption of, the
Chicago Convention and ICAO standards95 and other international conventions96 with respect to
matters relating to civil aviation.

After comparing the features and functions of the ATO and the CAAP, we find that CAAP indeed
assumed the functions of the ATO. However, the overlap in their functions does not mean there
was no valid abolition of the ATO.97 The CAAP has new and expanded features and functions
which are intended to meetthe growing needs of a globally competitive civil aviation industry,
adherent to internationally recognized standards. Thus, in National Land Titles and Deeds
Registration Administration v. Civil Service Commission,98 we held that:

if the newly created office has substantially new, different or additional functions, duties or
powers, so that itmay be said in fact to create an office different from the one abolished, even
though it embraces all or some of the duties of the old office it will be considered as an abolition
of one office and the creation of a new or different one. The same is true if one office is abolished
and its duties,for reasons of economy are given to an existing officer or office.

To be precise, the case before us deals only with the issue of abolition and not removal. Besides,
petitioner has failed to provide in detail any ATO personnel who had been removed from office
on account of R.A. No. 9497.

Apropos then is our ruling in Kapisanan ng mga Kawani ng Energy Regulatory Board v.
Barin,99 to wit:

However, abolition of an office and itsrelated positions is different from removal of an incumbent
from his office. Abolition and removal are mutually exclusive concepts. From a legal standpoint,
there is no occupant in an abolished office. Where there is no occupant, there is no tenure to
speak of. Thus, impairment of the constitutional guarantee of security of tenure doesnot arise in
the abolition of an office.On the other hand, removal implies that the office and its related
positions subsist and that the occupants are merely separated from their positions.

Based on the premise that there was a valid abolition of ATO, in the absence of any bad faith, we
rule thatthe ATO employees’ right to security of tenure was not violated.

The Court cannot agree to petitioner’s supposition that there should be automatic absorption of
all ATO employees to the CAAP. Indeed, there is no such thing as a vested interest in a public
office, let alone an absolute right to hold it. Except constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office
or its salary.100 Public office is not property but a "public trust or agency." While their right to due
process may be relied upon by public officials to protect their security of tenure which, in a limited
sense, is analogous to property,101 such fundamental right to security of tenure cannot be invoked
against a valid abolition of office effected by the legislature itself.

However, it bears stressing that former ATO employees are not left without succor. Aside from
the retirement packages provided for by R.A. No. 9497, the same law mandates that former
qualified ATO employees should be accorded preference in filling up CAAP plantilla positions.
Section 12 of R.A. No. 9497 provides:

SEC. 12. Personnel. – Qualified existing personnel of the Air Transportation Office (ATO) shall
be given preference in the filling up of plantilla positions created inthe Authority, subject to
existing civil service rules and regulations.

This preference is resonated in Section 59(b), Rule IX of the IRR, which provides:

SECTION 59. Abolition of the Air Transportation Office.

xxxx

b. Qualified Air Transportation Office (ATO) personnel shall be given preference in the filling-up
of CAAP plantilla positions subject to existing civil service rules and regulations.

Inasmuch as we accorded respect to the mandate of the law in abolishing the ATO, such
preference in favor of qualified ATO employees, subject to existing civil service rules and
regulations, should likewise be strictly heeded in favor of the said employees. All respondents
must abide by this directive. No less than R.A. No. 9497 requires it.

Finally, we resolve the third issue in the negative.

A petition for prohibition will prosper only if grave abuse of discretion is manifested. Mere abuse
1avvphi1

ofdiscretion is not enough; it must be grave. The term grave abuse of discretion is defined as a
capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion
of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is
exercised in an arbitrary and despotic manner because of passion or hostility.102

We hold that there is no grave abuse of discretion when Section 60 of the IRR provided for a
"hold-over" status on the part of ATO employees.

A careful perusal of Section 86 of R.A. No. 9497 reveals that the transfer of ATO personnel,
unless they opted to retire from the service, to the CAAP implies the application of the hold-over
principle. There being no express, much less implied prohibition of the application of the hold-
over principle in R.A. No. 9497 per se, such proviso in the latter’s IRR does not amount to grave
abuse of discretion.

In Lecaroz v. Sandiganbayan,103 we held:

Absent an express or implied constitutional or statutory provision to the contrary, an officer is

entitled to stay in office until his successor is appointed or chosen and has qualified.The
legislative intent of not allowing holdover must be clearly expressed or at least implied in the
legislative enactment, otherwise it is reasonable to assume that the law-making body favors the
same.

The reason for the application of the hold-over principle is clearly stated also in Lecaroz,104 to wit:

Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in an
executive or administrative office becoming, for any period of time, wholly vacant or unoccupied
by one lawfully authorized to exercise its functions. This is founded on obvious considerations
ofpublic policy, for the principle of holdover is specifically intended to prevent public convenience
from suffering because of a vacancy and to avoid a hiatus in the performance of government
functions.

Indeed, the application of the hold-over principle preserves continuity in the transaction of official
business and prevents a hiatus in government. Thus, cases of extreme necessity justify the
application of the hold-over principle.105

Petitioner itself states and this Court, without doubt, agrees that the CAAP is an agency highly
imbued with public interest. It is of rational inference that a hiatus therein would be disastrous
1âwphi1

not only to the economy, tourism and trade of the country but more so on the safety and security
of aircraft passengers, may they be Filipino citizens or foreign nationals.

A final note.

On April 9, 2014, based on a March 2014 FAA review of the CAAP, the FAA opined that the
Republic ofthe Philippines complies with the international safety standards set by the ICAO and
has been granted a Category 1 rating.106 The European Union also lifted the ban on Philippine
carriers.107 Thus, it cannot be ignored that the creation of the CAAP through R.A. No. 9497, in one
way or another, helped in upgrading the country’s status in the arena of civil aviation. Absent any
violation of the Constitution and the other pertinent laws, rules and regulations, this Court would
not hinder in the continuous growth and improvement of the civil aviation industry of the country.

WHEREFORE, the present petition for prohibition with prayer for injunctive reliefs is DISMISSED.

No pronouncement as to costs. SO ORDERED.

 [G.R. Nos. L-10360 & L-10433. January 17, 1957.]

JULIANO A. ALBA, in his capacity as Acting Vice Mayor of Roxas

City, Petitioner, v. HONORABLE JOSE D. EVANGELISTA, Judge of the Court of
First Instance of Capiz and VIVENCIO C. ALAJAR, Respondents.

VIVENCIO C. ALAJAR, Petitioner-Appellee, v. JULIANO A.

ALBA, Respondent-Appellant.

Nicolas V. Villaruz, Solicitor General Ambrosio Padilla and Solicitor Troadio

Quiazon, Jr. for Juliano A. Alba.

Alvarez, Cacnio, Pamatian & Associates, Abeleda & Amores, Antonio J.

Beldia, Pedro M. Bermejo, Jose M. F. Belo, Atila R. Balgos and Alfonso V.
Legaspi for Vivencio C. Alajar.

SYLLABUS

1. PUBLIC OFFICERS; TENURE OF OFFICE MADE DEFENDANT UPON PLEASURE OF

PRESIDENT; CESSATION IN OFFICE MAY BE WITH OR WITHOUT CLAUSE. — Where,
as in the case at bar, the tenure of office of the vice-mayor has been made by law
expressly defendant upon the pleasure of the President of the Philippines, the person
thus appointed to such office by the Chief Executive has to leave it when the
President in the exercise of his power legally appoints another person in his stead.
Whereas the power of the President to remove at pleasure city officials under
Section 2544 of the Revised Administrative Code should be preceded by legal cause
(De los Santos v. Mallari, 48 Off. Gaz., 1791).

DECISION

FELIX, J.:

On January 1, 1954, the President of the Philippines appointed Vivencio Alajar as

Vice-Mayor of the City of Roxas (Annex D). He took his oath and assumed office on
January 6, 1954; on March 31 of that year, his appointment was confirmed by the
Commission on Appointment (Annex D-1) and he continued holding office until
November, 1955, when he received a communication from Assistant Executive
Secretary Enrique C. Quema informing him that the President had designated
Juliano Alba in his stead as Acting Vice-Mayor of the City of Roxas and requesting
him to turn over his said office to Mr. Alba effective immediately. This
communication wherein the President directed the writer thereof to convey to Mr.
Alajar his appreciation for the invaluable services he had rendered as Vice-Mayor of
the City of Roxas (Annex C), was confirmed by a telegram that Alajar received from
the President dated November 23, 1955 (Annex B).

On the other hand, Executive Secretary Fred Ruiz Castro addressed Juliano A. Alba a
communication through the Mayor of the City of Roxas wherein Alba was informed
that the President has designated him as Acting Vice-Mayor of the City of Roxas vice
Vivencio Alajar, and instructed him to qualify and enter upon the performance of the
office, furnishing the Commissioner of Civil Service with the copy of his oath (Annex
A). On November 19, 1955, Juliano A. Alba took his oath and assumed office (Annex
A-1).

Not satisfied with the action of the President, Vivencio C. Alajar instituted quo
warranto proceedings in the Court of First Instance of Capiz against Juliano A. Alba
(Civil Case No. V-2041), contending: chanrob1es virtual 1aw library

(a) That he was appointed Vice-Mayor of Roxas City on 1 January 1954 and his
appointment was confirmed by the Commission on Appointments on 31 March 1954
and that on 19 November 1955, Juliano A. Alba usurped the office of Vice-Mayor of
Roxas City;

(b) That there existed no vacancy of said office at the time of the designation by the
President of the Philippines of Juliano A. Alba as Acting Vice-Mayor of Roxas City;
and

(c) That there existed no legal cause or reason whatsoever for the removal or
disqualification of said Vivencio C. Alajar by the appointment of Juliano Alba by the
President of the Philippines as Acting Vice Mayor of Roxas City.

After proper proceedings and hearing, the parties submitted the case for decision on
the only issue of whether the alleged removal of the petitioner and the designation
in his place of respondent as Vice-Mayor of Roxas City was legal or illegal. On this
point, the lower court held that the petitioner (Vivencio C. Alajar) was "entitled to
remain in office as Vice-Mayor of the City of Roxas with all the emoluments, rights
and privileges appurtenant thereto until he resigns, dies or is removed for cause.
Without costs." (Decision, Annex C).

From this decision, Juliano A. Alba appealed to Us by filing a notice of appeal dated
February 3, 1956. Four days later, the appeal notwithstanding, Vivencio Alajar filed
a petition (Annex D) praying for immediate execution of the judgment, and despite
the strong opposition of appellant, the motion was granted by the Court on February
18, 1956 (Annex E), based on the special reasons adduced by the petitioner and

"Moreover, to uphold the supremacy of the law and constitution, which is the
supreme and fundamental authority, pertinent provisions of which are involved in
this case, and considering that the immediate and positive effect of the motion, if
the same is denied, is to prolong the status of illegality of the appointment of the
second appointee and present incumbent to the position of Vice-Mayor of the City of
Roxas and the question of who is entitled to occupy the same and to exercise the
public function of the office which affects public interest and public service, this
Court, if it is to be consistent with its pronouncement, conclusion or judgment, as it
should be, is constrained to grant said motion." cralaw virtua1aw library

The decision, however, was not executed because the herein petitioner, Juliano A.
Alba, brought the matter up to this Superiority praying: chanrob1es virtual 1aw library

(1) That pending the determination of the validity of the order of immediate
execution, a writ of preliminary injunction be issued, upon previous filing of the bond
fixed by this Honorable Court by the herein petitioner, restraining the herein
respondent Vivencio C. Alajar from discharging the duties and functions of the Vice-
Mayor of Roxas City in order that the herein petitioner shall continue unmolested as
acting Vice-Mayor of Roxas City until the final determination of the question of the
validity of the order for the immediate execution of the decision of the trial court;

(2) That after hearing, judgment be rendered declaring null and void the order of
respondent, Hon. José D. Evangelista, dated 18 February 1956 for the immediate
execution of his decision in the Quo Warranto Case (Alajar v. Alba) on the ground
that the same was improperly issued as there existed no good reason for its
issuance as contemplated and provided by Section 2 of Rule 39 of the Rules of
Court.

(3) For such other relief as may be just and equitable in the premises.

In this instance, the Solicitor General requested permission to intervene in

the certiorari case (G. R. No. L-10360), alleging that the order of immediate
execution issued by the trial judge deprived him of the opportunity to be heard and
defend the constitutionality of Republic Act No. 603 in the lower court and he desires
to be heard by this Court before We proceed to determine the constitutionality of
section 8 of Republic Act No. 603 by the affirmative vote of 8 Justices thereof
(section 23, Rule 3 of the Rules of Court — I Moran, Comments on the Rules of
Court, 1953 ed., p. 111). The stand of the Solicitor General is that said section 8 is
constitutional (Article VI, section 1 and Article XII, section 1 of the Constitution of
the Philippines; Jover v. Borra, 49 Off. Gaz., 2765 and enactments of Congress
subsequent to the case of Santos v. Mallare, 48 Off. Gaz., 1793, etc., declaring
certain position to be terminable at the pleasure of the appointing authority —
section 2545 Revised Administrative Code; Commonwealth Act Nos. 39, 51, 520,
547 and 592; Republic Acts Nos. 162, 170, as amended; 179, as amended; 183,
288, as amended; 305, 306, 327, 328, 521, 523, 525, as amended; 537, and 603).
The motion for intervention of the Solicitor General was granted by this Court.

In the meanwhile, the appeal of Juliano A. Alba in said case V- 2041, was given due
course and reached this Court. In this instance the parties have already filed their
respective briefs and the case was submitted for decision at the hearing held on
August 3, 1956.

Appellant’s counsel maintains that the trial Court erred: chanrob1es virtual 1aw library

1. In predicating its decision on the mistaken assumption that the petitioner-

appellee belongs to the unclassified civil service, an assumption which begs the very
issue; whether the vice-mayor of Roxas City belongs to the unclassified service as
claimed by the petitioner-appellee;

2. In not declaring without the necessity of making a pronouncement of its validity,

that section 8 of Republic Act 603 was precisely intended by the Congress to exclude
the office of vice-mayor of Roxas City from persons belonging to the unclassified
service under section 671 of the Revised Administrative Code, as amended;

3. In not declaring that in the case of Jover v. Borra (49 Off. Gaz., 2767) the
Supreme Court passed upon the validity of section 8 of Republic Act No. 603;

4. In holding that the office of vice-mayor of Roxas City is neither primarily

confidential nor policy-determining, and

5. In not holding that section 8 of Republic Act No. 603 is a valid exercise of the
broad legislative powers vested in the Congress of the Philippines by our
Constitution.
As the petition for certiorari was admitted and given due course by this Court and
the writ of preliminary injunction prayed for was issued, We shall confine ourselves
to the statement that appeal from a decision of the Court of First Instance in quo
warranto proceedings is perfected by the mere presentation of the notice of appeal
(sections 16 and 17, Rule 41 of the Rules of Court), and from that moment "the trial
court losses its jurisdiction over the case, except to issue orders for the protection
and preservation of the rights of the parties which do not involve any matter
litigated by the appeal, and to approve compromises offered by the parties prior to
the transmittal of the record on appeal (which is not required in cases of quo
warranto) to the appellate court" (section 9, Rule 41 of the Rules of Court). Hence,
in the case at bar, the trial court had no jurisdiction to provide for the issuance of
the writ for the advance execution of its judgment, as it did by order of February 18,
1956 (Annex E). Consequently, We have to declare that said order is null and void
and of no force and effect and to make permanent the writ of preliminary injunction
We have issued at the instance of the herein petitioner.

We will now consider the merits of respondent’s appeal in Case G. R. No. L-10433.
The solution of the controversy hinges on the main question at issue, which may be
propounded as follows: jgc:chanrobles.com.ph

"Section 8 of Republic Act No. 603 creating the city of Roxas provides that the Vice-
Mayor shall be appointed by the President of the Philippines with the consent of the
Commission on Appointments and shall hold office at the pleasure of the President.
In view of this provision of the law, could the President of the Philippines legally
replace respondent Vivencio C. Alajar, with or without cause, by petitioner Juliano A.
Alba?"

Vivencio C. Alajar and judge Josè D. Evangelista maintain of course the negative
side alleging that in the case of De los Santos v. Mallare, 48 Off. Gaz., 1791, a
similar provision of the Administrative Code which prescribes: jgc:chanrobles.com.ph

"SEC. 2545. Appointment of City Officials. — The President of the Philippines shall
appoint, with the consent of the Commission on Appointments of the Congress of
the Philippines, the mayor, the vice-mayor . . . and he may REMOVE at pleasure any
of the said officers . . .",

has been declared incompatible with the constitutional inhibition that "no officer or
employee in the Civil Service shall be removed or suspended except for cause as
provided by law", because the two provisions are mutually repugnant and absolutely
irreconciliable. In express terms, one permits what the other in similar manner
prohibits. And the Supreme Court then said "that the particular provisions of law
(section 2545 of the Revised Administrative Code) which gives the Chief Executive
power to remove an officer at pleasure (though not unconstitutional) have been
repealed by the Constitution and ceased to be operative from the time the latter
went into effect."
cralaw virtua1aw library

On the other hand, the Solicitor General in his reply memorandum considers the
matter from a different angle. The views expressed by him therein refer to the
tenure of office of public officials. We quote from said memorandum the following: jgc:chanrobles.com.ph

"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 junction
of government, to be exercised by him for the benefit of the public. The individual so
invested is a public officer" (7 Mechem, Public Officers, section 1).

"The question is whether an officer appointed for a definite time or during good
behavior, had any vested interest or contract right in his office, of which Congress
could not deprive him. The question is not novel. There seems to be but little
difficulty in deciding that there was no such interest or right (Grenshaw v. United
States, 134, U. S. 99, 104).

x x x

"Admittedly, the act of Congress in creating a public office, defining its powers,
functions and fixing the "term" or the period during which the officer may claim to
hold the office as of right and the "tenure" or the term during which the incumbent
actually holds the office, is a valid and constitutional exercise of legislative power
(Article VI, section 1, Constitution of the Philippines; Jover v. Borra, G. R. No. L-
6782, July 25, 1953; Nueno v. Angeles, 76 Phil., 12; Francia v. Pecson and Subido,
47 Off. Gaz., 12 Supp. p. 296). In the exercise of that power, Congress enacted
Republic Act No. 603 on April 11, 1951, creating the City of Roxas and providing,
among others for the position of Vice-Mayor and its tenure or period during which
the incumbent Vice-Mayor holds office at the pleasure of the President (section 8,
article II, Republic Act No. 603).

"In Jover v. Borra, supra, this Court through Mr. Justice Padilla, held that: chanrob1es virtual 1aw library

‘The legislative intent to provide for a fixed period of office tenure for the Mayor of
the City of Iloilo and not to make him removable at the pleasure of the appointing
authority may be inferred from the fact that whereas the appointment of the Vice-
Mayor of the same city, as provided for in an amendatory act (Republic Act No.
365), and those of the Mayors and Vice-Mayors of other cities (section 2545, Rev.
Adm. Code; Commonwealth Acts Nos. 39, 51, 338, 520, 547 and 592; Republic Acts
Nos. 162, 170, as amended, 179, as amended; 183, 288, as amended; 305, 306,
327, 328, 521, 523, 525, as amended; 537 and 603) are at pleasure, that of the
Mayor of the City of Iloilo is for a fixed period of time, as provided for in the original
charter (Commonwealth Act No. 57), and in this continued unchanged despite
subsequent amendatory acts (Commonwealth Act No. 158; Republic Act Nos. 276
and 365).’.

"So, the logical inference from the above quoted excerpt of the decision of this Court
promulgated long after the decision rendered in the case of De los Santos v. Mallare,
supra, is that Congress can legally and constitutionally make the tenure of certain
officials dependent upon the pleasure of the President.

x x x

"The pervading error of the respondents lies in the fact that they insist on the act of
the President in designating petitioner Alba in the place of respondent Alajar as one
of removal. The replacement of respondent Alajar is not removal, but an expiration
of its tenure, which is one of the ordinary modes of terminating official relations. On
this score, section 2545 of the Revised Administrative Code which was declared
inoperative in the Santos v. Mallare case, is different from section 8 of Republic Act
No. 603, Section 2545 refers to removal at pleasure while section 8 of Republic Act
No. 603 refers to holding office at the pleasure of the President.

"Clearly, what is involved here is not the question of removal, or whether legal
cause should precede or not that removal. What is involved here is the creation of
an office and the tenure of such office, which has been made expressly dependent
upon the pleasure of the President.

"The cases relied upon by respondents are, therefore, in opposite to the instant
proceedings. For all of them relate to removal of officials in violation of laws which
prescribe fixity of term.

"Even assuming for the moment that the act of replacing Alajar constitutes removal,
the act itself is valid and lawful, for under section 8 of Republic Act No. 603, no fixity
of tenure has been provided for, and the pleasure of the President has been
exercised in accordance with the policy laid down by Congress therein.

"Thus, in Lacson v. Roque (49 Off. Gaz., 93, 101-102), this Court made clear that:
library
chanrob1es virtual 1aw

‘The most liberal view that can be taken of the power of the President to remove the
Mayor of the City of Manila is that it must be for cause. Even those who would
uphold the legality of the Mayor’s suspension do not go so far as to claim power in
the Chief Executive to remove or suspend the Mayor at pleasure. Untramelled
discretionary power to remove does not apply to appointed officers whose term of
office is definite, much less elective officers. As has been pointedly stated: "Fixity of
tenure destroys the power of removal at pleasure otherwise incident to the
appointing power; the reason of this rule is the evident repugnance between the
fixed term and the power of arbitrary removal. . . .

‘An inferential authority to remove at pleasure cannot be declared, since the

existence of a defined term, ipso facto, negatives such an inference, and implies a
contrary presumption, i.e., that the incumbent shall hold office to the end of his
term subject to removal for cause’. (State ex rel. Gallaghar v. Brown, 57 Mo. Ap.,
302, expressly adopted by the Supreme Court in State ex rel. v. Maroney, 191 Mo.,
548; etc.) ‘It is only in those cases in which the office is held at the pleasure of the
appointing power and where the power of removal is exercisable at its mere
discretion, that the officer may be removed without notice or hearing.’"

"Thus, in Jover v. Borra, supra, the same rule was reiterated: chanrob1es virtual 1aw library

‘The legislative intent to provide for a fixed period of office tenure for the Mayor of
the City of Iloilo and not to make him removable at the pleasure of the appointing
authority may be inferred from the fact that whereas the appointment of the Vice-
Mayor of the same city, as provided for in an amendatory act (Republic Act No.
365), end those of the Mayors and Vice-Mayors of other cities (section 2545,
Revised Administrative Code; Commonwealth Acts Nos. 39, 51, 338, 520, 547 and
592; Republic Acts Nos. 162; 170, as amended; 179, as amended; 183, 288, as
amended; 305; 306; 327; 328; 521; 523; 525, as amended; 537; and 603) are at
pleasure, that of the Mayor of the City of Iloilo is for a fixed period of time, as
provided for in the original charter (Commonwealth Act No. 57), and this continued
unchanged despite subsequent amendatory acts (Commonwealth Act No. 158;
Republic Acts Nos. 276 and 365).’

"It is an established rule that when the law authorizes a superior officer to remove a
subordinate at pleasure his discretion in the exercise of the power of removal is
absolute. As long as the removal is effected in accordance with the procedure
prescribed by law, it may not be declared invalid by the courts, no matter how
reprehensible and unjust the motives of the removal might be (State v. Kennelly, 55
Atl. 555).

"For respondent judge to ignore these judicial doctrines brought to his attention by
petitioner Alba even during the quo warranto proceedings and in the face of their
impressive clarity to rashly resolve his doubt against the constitutionality of section
8 of Republic Act No. 603 is to exert his discretion with the greatest measure of
abuse as to amount to lack of jurisdiction (Abad Santos, v. Tarlac, 38 Off. Gaz.,
830).

‘After all the foregoing circumstances are round to be present, it must be shown that
the statute violates the constitution clearly, palpably, plainly, and in such manner as
to leave no doubt or hesitation in the mind of the court (Sharpless v. Mayor, 21 Pa.
147). The court presumes that every statute is valid. This presumption is based
upon the theory of separation of powers which makes the enactment and repeal of
laws exclusively a legislative function. As Chief Justice Marshall said: "It is but a
decent respect due to the wisdom, the integrity, and the patriotism of the legislative
body, by which any law is passed, to presume in favor of its validity, until its
violation of the constitution is proved beyond all reasonable doubt." (Darmouth
College v. Woodward, 4 Wheat, 625.) .

"It should be remembered in this connection that before a legislature passes a bill, it
is presumed that it has decided the measure to be constitutional; and when the
executive approves that bill it is also presumed that he has been convinced of its
validity. Under these conditions, therefore, if a statute is reasonably susceptible of
two interpretations, one making it unconstitutional and other valid, it is the duty of
the court to adopt the second construction in order to save the measure. (U. S. v.
Delaware & Hudson Co., 213 U. S. 366.) Sinco, Philippine Political Law, 10 ed., pp.
525-526; Emphasis supplied.’"

We certainly agree with the foregoing views of the Solicitor General because they
constitute a clear and fair exposition of the law on the matter. Anyway, the provision
of Section 8 of Republic Act No. 603 empowering the President of the Philippines to
appoint, with the consent of the Commission on Appointments, the Vice-Mayor of
Roxas City, the latter to hold office at the pleasure of the President, can not by any
stretch of imagination be considered unconstitutional and void.

Wherefore, on the strength of the foregoing considerations, and upon declaring the
order of the Court of February 18, 1956 (Annex E) null and void and of no effect and
upon making permanent the writ of preliminary injunction issued by this Court in the
present case, We hereby dismiss the quo warranto proceedings, for respondent
Vivencio C. Alajar has no right to continue occupying the office of Vice-Mayor of
Roxas City after the President of the Philippines, in the exercise of his power of
allowing said respondent to hold office at his pleasure, displaced him from said office
and designated petitioner Juliano A. Alba as Acting Vice-Mayor of said City. Costs in
both cases are taxed against Vivencio C. Alajar.

Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Reyes, J. B. L. and

Endencia, JJ., concur.

Separate Opinions
CONCEPCION, J., concurring: chanrob1es virtual 1aw library

The majority opinion quotes, with approval, from the memorandum of the Solicitor
General, who states, among other things,." . . that Congress can legally and
constitutionally make the tenure of certain officials dependent upon the pleasure of
the President" ; that "the replacement of respondent Alajar is not removal but an
expiration of its tenure, which is one of the ordinary modes of terminating official
relations" ; and that "what is involved here is the creation of an office and the
tenure of such office, which has been made expressly dependent upon the pleasure
of the President." (Italics supplied.)

I believe that the word "tenure" in the foregoing expressions should be submitted by
"term", for:jgc:chanrobles.com.ph

". . . the term of an office must be distinguished from the tenure of the incumbent.
The term means the time during which the officer may claim to hold office as of
right, and fixes the interval after which the several incumbents shall succeed one
another. The tenure represents the term during which the incumbent actually holds
the office. The term of office is not affected by the hold-over. The tenure may be
shorter than the term for reasons within or beyond the power of the incumbent."
Topacio Nueno Et. Al. v. Angeles, 76 Phil., 12, 21-22; Emphasis supplied.)

The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the tenure
of some officials dependent upon the pleasure of the President, by clothing the latter
with blanket authority to replace a public officer before the expiration of his term.

In the case at bar, the term of respondent Alajar as Vice-Mayor of the City of Roxas
is not fixed by law. However, the latter, in effect, vests in the President the power to
fix such term. When, in November, 1955, petitioner Alba was designated as Acting
Vice-Mayor of said City, the term of respondent Alajar was, thereby, fixed implicitly
by the President, in the exercise of his aforementioned authority. Thus, the term of
office of Alajar expired and his right to hold office was extinguished, with the same
legal effect as if the term had been fixed by Congress itself. In other words, Alajar
was not removed from office, for "to remove an officer is to oust him from office
before the expiration of his term" (Manalang v. Quitoriano Et. Al., 50 Off. Gaz.,
2515). Alajar merely lost the right to hold the office of Vice-Mayor of the City of
Roxas by expiration of his term as such.

Subject to the foregoing qualifications, I concur in the opinion penned by Mr. Justice
Felix.

Paras, C.J. and Montemayor, J., concur.

G.R. No. 114795 July 17, 1996

LUCITA Q. GARCES, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO
CONCEPCION, respondents.

FRANCISCO, J.:p

Questioned in this petition for review is the decision 1 of the Court of Appeals 2 (CA), as well as its resolution, which affirmed the
decision of the Regional Trial Court 3 (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against a Provincial Election
Supervisor and an incumbent Election Registrar.

The undisputed facts are as follows:

Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on
July 27, 1986. She was to replace respondent Election Registrar Claudio Concepcion who, in
turn, was transferred to Liloy, Zamboanga del Norte. 4 Correspondingly approved by the Civil
Service Commission, 5 both appointments were to take effect upon assumption of office.
Concepcion, however, refused to transfer post as he did not request for it. 6 Garces, on the other
hand, was directed by the Office of Assistant Director for Operations to assume the Gutalac
post. 7 But she was not able to do so because of a Memorandum issued by respondent Provincial
Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as
the same is not vacant. 8

On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her
assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting
Manager, Finance Service Department, with an enclosed check to cover for the expenses on
construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga
del Norte" which Garces interpreted to mean as superseding the deferment order. 9 Meanwhile,
since respondent Concepcion continued occupying the Gutalac office, the COMELEC en
banccancelled his appointment to Liloy. 10

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary
prohibitory and mandatory injunction and damages against Empeynado 11 and Concepcion,
among others. Meantime, the COMELEC en banc through a Resolution dated June 3, 1988,
resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, 12 and
ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. 13 In
view thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging that
the same was rendered moot and academic by the said COMELEC Resolution, and that the
case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The
RTC, thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo
warranto is the proper remedy, 14 and (2) that the "cases" or "matters" referred under the
constitution pertain only to those involving the conduct of elections. On appeal, respondent CA
affirmed the RTC's dismissal of the case. Hence, this petition

The issues raised are purely legal. First, is petitioner's action for mandamus proper? And,
second, is this case cognizable by the RTC or by the Supreme Court?

On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was
deemed vacated at the time of her appointment and qualification. Garces insists that the vacancy
was created by Section 2, Article III of the Provisional Constitution. 15 On the contrary,
Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to
Liloy.

Article III Section 2 of the Provisional Constitution provides:

 All elective and appointive officials and employees under the 1973
Constitution shall continue in the office until otherwise provided by
proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such is made within a period of
one year from February 25, 1986. (Emphasis supplied).

The above organic provision did not require any cause for removal of an appointive
official under the 1973 Constitution. 16 The transition period from the old to the new
Constitution envisioned an "automatic" vacancy; 17 hence the government is not hard put
to prove anything plainly and simply because the Constitution allows it. 18 Mere
appointment and qualification of the successor removes an incumbent from his post.
Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate
dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No.
17. This executive order, which applies in this case as it was passed prior to the issuance
of Concepcion's transfer order, enumerates five grounds for separation or replacement of
elective and appointive officials authorized under Article III, Section 2 of the Provisional
Constitution, to wit:

1. Existence of a case for summary dismissal pursuant to Section 40 of

the Civil Service Law;

2. Existence of the probable cause for violation of the Anti-Graft and

Corrupt Practices Act as determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to

remain in the service or his separation/replacement is in the interest of
the service.

Not one of these grounds was alleged to exist, much less proven by petitioner when
respondent Concepcion was transferred from Gutalac to Liloy. More, Concepcion was
transferred without his consent. A transfer requires a prior appointment. 19 If the transfer
was made without the consent of the official concerned, it is tantamount to removal
without valid cause 20 contrary to the fundamental guarantee on non-removal except for
cause. 21 Concepcion's transfer thus becomes legally infirm and without effect for he was
not validly terminated. His appointment to the Liloy post, in fact, was incomplete because
he did not accept it. Acceptance, it must be emphasized, it is indispensable to complete
an appointment.22 Corollarily, Concepcion's post in Gutalac never became vacant. It is a
basic precept 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. 23 There can be no appointment to a non-vacant position. The incumbent must
first be legally removed, or his appointment validly terminated before one could be validly
installed to succeed him. Further, Garces' appointment was ordered to be deferred by the
COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.

These factors negate Garces' claim for a well-defined, clear, certain legal right to the
Gutalac post. On the contrary, her right to the said office is manifestly doubtful and highly
questionable. As correctly ruled by respondent court, mandamus, which petitioner filed
below, will not lie as this remedy applies only where petitioner's right is founded clearly in
law and not when it is doubtful. 24 It will not issue to give him something to which he is not
clearly and conclusively entitled. 25 Considering that Concepcion continuously occupies
the disputed position and exercises the corresponding functions therefor, the proper
remedy should have been quo warranto and not mandamus. 26 Quo warranto tests the
title to one's office claimed by another and has as its object the ouster of the holder from
its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed
titles. 27

Garces' heavy reliance with the 1964 Tulawie 28 case is misplaced for material and
different factual considerations. Unlike in this case, the disputed office of "Assistant
Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner Tulawie's
appointment was confirmed by the higher authorities making his claim to the disputed
position clear and certain. Tulawie's petition for mandamus, moreover, was against the
Provincial Agriculturist who never claimed title to the contested office. In this case, there
was no vacancy in the Gutalac post and petitioner's appointment to which she could base
her claim was revoked making her claim uncertain.

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado 29 contending that
this is a "case" or "matter" cognizable by the COMELEC under Sec. 7 Art. IX-A of the
1987 Constitution. The COMELEC resolution cancelling the appointment of Garces as
Election Registrar of Gutalac, he argues, should be raised only on certiorari before the
Supreme Court and not before the RTC, else the latter court becomes a reviewer of
an en banc COMELEC resolution contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:

Each commission shall decide by a majority vote of all its members

any case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or memorandum
required by the rules of the commission or by the commission itself. Unless
otherwise provided by this constitution or by law, any decision, order, or ruling of
each commission may be brought to the supreme court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.

This provision is inapplicable as there was no case or matter filed before the COMELEC.
On the contrary, it was the COMELEC's resolution that triggered this controversy. The
"case" or "matter" referred to by the constitution must be something within the jurisdiction
of the COMELEC, i.e., it must pertain to an election dispute. The settled rule is that
"decision, rulings, order" of the COMELEC that may be brought to the Supreme Court
on certiorari under Sec. 7 Art. IX-A are those that relate to the COMELEC's exercise of
its adjudicatory or quasi-judicial powers 30 involving "elective regional, provincial, and city
officials." 31 In this case, what is being assailed is the COMELEC's choice of an appointee
to occupy the Gutalac Post which is an administrative duty done for the operational set-
up of an agency. 32 The controversy involves an appointive, not an elective, official.
Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule
otherwise would surely burden the Court with trivial administrative questions that are best
ventilated before the RTC, a court which the law vests with the power to exercise original
jurisdiction over "all cases not within the exclusive jurisdiction over of any court, tribunal,
person or body exercising judicial orquasi-judicial
functions." 33

WHEREFORE, premises considered, the petition for review is hereby DENIED without
prejudice to the filing of the proper action with the appropriate body.
G.R. No. 110598 December 1, 1994

MONA A. TOMALI petitioner,

vs.
CIVIL SERVICE COMMISSION, OFFICE ON MUSLIM AFFAIRS (OMA) and ROCAINA M.
LUCMA, respondents.

Public Attorney's Office for petitioner.

Tingcap T. Mortaba for private respodent.

VITUG, J.:

In this special civil action for certiorari, petitioner questions her "replacement" by private
respondent in a contested position in the Office on Muslim Affairs.

On 01 July 1990, petitioner Mona A. Tomali was appointed Development Management Officer II
("DMO II") in the Office on Muslim Affairs ("OMA"). The appointment was extended by then OMA
Executive Director Dimasangcay A. Pundato. She assumed the duties and functions of the office
four months later, or on 01 November 1990, at which time, the appointment had not yet been
transmitted to the Civil Service Commission ("CSC") for approval.

Prior to her assumption to the new position, petitioner had worked in different capacities with the
Mindanao State University starting as Records Clerk (01 June 1983 to 31 December 1986), Clerk
Typist (02 January 1987 to 30 June 1989), and, finally, as "Budget Assistant" (01 July 1989 to 31
October 1990).1

On 16 July 1991, the new Director of the OMA, Dr. Ali Basir Lucman, revoking the previous
incomplete appointment of petitioner, appointed private respondent Rocaina M. Lucman to the
position in question (DMO II). Petitioner, on 29 July 1991, sent public respondent OMA a letter
protesting her replacement. On 01 August 1991, the Chief of the Human Resources
Management Division of the OMA communicated to petitioner the disapproval/expiration of her
appointment.2 Forthwith, private respondent took her oath of office and assumed the duties and
functions of DMO II.

On 12 August 1991, petitioner reiterated her protest.3 The Merit Systems Protection Board
("MSPB"), acting thereon, rendered a decision, dated 23 July 1992, dismissing the
protest/complaint for lack of merit. MSPB held:

Glaring is the fact that protestant's appointment to the contested position was not
approved by the Civil Service Commission, hence, incomplete. In this regard,
Section 11, Rule V, of the Omnibus Rules Implementing Book V of Executive
Order No. 292, Administrative Code of 1987 is clear and explicit. Said provision
reads, thus:

Sec. 11. An appointment not submitted to the Commission, within thirty (30) days
from the date of issuance, which shall be the date appearing on the face of the
instrument, shall be ineffective.

As applied to the case of the herein protestant, it appears that the latter has no
basis in law to cling to the contested position. Her prior continuous stay in office
was at most by mere tolerance of the appointing authority. As her appointment is
 incomplete for lack of the requisite approval of the Civil Service Commission or its
proper Regional or Field Office, no right to security of tenure as guaranteed by
law and the Constitution attaches thereto or for incumbent to invoke. . . . .

xxx xxx xxx

That being so, the proper appointing authority, in this case, the OMA Executive
Director may, in the exercise of sound discretion, cancel or revoke the
said incomplete appointment and appoint another person.

The circumstance showing that the non-approval of protestant's appointment was

due to the belated transmittal thereof to this Commission is of no consequence
nor improve her lot as a holder of an incomplete appointment. There is no
showing that the non-submission was motivated by bad faith, spite or malice or at
least attributable to the fault of the
newly-installed OMA Executive Director.4

Her request for reconsideration having been denied on 27 November 1992, petitioner appealed
to the CSC. In its Resolution No. 93-945, dated 12 March 1993, the Commission dismissed the
appeal for lack of merit.5

Hence, the instant recourse to this Court.

We fail to see any merit in the petition.

An appointment to a position in the civil service is required to be submitted to the CSC for
approval in order to determine, in main, whether the proposed appointee is qualified to hold the
position and whether or not the rules pertinent to the process of appointment are followed; thus:

Sec. 9. Powers and Functions of the Commission. — The Commission shall

administer the Civil Service and shall have the following powers and functions:

xxx xxx xxx

(h) Approve all appointments, whether original or promotional, to positions in the

civil service, except those of presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess the appropriate eligibility or required
qualifications. An 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, if this should take
place, without prejudice to the liability of the appointing authority for appointments
issued in violation of existing laws or rules: Provided, finally, That the
Commission shall keep a record of appointments of all officers and employees in
the civil service. All appointments requiring the approval of the Commission as
herein provided, shall be submitted to it by the appointing authority within thirty
days from issuance, otherwise the appointment becomes ineffective thirty days
thereafter.6

The Omnibus Rules Implementing Book V of Executive Order No. 292, also known as the
Administrative Code of 1987, among other things, provides:

Sec. 11. An appointment not submitted to the Commission within thirty (30) days
from the date of issuance which shall be the date appearing to the face of the
appointment, shall be ineffective. . . . .7
Compliance with the legal requirements for an appointment to a civil service position is essential
in order to make it fully effective.8 Without the favorable certification or approval of the
Commission, in cases when such approval is required, no title to the office can yet be deemed to
be permanently vested in favor of the appointee, and the appointment can still be recalled or
withdrawn by the appointing authority. 9 Until an appointment has become a completed act, it
would likewise be precipitate to invoke the rule on security of tenure. 10

Petitioner faults public respondents for their failure to have her appointment properly attended to
and timely acted upon and for, in effect, allowing her in the meanwhile to assume the office in
question. In Favis vs. Rupisan, 11 this Court has said:

The tolerance, acquiescence or mistake of the proper officials, resulting in the

non-observance of the pertinent rules on the matter does not render the legal
requirement, on the necessity of approval of the Commissioner of Civil Service of
appointments, ineffective and unenforceable. The employee, whose appointment
was not approved, may only be considered as a de facto officer.

Petitioner herself would not appear to be all that blameless. She assumed the position four
months after her appointment was issued or months after that appointment had already lapsed or
had become ineffective by operation of law. Petitioner's appointment was issued on 01 July
1990, but it was only on 31 May 1991 that it was submitted to the CSC, a fact which she knew,
should have known or should have at least verified considering the relatively long interval of time
between the date of her appointment and the date of her assumption to office. The CSC, such as
to be expected, disapproved the appointment 12 in consonance with Presidential Decree No. 807.

When private respondent Lucman was thus appointed DMO II on 16 July 1991, petitioner could
not be said to have theretofore earned a valid tenure to the same position. In its resolution of 12
March 1993, the CSC, which dismissed petitioner's appeal, said:

The instant case is about the recall of Tomali's appointment as Development

Management Officer II, Office on Muslim Affairs in favor of Rocaina Lucman prior
to the approval by the Commission. Subsequently, Tomali filed a protest against
the appointment of Rocaina Lucman.

It may be noted that the issue on the said recall of Tomali's appointment had
already been the subject matter in CSC Resolution No.
91-1237, wherein the Commission ruled as follows:

WHEREFORE, foregoing premises considered, this Commission

upholds the power of the appointing authority to recall an
appointment. Accordingly, the separation of Mona Tomali is
declared to be in order. (Emphasis supplied.)

Further, a motion for reconsideration was denied in CSC Resolution No. 91-1463,
dated December 3, 1991.

Considering that Tomali had already been separated from the service upon recall
of her appointment, her protest against the appointment of Rocaina Lucman has
no merit. She has no more personality to file a protest. 13

It was well within the authority and discretion of the new OMA Director, therefore, to appoint
private respondent, and such prerogative could not be questioned even on a showing that
petitioner might have been better qualified for the position.

The rule has always been that an appointment is essentially a discretionary act, performed by an
officer in whom it is vested according to his best judgment, the only condition being that the
appointee should possess all the qualifications required therefor. 14 There is nothing on record to
convince us that the new OMA Director has unjustly favored private respondent nor has
exercised his power of appointment in an arbitrary, whimsical or despotic manner.

In sum, we see no grave abuse of discretion on the part of public respondents in their questioned
dismissal of petitioner's protest.

WHEREFORE, the petition for certiorari is DISMISSED. No special pronouncement on costs.

SO ORDERED.
G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,

vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

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 11, 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 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 11 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 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 it sell 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 authorizing 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 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.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 because it says the Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided therein that the Commission shag have inter alia
the power to:

9(h) Approve all appointments, whether original or promotional 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. (emphasis 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 next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be
filled by transfer of present employees, reinstatement, re-employment, 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 the 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.
G.R. No. 192791 April 24, 2012

DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.

DECISION

VELASCO, JR., J.:

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

The facts of the case are as follows:

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

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

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar

(Villar) as the third member of the COA for a term of seven (7) years starting February 2, 2004
until February 2, 2011.

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

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA

Commissioner to serve the unexpired term of Villar as Commissioner or up to February 2, 2011.

Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed
to President Benigno S. Aquino III, signified his intention to step down from office upon the
appointment of his replacement. True to his word, Villar vacated his position when President
Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This
development has rendered this petition and the main issue tendered therein moot and academic.

case is considered moot and academic when its purpose has become stale,2 or when it ceases to
present a justiciable controversy owing to the onset of supervening events,3 so that a resolution of
the case or a declaration on the issue would be of no practical value or use.4 In such instance,
there is no actual substantial relief which a petitioner would be entitled to, and which will anyway
be negated by the dismissal of the basic petition.5 As a general rule, it is not within Our charge
and function to act upon and decide a moot case. However, in David v. Macapagal-Arroyo,6 We
acknowledged and accepted certain exceptions to the issue of mootness, thus:
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution, second, the exceptional character of the situation and the
paramount public interest is involved, third, when constitutional issue raised requires formulation
of controlling principles to guide the bench, the bar, and the public, and fourth, the case is
capable of repetition yet evading review.

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

Both procedural and substantive issues are raised in this proceeding. The procedural aspect
comes down to the question of whether or not the following requisites for the exercise of judicial
review of an executive act obtain in this petition, viz: (1) there must be an actual case or
justiciable controversy before the court; (2) the question before it must be ripe for adjudication;
(3) the person challenging the act must be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be the very litis mota of the case.9

To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing
as a taxpayer and citizen, lacks the necessary standing to challenge his appointment.10 On the
other hand, the Office of the Solicitor General (OSG), while recognizing the validity of Villar’s
appointment for the period ending February 11, 2011, has expressed the view that petitioner
should have had filed a petition for declaratory relief or quo warranto under Rule 63 or Rule 66,
respectively, of the Rules of Court instead of certiorari under Rule 65.

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

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

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

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;

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

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

This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.

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

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

We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave
abuse of discretion.

This brings Us to the pivotal substantive issue of whether or not Villar’s appointment as COA
Chairman, while sitting in that body and after having served for four (4) years of his seven (7)
year term as COA commissioner, is valid in light of the term limitations imposed under, and the
circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

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

And if valid, for how long can he serve?

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

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

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

x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional

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

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

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

2. An appointment to any vacancy in COA, which arose from an expiration of a term, after
the first chairman and commissioners appointed under the 1987 Constitution have bowed
 out, shall, by express constitutional fiat, be for a term of seven (7) years, save when the
appointment is to fill up a vacancy for the corresponding unserved term of an outgoing
member. In that case, the appointment shall only be for the unexpired portion of the
departing commissioner’s term of office. There can only be an unexpired portion when,
as a direct result of his demise, disability, resignation or impeachment, as the case may
be, a sitting member is unable to complete his term of office.25 To repeat, should the
vacancy arise out of the expiration of the term of the incumbent, then there is technically
no unexpired portion to speak of. The vacancy is for a new and complete seven-year
term and, ergo, the appointment thereto shall in all instances be for a maximum seven (7)
years.

3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the "reappointment" of a
member of COA after his appointment for seven (7) years. Writing for the Court in
Nacionalista Party v. De Vera,26 a case involving the promotion of then COMELEC
Commissioner De Vera to the position of chairman, then Chief Justice Manuel Moran
called attention to the fact that the prohibition against "reappointment" comes as a
continuation of the requirement that the commissioners––referring to members of the
COMELEC under the 1935 Constitution––shall hold office for a term of nine (9) years.
This sentence formulation imports, notes Chief Justice Moran, that reappointment is not
an absolute prohibition.

4. The adverted system of regular rotation or the staggering of appointments and terms in
the membership for all three constitutional commissions, namely the COA, Commission
on Elections (COMELEC) and Civil Service Commission (CSC) found in the 1987
Constitution was patterned after the amended 1935 Constitution for the appointment of
the members of COMELEC27 with this difference: the 1935 version entailed a regular
interval of vacancy every three (3) years, instead of the present two (2) years and there
was no express provision on appointment to any vacancy being limited to the unexpired
portion of the his predecessor’s term. The model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections composed of a Chairman

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

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

Villar’s promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a
different office and requiring another confirmation by the Commission on Appointments.

Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2),
Article IX(D) of the Constitution on the ban against reappointment in relation to the appointment
issued to respondent Villar to the position of COA Chairman.

Without question, the parties have presented two (2) contrasting and conflicting positions.
Petitioner contends that Villar’s appointment is proscribed by the constitutional ban on
reappointment under the aforecited constitutional provision. On the other hand, respondent Villar
initially asserted that his appointment as COA Chairman is valid up to February 2, 2015 pursuant
to the same provision.
The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word
"reappointment" as, in context, embracing any and all species of appointment.

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

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

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

Let us dissect and examine closely the provision in question:

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

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

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

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

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated
circumstances or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched,
allows a promotional appointment from Commissioner to Chairman. Even if We concede the
existence of an ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.33 teaches
that in case of doubt as to the import and react of a constitutional provision, resort should be
made to extraneous aids of construction, such as debates and proceedings of the Constitutional
Convention, to shed light on and ascertain the intent of the framers or the purpose of the
provision being construed.

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

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

And again in Nitafan v. Commissioner on Internal Revenue:

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

Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.

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

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

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

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

MR. MONSOD. It is covered.

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

MS. AQUINO: But we have to be very specific x x x because it might shorten the term because
he serves only the unexpired portion of the term of the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired
portion of the term of the predecessor. (Emphasis added.)36

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

Moreover, jurisprudence tells us that the word "reappointment" means a second appointment to
one and the same office.37 As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent
in Visarra v. Miraflor,38 the constitutional prohibition against the reappointment of a commissioner
refers to his second appointment to the same office after holding it for nine years.39 As Justice
Dizon observed, "[T]he occupant of an office obviously needs no such second appointment
unless, for some valid cause, such as the expiration of his term or resignation, he had ceased to
be the legal occupant thereof." 40 The inevitable implication of Justice Dizon’s cogent observation
is that a promotion from commissioner to chairman, albeit entailing a second appointment,
involves a different office and, hence, not, in the strict legal viewpoint, a reappointment. Stated a
bit differently, "reappointment" refers to a movement to one and the same office. Necessarily, a
movement to a different position within the commission (from Commissioner to Chairman) would
constitute an appointment, or a second appointment, to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo
Bautista, although he expressly alluded to a promotional appointment as not being a prohibited
appointment under Art. X of the 1935 Constitution.

Petitioner’s invocation of Matibag as additional argument to contest the constitutionality of Villar’s

elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo
appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and
Florentino Tuason as Commissioners, each for a term of office of seven (7) years. All three
immediately took their oath of, and assumed, office. These appointments were twice renewed
because the Commission on Appointments failed to act on the first two ad interim appointments.
Via a petition for prohibition, some disgruntled COMELEC officials assail as infirm the
appointments of Benipayo, et al.

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

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

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

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

The second situation is where the appointee, after confirmation, serves part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed whether
as a member or as chair to a vacancy arising from retirement because a reappointment will result
in the appointee serving more than seven years.

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

The fourth situation is where the appointee has previously served a term of less than seven (7)
years, and a vacancy arises from death or resignation. Even if it will not result in his serving more
than seven years, a reappointment of such person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed under the second sentence of Sec. 1(20),
Art. IX-C of the Constitution [referring to the first set of appointees (the 5 and 3 year termers)
whose term of office are less than 7 years but are barred from being reappointed under any
situation]."42 (Words in brackets and emphasis supplied.)

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

There can be no serious objection to the scenarios depicted in the first, second and third
situations, both hewing with the proposition that no one can stay in any of the three independent
commissions for an aggregate period of more than seven (7) years. The fourth situation,
however, does not commend itself for concurrence inasmuch as it is basically predicated on the
postulate that reappointment, as earlier herein defined, of any kind is prohibited under any and
all circumstances. To reiterate, the word "reappointment" means a second appointment to one
and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do
not peremptorily prohibit the promotional appointment of a commissioner to chairman, provided
the new appointee’s tenure in both capacities does not exceed seven (7) years in all. The
statements in Matibag enunciating the ban on reappointment in the aforecited fourth situation,
perforce, must be abandoned, for, indeed, a promotional appointment from the position of
Commissioner to that of Chairman is constitutionally permissible and not barred by Sec. 1(2), Art.
IX (D) of the Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and
preserve the independence of COA and its members,44 citing what the dissenting Justice J.B.L
Reyes wrote in Visarra, that once appointed and confirmed, the commissioners should be free to
act as their conscience demands, without fear of retaliation or hope or reward. Pursued to its
logical conclusion, petitioner’s thesis is that a COA member may no longer act with
independence if he or she can be rewarded with a promotion or appointment, for then he or she
will do the bidding of the appointing authority in the hope of being promoted or reappointed.

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

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

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

The provision that of the first three commissioners appointed "one shall hold office for 9 years,
another for 6 years and the third for 3 years," when taken together with the prescribed term of
office for 9 years without reappointment, evinces a deliberate plan to have a regular rotation or
cycle in the membership of the commission, by having subsequent members appointable only
once every three years.46

To be sure, Villar’s appointment as COA Chairman partakes of a promotional appointment which,

under appropriate setting, would be outside the purview of the constitutional reappointment ban
in Sec 1(2), Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term
appearing in the underlying appointment paper, ought still to be struck down as unconstitutional
for the reason as shall be explained.

Consider:

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

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

Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of
less than seven (7) years is void for violating a clear, but mandatory constitutional prescription.
There can be no denying that the vacancy in the position of COA chairman when Carague
stepped down in February 2, 2008 resulted from the expiration of his 7-year term. Hence, the
appointment to the vacancy thus created ought to have been one for seven (7) years in line with
the verbal legis approach47 of interpreting the Constitution. It is to be understood, however,
following Gaminde, that in case of a belated appointment, the interval between the start of the
term and the actual appointment shall be counted against the 7-year term of the appointee.
Posing, however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule
against one serving the commission for an aggregate term of more than seven (7) years.

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

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

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

In the extreme hypothetical situation that Villar vacates the position of chairman for causes other
than the expiration of the original term of Carague, the President can only appoint the successor
of Villar for the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the
Constitution. Upon the expiration of the original 7-year term of Carague, the President can
appoint a new chairman for a term of seven (7) full years.

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

Justice Mendoza likewise invites attention to an instance in history when a commissioner had
been promoted chairman after the expiration of the term of his predecessor, referring specifically
to the appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P.
Carag after the expiration of the latter’s term in 1959 as COMELEC chairman. Such appointment
to the position of chairman is not constitutionally permissible under the 1987 Constitution
because of the policy and intent of its framers that a COA member who has served his full term
of seven (7) years or even for a shorter period can no longer be extended another appointment
to the position of chairman for a full term of seven (7) years. As revealed in the deliberations of
the Constitutional Commission that crafted the 1987 Constitution, a member of COA who also
served as a commissioner for less than seven (7) years in said position cannot be appointed to
the position of chairman for a full term of seven (7) years since the aggregate will exceed seven
(7) years. Thus, the adverted Garcia appointment in 1959 made under the 1935 Constitution
cannot be used as a precedent to an appointment of such nature under the 1987 Constitution.
The dissent further notes that the upgrading remained uncontested. In this regard, suffice it to
state that the promotion in question was either legal or it was not. If it were not, no amount of
repetitive practices would clear it of invalidating taint.

Lastly, Villar’s appointment as chairman ending February 2, 2011 which Justice Mendoza
considers as valid is likewise unconstitutional, as it will destroy the rationale and policy behind
the rotational system or the staggering of appointments and terms in COA as prescribed in the
Constitution. It disturbs in a way the staggered rotational system of appointment under Sec. 1(2),
Art. IX(D) of the 1987 Constitution. Consider: If Villar’s term as COA chairman up to February 2,
2011 is viewed as valid and constitutional as espoused by my esteemed colleague, then two
vacancies have simultaneously occurred and two (2) COA members going out of office at once,
opening positions for two (2) appointables on that date as Commissioner San Buenaventura’s
term also expired on that day. This is precisely one of the mischiefs the staggering of terms and
the regular intervals appointments seek to address. Note that San Buenaventura was specifically
appointed to succeed Villar as commissioner, meaning she merely occupied the position vacated
by her predecessor whose term as such commissioner expired on February 2, 2011. The result
is what the framers of the Constitution doubtless sought to avoid, a sitting President with a 6-year
term of office, like President Benigno C. Aquino III, appointing all or at least two (2) members of
the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as Chairman
for the term ending February 2, 2015 upon the relinquishment of the post by respondent Villar,
and Heidi Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018 to
replace San Buenaventura. If Justice Mendoza’s version is adopted, then situations like the one
which obtains in the Commission will definitely be replicated in gross breach of the Constitution
and in clear contravention of the intent of its framers. Presidents in the future can easily control
the Commission depriving it of its independence and impartiality.

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

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

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

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

or impeachment) shall only be for the unexpired portion of the term of the predecessor,
but such appointments cannot be less than the unexpired portion as this will likewise
disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).

3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a
full term of seven years and who served the entire period, are barred from reappointment
to any position in the Commission. Corollarily, the first appointees in the Commission
under the Constitution are also covered by the prohibition against reappointment.

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

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

acting capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner

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

SO ORDERED.
 G.R. No. 138200. February 27, 2002

SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND

COMMUNICATIONS (DOTC), Petitioner, v. ROBERTO MABALOT, respondent.

DECISION

BUENA, J.:

At the core of controversy in the instant Petition for Review on Certiorari is the
validity of Memorandum Order No. 96-735, dated 19 February 1996, and
Department Order No. 97-1025, dated 29 January 1997, both issued by the
Secretary of the Department of Transportation and Communications (DOTC).

The facts are uncontested.

On 19 February 1996, then DOTC Secretary Jesus B. Garcia, Jr.,

issued Memorandum Order No. 96-735 addressed to Land Transportation
Franchising Regulatory Board (LTFRB) Chairman Dante Lantin, viz:

In the interest of the service, you are hereby directed to effect the transfer of
regional functions of that office to the DOTCCAR Regional Office, pending the
creation of a regular Regional Franchising and Regulatory Office thereat, pursuant to
Section 7 of Executive Order No. 202.

Organic personnel of DOTC-CAR shall perform the LTFRB functions on a concurrent

capacity subject to the direct supervision and control of LTFRB Central Office.

On 13 March 1996, herein respondent Roberto Mabalot filed a petition for certiorari
and prohibition with prayer for preliminary injunction and/or restraining
order,1 against petitioner and LTFRB Chairman Lantin, before the Regional Trial
Court (RTC) of Quezon City, Branch 81,2 praying among others that Memorandum
Order No. 96-735 be declared illegal and without effect.

On 20 March 1996, the lower court issued a temporary restraining order enjoining
petitioner from implementing Memorandum Order No. 96-735. On 08 April 1996, the
lower court, upon filing of a bond by respondent, issued a writ of preliminary
injunction. On 25 April 1996, then DOTC Secretary Amado Lagdameo, Jr. filed his
answer to the petition.

Thereafter, on 29 January 1997, Secretary Lagdameo issued the

assailed Department Order No. 97-1025, to wit:

Pursuant to Administrative Order No. 36, dated September 23, 1987, and for
purposes of economy and more effective coordination of the DOTC functions in the
Cordillera Administrative Region (CAR), the DOTC-CAR Regional Office, created by
virtue of Executive Order No. 220 dated July 15, 1987, is hereby established as the
Regional Office of the LTFRB and shall exercise the regional functions of the LTFRB in
the CAR subject to the direct supervision and control of LTFRB Central Office.

The budgetary requirement for this purpose shall come from the Department until
such time that its appropriate budget is included in the General Appropriations Act.
After trial, the Office of the Solicitor General (OSG) moved to reopen the hearing in
the lower court for the purpose of enabling petitioner to present Department Order
No. 97-1025. In an Order dated 18 February 1997, the lower court granted the
motion.

On 03 April 1997, respondent filed a Motion for Leave to File Supplemental Petition
assailing the validity of Department Order No. 97-1025. On 14 May 1997, the OSG
presented Department Order No. 97-1025 after which petitioner filed a formal offer
of exhibits.

In an Order dated 09 June 1997, the lower court admitted petitioners documentary
exhibits over the objection of respondent. Likewise, the lower court admitted the
supplemental petition filed by respondent to which petitioner filed an answer
thereto.

On 31 March 1999, the lower court rendered a decision the decretal portion of which
reads:

WHEREFORE, judgment is hereby rendered declaring Memorandum Order Nos. 96-

7333 dated February 19, 1996 and 97-1025 dated January 27, 1997 of the
respondent DOTC Secretary null and void and without any legal effect as being
violative of the provision of the Constitution against encroachment on the powers of
the legislative department and also of the provision enjoining appointive officials
from holding any other office or employment in the Government.

The preliminary injunction issued on May 13, 1996 is hereby made permanent.

No pronouncement as to costs.

It is so ordered.

Hence, the instant petition where this Court is tasked in the main to resolve the
issue of validity of the subject administrative issuances by the DOTC Secretary.

In his Memorandum4, respondent Mabalot principally argues that a transfer of the

powers and functions of the LTFRB Regional Office to a DOTC Regional Office or the
establishment of the latter as an LTFRB Regional Office is unconstitutional for
being an undue exercise of legislative power. To this end, respondent quoted heavily
the lower courts rationale on this matter, to wit:

With the restoration of Congress as the legislative body, the transfer of powers and
functions, specially those quasi-judicial (in) nature, could only be effected through
legislative fiat. Not even the President of the Philippines can do so. And much
less by the DOTC Secretary who is only a mere extension of the
Presidency. Among the powers of the LTFRB are to issue injunctions, whether
prohibitory (or) mandatory, punish for contempt and to issue subpoena and
subpoena duces tecum. These powers devolve by extension on the LTFRB
regional offices in the performance of their functions. They cannot be
transferred to another agency of government without congressional
approval embodied in a duty enacted law. (Emphasis ours)

We do not agree. Accordingly, in the absence of any patent or latent constitutional

or statutory infirmity attending the issuance of the challenged orders, this Court
upholds Memorandum Order No. 96-735 and Department Order No. 97-1025 as
legal and valid administrative issuances by the DOTC Secretary. Contrary to the
opinion of the lower court, the President - through his duly constituted political
agent and alter ego, the DOTC Secretary in the present case - may legally and
validly decree the reorganization of the Department, particularly the establishment
of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative Region,
with the concomitant transfer and performance of public functions and
responsibilities appurtenant to a regional office of the LTFRB.

At this point, it is apropos to reiterate the elementary rule in administrative law and
the law on public officers that a public office may be created through any of the
following modes, to wit, either (1) by the Constitution (fundamental law), (2) by
law (statute duly enacted by Congress), or (3) by authority of law.5 cräläwvirtualibräry

Verily, Congress can delegate the power to create positions. This has been settled by
decisions of the Court upholding the validity of reorganization statutes authorizing
the President to create, abolish or merge offices in the executive department.6 Thus,
at various times, Congress has vested power in the President to reorganize
executive agencies and redistribute functions, and particular transfers under such
statutes have been held to be within the authority of the President.7 cräläwvirtualibräry

In the instant case, the creation and establishment of LTFRB-CAR Regional Office
was made pursuant to the third mode - by authority of law, which could be
decreed for instance, through an Executive Order (E.O.) issued by the President or
an order of an administrative agency such as the Civil Service Commission8 pursuant
to Section 17, Book V of E.O. 292, otherwise known as The Administrative Code of
1987. In the case before us, the DOTC Secretary issued the assailed Memorandum
and Department Orders pursuant to Administrative Order No. 36 of the
President,9dated 23 September 1987, Section 1 of which explicitly provides:

Section 1. Establishment of Regional Offices in the CAR- The various

departments and other agencies of the National Government that are currently
authorized to maintain regional offices are hereby directed to establish forthwith
their respective regional offices In the Cordillera Administrative Region with
territorial coverage as defined under Section 2 of Executive Order No. 220 dated July
15, 1987, with regional headquarters at Baguio City.

Emphatically the President, through Administrative Order No. 36, did not merely
authorize but directed, in no uncertain terms, the various departments and
agencies of government to immediately undertake the creation and establishment of
their regional offices in the CAR. To us, Administrative Order No. 36 is a clear and
unequivocal directive and mandate - no less than from the Chief Executive -
ordering the heads of government departments and bureaus to effect the
establishment of their respective regional offices in the CAR.

By the Chief Executives unequivocal act of issuing Administrative Order No. 36

ordering his alter ego - the DOTC Secretary in the present case - to effectuate the
creation of Regional Offices in the CAR, the President, in effect, deemed it fit and
proper under the circumstances to act and exercise his authority, albeit through the
various Department Secretaries, so as to put into place the organizational structure
and set-up in the CAR and so as not to compromise in any significant way the
performance of public functions and delivery of basic government services in the
Cordillera Administrative Region.
Simply stated, it is as if the President himself carried out the creation and
establishment of LTFRB-CAR Regional Office, when in fact, the DOTC
Secretary, as alter ego of the President, directly and merely sought to implement
the Chief Executives Administrative Order.

To this end, Section 17, Article VII of the Constitution mandates:

The President shall have control of all executive departments, bureaus and offices.
He shall ensure that the laws be faithfully executed.

By definition, control is 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
substitute the judgment of the former for that of the latter.10 It includes the
authority to order the doing of an act by a subordinate or to undo such act or
to assume a power directly vested in him by law.11 cräläwvirtualibräry

From the purely legal standpoint, the members of the Cabinet are subject at all
times to the disposition of the President since they are merely his alter ego.12 As this
Court enunciated in Villena vs. Secretary of the Interior,13 without minimizing the
importance of the heads of various departments, their personality is in reality but
the projection of that of the President. Thus, their acts, performed and promulgated
in the regular course of business, are, unless disapproved or reprobated by the Chief
Executive, presumptively the acts of the Chief Executive.

Applying the foregoing, it is then clear that the lower courts pronouncement - that
the transfer of powers and functions and in effect, the creation and establishment of
LTFRB-CAR Regional Office, may not be validly made by the Chief Executive, much
less by his mere alter ago and could only be properly effected through a law enacted
by Congress -is to say the least, erroneous.

In Larin vs. Executive Secretary,14 this Court through the ponencia of Mr. Justice
Justo Torres, inked an extensive disquisition on the continuing authority of the
President to reorganize the National Government, which power includes the creation,
alteration or abolition of public offices. Thus in Larin, we held that Section 62 of
Republic Act 7645 (General Appropriations Act [G.A.A.] for FY 1993) evidently
shows that the President is authorized to effect organizational changes
including the creation of offices in the department or agency concerned:

Section 62. Unauthorized organizational changes.- Unless otherwise created by

law or directed by the President of the Philippines, no organizational unit or changes
in key positions in any department or agency shall be authorized in their respective
organization structures and be funded from appropriations by this act.

Petitioners contention in Larin that Sections 48 and 62 of R.A. 7645 were riders,
deserved scant consideration from the Court, Well settled is the rule that every law
has in its favor the presumption of constitutionality. Unless and until a specific
provision of the law is declared invalid and unconstitutional, the same is valid and
binding for all intents and purposes.15cräläwvirtualibräry

Worthy to note is that R.A. 8174 (G.A.A for FY 1996) contains similar provisions as
embodied in Section 72 (General Provisions) of said law entitled Organizational
Changes and Section 73 (General Provisions) thereof entitled Implementation of
Reorganization. Likewise, R.A. 8250(G.A.A. for FY 1997) has Section 76 (General
Provisions) entitled Organizational Changes and Section 77 (General Provisions)
entitled Implementation of Reorganization.

In the same vein, Section 20, Book III of E.O. No. 292, otherwise known as the
Administrative Code of 1987, provides a strong legal basis for the Chief Executives
authority to reorganize the National Government, viz:

Section 20. Residual Powers. - Unless Congress provides otherwise,

the President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not specifically
enumerated above or which are not delegated by the President in accordance with
law. (Emphasis ours)

This Court, in Larin, had occasion to rule that:

This provision speaks of such other powers vested in the President under the
law. What law then gives him the power to reorganize? It is Presidential
Decree No. 1772 which amended Presidential Decree No. 1416. These
decrees expressly grant the President of the Philippines the continuing
authority to reorganize the national government, which includes the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities and to standardize salaries and
materials. The validity of these two decrees are unquestionable. The 1987
Constitution clearly provides that all laws, decrees, executive orders, proclamations,
letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or revoked.16 So far,
there is yet no law amending or repealing said decrees.

The pertinent provisions of Presidential Decree No. 1416, as amended by

Presidential Decree No. 1772, reads:

1. The President of the Philippines shall have continuing authority to

reorganize the National Government. In exercising this authority, the President
shall be guided by generally acceptable principles of good government and
responsive national development, including but not limited to the following
guidelines for a more efficient, effective, economical and development-oriented
governmental framework:

xxx

b) Abolish departments, offices, agencies or functions which may not be necessary,

or create those which are necessary, for the efficient conduct of
government functions, services and activities;

c) Transfer functions, appropriations, equipment, properties, records and

personnel from one department, bureau, office, agency or instrumentality to
another;

d) Create, classify, combine, split, and abolish positions;

e) Standardize salaries, materials, and equipment;

f) Create, abolish, group, consolidate, merge or integrate entities, agencies,
instrumentalities, and units of the National Government, as well as expand,
amend, change, or otherwise modify their powers, functions, and
authorities, including, with respect to government-owned or controlled
corporations, their corporate life, capitalization, and other relevant aspects
of their charters. (As added by P.D. 1772)

g) Take such other related actions as may be necessary to carry out the purposes
and objectives of this decree. (As added by P.D. 1772) (Emphasis supplied.)

In fine, the designation17 and subsequent establishment18 of DOTC-CAR as the

Regional Office of LTFRB in the Cordillera Administrative Region and the concomitant
exercise and performance of functions by the former as the LTFRB-CAR Regional
Office, fall within the scope of the continuing authority of the President to effectively
reorganize the Department of Transportation and Communications.

Beyond this, it must be emphasized that the reorganization in the instant case was
decreed in the interest of the service19 and for purposes of economy and more
effective coordination of the DOTC functions in the Cordillera Administrative
Region.20 In this jurisdiction, reorganization is regarded as valid provided it is
pursued in good faith. As a general rule, a reorganization is carried out in good faith
if it is for the purpose of economy or to make bureaucracy more efficient.21 To our
mind, the reorganization pursued in the case at bar bears the earmark of good faith.
As petitioner points out,22 tapping the DOTC-CAR pending the eventual creation of
the LTFRB Regional Office is economical in terms of manpower and resource
requirements, thus, reducing expenses from the limited resources of the
government.

Furthermore, under Section 18, Chapter 5, Title XV, Book IV of E.O. 29223 and
Section 4 of E.O. 202,24 the Secretary of Transportation and Communications,
through his duly designated Undersecretary, shall exercise administrative
supervision and control25over the Land Transportation Franchising and Regulatory
Board (Board).

Worthy of mention too is that by express provision of Department Order No. 97-
1025, the LTFRB-CAR Regional Office is subject to the direct supervision and control
of LTFRB Central Office. Under the law,26 the decisions, orders or resolutions of the
Regional Franchising and Regulatory Offices shall be appealable to the Board within
thirty (30) days from receipt of the decision; the decision, order or resolution of the
Board shall be appealable to the DOTC Secretary. With this appellate set-up and
mode of appeal clearly established and in place, no conflict or absurd circumstance
would arise in such manner that a decision of the LTFRB-CAR Regional Office is
subject to review by the DOTC-CAR Regional Office.

As to the issue regarding Sections 7 and 8, Article IX-B of the Constitution, we hold
that the assailed Orders of the DOTC Secretary do not violate the aforementioned
constitutional provisions considering that in the case of Memorandum Order No. 96-
735, the organic personnel of the DOTC-CAR were, in effect, merely designated to
perform the additional duties and functions of an LTFRB Regional Office subject to
the direct supervision and control of LTFRB Central Office, pending the creation of a
regular LTFRB Regional Office.

As held in Triste vs. Leyte State College Board of Trustees:27 cräläwvirtualibräry

To designate a public officer to another position may mean to vest him with
additional duties while he performs the functions of his permanent office. Or in some
cases, a public officer may be designated to a position in an acting capacity as when
an undersecretary is designated to discharge the functions of a Secretary pending
the appointment of a permanent Secretary.

Assuming arguendo that the appointive officials and employees of DOTC-CAR shall
be holding more than one office or employment at the same time as a result of the
establishment of such agency as the LTFRB-CAR pursuant to Department Order No.
97-1025, this Court is of the firm view that such fact still does not constitute a
breach or violation of Section 7, Article IX-B of the Constitution. On this matter, it
must be stressed that under the aforementioned constitutional provision, an office or
employment held in the exercise of the primary functions of ones principal office is
an exception to, or not within the contemplation, of the prohibition embodied in
Section 7, Article IX-B.

Equally significant is that no evidence was adduced and presented to clearly

establish that the appointive officials and employees of DOTC-CAR shall receive any
additional, double or indirect compensation, in violation of Section 8, Article IX-B of
the Constitution. In the absence of any clear and convincing evidence to show any
breach or violation of said constitutional prohibitions, this Court finds no cogent
reason to declare the invalidity of the challenged orders.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED.

ACCORDINGLY, the decision dated 31 March 1999 of the Regional Trial Court of
Quezon City-Branch 81 in Special Civil Action Case No. Q-96-26868 is REVERSED
and SET ASIDE.

SO ORDERED.