COURSE OUTLINELAWS ON PUBLIC OFFICERS (LLB 247N)

Part IINTRODUCTORY CONCEPTS

A. Public office and public officers

Article XI, 1987 ConstitutionSection 1. Public office is a public trust . Public officers and employees must, at all times, be accountable to the people , serve them with utmost responsibility, integrity, loyalty, and efficiency ; act with patriotism and justice, and lead modest lives.

Section 2(b), R.A. 3019Section 2. Definition of terms. As used in this Act, that term(b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph.

Article 203, Revised Penal CodeArt. 203. Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent need is not yours.authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

Notes:PURPOSE OF DISCIPLINE

- Dishonesty as ground for dismissal need not be committed in the performance of duty.- If a public officer or employee is dishonest or is guilty of oppression or grave misconduct, he or she

may be dismissed.- Even if said defects of character are not connected with his or her office, they affect his or her right to

continue in office.- The purpose of discipline is not punish, but to improve public service and preserve public confidence in

government. (Remalona v. CSC)

BUT A RESIGNED PUBLIC OFFICER CANNOT BE SUBJECT TO DISCIPLINE BECAUSE IT DOES NOT SERVE ITS PURPOSE

- It is error to interpret CSC MC No. 38 that administrative case may be filed against a resigned public officer for as long as the act complained of was committed in service.

- Otherwise, public officers who have long been separated from service may still be subject of administrative cases.

- This defeats the purpose of discipline, which is not to punish, but to public service and preserve public trust in government. (Ombudsman v. Andutan)

Public office as defined by MechemA public office is the right, authority and duty created and conferred by law which for a given period, either fixed by law or enduring at the pleasure of the creating power , an individual is invested with sovereign functions to be exercised by him for the benefit of the public.

ELEMENTS OF PUBLIC OFFICEa. Must be created by law or an ordinance authorized by lawb. Be invested with some sovereign functions of government to be exercised for public interestc. Functions must be defined, expressly or impliedly by lawd. Function must be exercised directly by an officer directly under the control of the law

e. Have some permanency or continuity, not temporary or occasional

CHARACTERISTICS OF A PUBLIC OFFICE1. Public office is a public trust.

a. It is created in the interest and for the benefit of the public.b. The officers are public servants.c. They are mere agents and not rulers of the people.d. As such, they have no contractual or proprietary right to an office.

2. No one has a vested right to a public office.a. A public officer cannot claim injury if placed under preventive suspension because he has no

vested or absolute right to a public office. (Carabeo v CA)b. Suspension of a public officer without prior notice and hearing does not violate due process

because he has no proprietary or contractual right to it. (Cornejo v. Gabriel)c. More so if the appointment does not specify the station, the employee may be re-assigned if

exigency requires, provided it does not reduce rank, status or salary. (Fernandez v. Sto. Tomas)Except: if the terms of the law that takes it away is unclear.Facts: Segovia is appointed Justice of the Peace. But later, a law was passed that justices shall be appointed to serve until they reach 65 y/o only. When he reached 65. Noel replaced him.Held: The law must be applied prospectively only. Even if he has no vested right to the office, he has some right that cannot be taken away by law which terms are unclear. (Segovia v. Noel)

3. Public office is not a property.Facts: during pendency of an election protest, the protestee died. He was substituted by his widow to pursue his counterclaim for damages.Held: The substitution is not proper. Public office is personal to the incumbent and is not a property which passes to his heirs. (Abeja v. Tanada)

Facts: a municipal president was suspended by the governor while his administrative case for misconduct was ending without opportunity to be heard.Held: prior notice and hearing are not a requisite to suspension because the holder has no proprietary and contractual interest on a public office. (Cornejo v. Gabriel)Except: when the issue is which of the two persons is entitled to the public office. In which case, a public office may be considered property within the protection of the due process clause. That if one is deprived of title to the office, it should be properly litigated before the courts. (Segovia v. Noel)

4. Public office cannot be inherited. Facts: during pendency of an election protest, the protestee died. He was substituted by his widow to pursue his counterclaim for damages.Held: The substitution is not proper. Public office is personal to the incumbent and is not a property which passes to his heirs. (Abeja v. Tanada)

Concerned Citizens of Laoag City v Arzaga AMO No. P-94-1067, January 30, 1997Facts: 2 anonymous letters were addressed to judge Federico Llanes charging Bienvenido Arzaga and Alfredo Mauricio, both process servers of the office of the clerk of court, with influence peddling, drunkenness, gambling, bribery, extortion and manipulation of bonds by using the same property for different cases. These letters were forwarded to Judge Agnir who made no definite recommendation in his report except leaving it to the court administrator to determine whether on the basis of such criminal record alfredo boy mauricio deserves to stay in the service of the judiciary. The office of court administrator recommended that the charges against the 2 respondents be dismissed for lack of merit which the court adopted but referred the case against Mauricio to Judge Agnir for further investigation as to how he managed to be appointed as a process server despite previous conviction. Apparently, Mauricio was a utility worker and was promoted to the position of process server. He disclosed his conviction of crime of frustrated murder and that he was on probation in his application. He was asked about his other criminal charges and why he did not indicate it in his application, he simply said what it asked was conviction and not charges. Judge Agnir strongly recommended the immediate and summary dismissal from the service. It was recommended by the Deputy Court Administrator that he be declared notoriously undesirable and be considered resigned from service.

But it was further recommended that he be reemployed in the government service other than the judiciary.

Held: In reviewing the aforesaid report and recommendation submitted for the Court's consideration, we find the foregoing observations to be correct. We, nonetheless, find the penalty recommended by the Office of the Court Administrator to be very light. Consequently, we adopt the investigating judge's recommendation for respondent's dismissal from the service, the same being warranted and justified by the facts attendant to the instant case.:Public service requires the utmost integrity and strictest discipline. Thus, a public servant must exhibit at all times the highest sense of honesty and integrity not only in the performance of his official duties but in his personal and private dealings with other people. No less than the Constitution sanctifies the principle that a public office is a public trust, and enjoins all public officers and employees to serve with the highest degree of responsibility, integrity, loyalty, and efficiency. In addition, the Code of Conduct and Ethical Standards for Public Officials and Employees provide that every public servant shall at all times uphold public interest over his or her personal interest.:By his acts and misdeeds, respondent has undermined the public's faith in our courts and, ultimately, in the administration of justice. The same make him unfit as a court employee. His employment must therefore be terminated at once. Court personnel must adhere to the high ethical standards of public service in order to preserve the Court's good name and standing.:Time and again, this Court has emphasized that the conduct required of court personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach and must be circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the judiciary.

Fernandez v Sto. Tomas, G.R. No. 116418, March 7, 2005Facts: Petitioner Fernandez was serving as director of the office of personal inspection and audit while petitioner de Lima was serving as director of the office of personnel relations. While they were serving, a resolution was signed by public respondents Sto Tomas and Ereneta, chairman and commissioner respectively. Chairman Sto Tomas expressed the determination of the commission to implement the resolution during the General assembly of the officers and employees of the commission. Petitioners instituted this petition contending that

Issue: WON the resolution violated petitioner’s constitutional right to security of tenure

Held: Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something which may be done only by the same legislative authority which had created those public offices in the first place::The Court is unable, in the circumstances of this case, to accept this argument. The term " public office" is frequently used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. We consider that Resolution No. 94-3710 has not abolished any public office as that term is used in the law of public officers. It is essential to note that none of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public employment between the Commission and any of its officers and employees. We find it very difficult to suppose that the 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, meant to freeze those Offices and to cast in concrete, as it were, the internal organization of the commission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," as the need [for such changes] arises . ” Assuming, for purposes of argument merely, that legislative authority was necessary to carry out the kinds of changes contemplated in Resolution No. 94-3710 (and the Court is not saying that such authority is necessary), such legislative authority was validly delegated to the Commission by Section 17 earlier quoted. The legislative standards to be observed and respected in the exercise of such delegated authority are set out not only in Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code

:Petitioners in effect contend that they were unlawfully removed from their positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and that they cannot, without their consent, be moved out to the Regional Offices of the Commission.:We note, firstly, that appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. Thus, a person may be appointed to the position of Director III or Director IV; or to the position of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II; and so forth. In the instant case, petitioners were each appointed to the position of Director IV, without specification of any particular office or station. The same is true with respect to the other persons holding the same position or rank of Director IV of the Commission.:Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service::It follows that the reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR, respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan Manila and their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been effected with express statutory authority and did not constitute removals without lawful cause. It also follows that such re-assignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other words, acquired a vested right to serve at the Commission's Head Office.

Notes:ELEMENTS OF A PUBLIC OFFICERTo be a public officer, one must be:

1. Taking part in the performance of public functions in the government, or performing in said government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class, and

2. that his authority to take part in the performance of public functions or to perform public duties must be by:a. direct provision of law;b. popular election; andc. appointment by competent authority

CLASSIFICATION OF PUBLIC OFFICERSa. Executive officers- those whose duties are mainly to cause the laws to be executedb. Legislative officers- those whose duties relate mainly to the enactment of lawsc. Judicial officers- those whose duties are to decide controversies between individuals and accusation

made in the name of the public against persons charged with a violation of a lawd. Ministerial officers- those whose duty is to execute the mandate, lawfully issued, of their superiors.e. Officer de jure- one who has the lawful right to the office in all respects, but who has either been ousted

from it, one who has never actually taken profession.f. Officer de facto- one who has the reputation of being the officer he assumes to be, and yet is not the

officer in point of law.

REQUISITES TO BE CONSIDERED A DE FACTO OFFICERNecessity of office

- There must be a created office. No de jure or de facto officer without the office to fill.

Color of title or general recognition and reputation- May consist in election or appointment- Holding office after expiration of term- Acquiescence by the public in the acts of officer for such length of time as to raise presumption of

colorable right

Laurel v Desierto, G.R. No. 145368, April 12, 2002Facts: President Aquino issued AO 223 constituting a committee for the preparation of the national centennial celebration of 1998. Subsequently, president Fidel Ramos issued EO 128 reconstituting the committee and renamed it as the National Centennial Commission. Appointed to the chair was VP Salvador H.Laurel. :Subsequently, PhilippineCentennial Expo ’98 Corporation (Expocorp) was created which Laurel was among the 9 incorporatots, who were also its first 9 directors. Petitioner was elected expocorp’s CEO. Senator Ana Coseteng then delivered a privileged speech denouncing the alleged anomalies in the construction and operation of the centennial exposition project. The blue Ribbon committee and several other were tasked to investigate. The senate blue ribbon committee filed with the secretary of the senate its final report recommending the prosecution of Salvador Laurel for violating the rules on public bidding, relative to the award of centennial contracts to AK(Asia Construction and development corporation); for exhibiting manifest bias in the issuance of the notice to proceed to AK to construct the Freedom ring even in the absence of a valid contract that has caused material injury to the government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation… of the anti-graft law. The saguisag committee recommended further investigation and indictment. The Evaluation and preliminary Investigation bureau issued a resolution finding probable cause to indict Laurel and Pena for conspriing to violate section 3e of RA 3019

Issue: WON the national centennial commission is a public office and WON petitioner, as both chairman of the NCC and of Expocorp, is a public officer as defined under the anti-graft and corrupt practices act — Yes

Held: Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are.   A definition of public officers cited in jurisprudence is that provided by Mechem, a recognized authority on the subject:

A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.  The individual so invested is a public officer.:The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.:Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary.: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.:Did E.O. 128 delegate the NCC with some of the sovereign functions of government?  Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial.  May the functions of the NCC then be described as executive?:We hold that the NCC performs executive functions. The executive power “is generally defined as the power to enforce and administer the laws.  It is the power of carrying the laws into practical operation and enforcing their due observance.” The executive function, therefore, concerns the implementation of the policies as set forth by law.:The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. :Petitioner invokes the ruling of this Court in Torio vs. Fontanilla that the holding by a municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues that the “holding of a nationwide celebration which marked the nation’s 100th birthday may be likened to a national fiesta which involved only the exercise of the national government’s proprietary function.”:Torio, however, did not intend to lay down an all-encompassing doctrine.  Note that the Court cautioned that “there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive.” Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the “surrounding

circumstances plus the political, social, and cultural backgrounds” could produce a conclusion different from that in Torio::Clearly, the NCC performs sovereign functions.   It is, therefore, a public office, and petitioner, as its Chair, is a public officer.:That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position.   It is not conclusive . The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good.Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. But it is a public office, nonetheless.:Neither is the fact that the NCC was characterized by E.O. No. 128 as an “ad-hoc body” make said commission less of a public office.  The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office.   “But,” says Chief Justice Marshall, “if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer.”:At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present “it can make no difference,” says Pearson, C.J., “whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior.”:Finally, it is contended that since petitioner supposedly did not receive any compensation for his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman. :It is clear from Section 2 (b), above, that the definition of a “public officer” is expressly limited to the application of R.A. No. 3019.  Said definition does not apply for purposes of determining the Ombudsman’s jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. 

Segovia v Noel, 47 Phil. 543Facts: Vicente Segovia was appointed justice and continuously occupied until having passed 65, he was ordered by sec of justice to vacate the office and since that date, pedro Noel, the auxiliary justice of the peace has acted as justice of peace for the municipality of Dumanjug. Segovia filed a quo warrant proceedings inquiring as to the right of pedro noel to occupy the office of justice and to oust him. Pedro Noel interposed this on the ground that it did not allege facts to constitute a cause of action since RA 3107 was constitutional and Segovia being 65 yrs old had automatically ceased to be a justice of the peace.:Petitioner contends that RA 3107 section is unconstitutional as it impairs the contractual right of the petitioner to an office

Issue: WON the portion of RA 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they reached the age of 65 years, should be given retroactive or prospective effect

Held: It is a fundamental principle that a public office cannot be regarded as the property of the incumbent, and that a public office is not a contract.:.. It was this section which section 1 of Act No. 3107 amended by adding at the end thereof the following proviso: "Provided, That justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years." But section 206 of the Administrative Code entitled "Tenure of office," and reading "a justice of the peace having the requisite legal qualifications shall hold office during good behavior unless his office be lawfully abolished or merged in the jurisdiction of some other justice," was left unchanged by Act No. 3107.:A sound canon of statutory construction is that a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by

necessary implication. :The same rule is followed by the courts with reference to public offices. A well-known New York decision held that "though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated." (People ex rel. Ryan vs. Green [1874], 58 N.Y., 295.) In another case, a new constitutional provision as to the advanced age which should prevent the incumbents of certain judicial offices from retaining them was held prospective; it did not apply to persons in office at the time of its taking effect. (People vs. Gardner, 59 Barb., 198; II Lewis' Sutherland Statutory Construction, Chap. XVII, particularly pages 1161, 1162; Mechem on Public Officers, sec. 389.):The case at bar is not the same as the case of Chanco vs. Imperial ( [1916], 34 Phil., 329). In that case, the question was as to the validity of section 7 of Act No. 2347. The law under consideration not only provided that Judges of First Instance shall serve until they have reached the age of sixty-five years, but it further provided "that the present judges of Courts of First Instance ... vacate their positions on the taking effect of this Act: and the Governor-General, with the advice and consent of the Philippine Commission, shall make new appointments of judges of Courts of First Instance ... ." There the intention of the Legislature to vacate the office was clearly expressed. Here, it is not expressed at all.:The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified in giving the law an interpretation which would legislate faithful public servants out of office.:Answering the question with which we began our decision, we hold that the proviso added to section 203 of the Administrative Code by section 1 of Act No. 3107, providing that justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years, should be given prospective effect only, and so is not applicable to justices of the peace and auxiliary justices of the peace appointed before Act No. 3107 went into force. Consequently, it results that the decision of the trial court is correct in its findings of fact and law and in its disposition of the case.

Cornejo v Gabriel, 41 Phil. 188 (1920)Facts: The suspended municipal president of Pasay, Rizal seeks to have the provincial governor and the provincial board of the province of rizal temporarily restrained from the investigation of the charges filed against him pending resolution of the case and to have an order issued directed to the provincial governor commanding him to return the petitioner to his position as municipal president of pasay. The provincial governor answered that he investigated the complaints. Counsel for the petitioner argued that petitioner has been deprived of an office, to which he was elected by popular vote, without having an opportunity to be heard in his own defense. Respondents reply that they merely complied with the requirements of the law.:The important fact is that the law, in permitting a provincial governor temporarily to suspend a municipal officer, makes no mention of a formal hearing of the charges.

Held: In the exercise of this disciplinary power by the provincial governor, all that he can do before the presentation of formal charges is either to reprimand the officer or to suspend him temporarily from office. In the latter case the provincial governor's action is not a finality. The law is especially careful to guard the rights of officer charged with maladministration in office. But the point is made that, notwithstanding the provisions of the law and notwithstanding long official practice, the temporary suspension of a municipal officer, without an opportunity to be heard in his own defense, is in contravention of the provisions of the Philippine Bill of Rights concerning due process of law.:It is but fair, in ordinary cases, that a public official should not be removed or suspended without notice, charges, a trial, and an opportunity for explanation. But not permitting our judgment to be unduly swayed by sympathy for the petitioner's brave fight, and recalling again that the courts have ordinarily to give effect to legislative purposes, it is further only fair to mention certain exceptions to the due process of law rule , which would seem to include the instant case.:The fact should not be lost sight of that we are dealing with an administrative proceeding and not with a

judicial proceeding… While a day in court is a matter of right in judicial proceedings, in administrative proceedings it is otherwise since they rest upon different principles. In certain proceedings, therefore, of an administrative character, it may be stated, without fear of contradiction, that the right to a notice and hearing are not essential to due process of law. Examples of special or summary proceedings affecting the life, liberty or property of the individual without any hearing can easily be recalled. Among these are the arrest of an offender pending the filing of charges; the restraint of property in tax cases; the granting of preliminary injunction ex parte; and the suspension of officers or employees by the Governor-General or a Chief of a Bureau pending an investigation.:Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office as "property." It is, however, well settled in the United States, that a public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency. In the case of Taylor vs. Beckham ([1899], 178, U. S., 548), Mr. Chief Justice Fuller said that: "Decisions are numerous to the effect that public offices are mere agencies or trust, and not property as such." The basic idea of government in the Philippine Islands, as in the United States, is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents.:… ”Power to suspend may be exercised without notice to the person suspended. It was here held by the Supreme Court of Florida that the governor could, under section 15 of the executive article of the Constitution, suspend an officer for neglect of duty in office without giving previous notice to the officer of the charge made against him.:We are of opinion the plaintiff in error was not deprived of any right guaranteed to him by the Federal Constitution, by reason of the proceedings before the Governor under the statute above mentioned, and resulting in his suspension from office.:The procedure was in accordance with the constitution and laws of the State. It was taken under a valid statute creating a state office in a constitutional manner, as the state court has held. What kind and how much of a hearing the officer should have before suspension by the Governor was a matter for the state legislature to determine, having regard to the constitution of the State.:Certain intimations have been made that under the procedure prescribed by the law an injustice might be done municipal officers. Such suppositions are not unusual even as to cases before the courts, but in this as in all other instances, the presumption always is that the law will be followed and that the investigation and the hearing will be impartial. :The suggestion that an unfriendly governor might unduly delay the hearing is also without much force. The same might be said of any administrative officer, or in fact of any judicial officer. The presumption, again, is that every officer will do his duty promptly, and if he does not, certainly a remedy can be found to make him do so. Not only this, but the law before us expedites the proceedings by fixing a short period of ten days within which the provincial governor must lay the charges before the provincial board, which must be heard by the latter body within fifteen days. Of more compelling force is the suggestion from the other side that the public interest might suffer detriment by postponing the temporary suspension until after the hearing.:Our holding, after most thoughtful consideration, is that the provisions of section 2188 of the Administrative Code are clear and that they do not offend the due process of law clause of the Philippine Bill of Rights. Accordingly, it is our duty to apply the law without fear or favor.

Abeja v TañadaFacts: Evelyn Abeja and Rosauro Radovan were contenders for the office of the municipal mayor. Latter was proclaimed to which petitioner filed an election contest. Motion after motion was filed. Rosier Radovan died but was substituted by Vice-Mayor Conrado de Rama and, surprisingly, by his surviving spouse, Ediltrudes Radovan. Petitioner filed a motion to determine votes, to proclaim winner and to allow assumption of office. Judge Federica Tanada, the successor of Judge Lopez (who was the judge in the election protest case but was later on reassigned) denied the motion of Abuja saying that it was premature on the ground that until after the 36 counter-protested precincts have been revised, the court could not render a valid decision. Petitioner then asked, which the court issued, a TRO enjoining respondents from continuing with the revision of the ballots in the 36 counter-protested precincts.

:Petitioner contends that the revision of the counter-protested precincts filed has already been abandoned by the failure to pursue the same, right after the revision of the 22 protested precincts. Petitioner also argue that the case was deemed submitted for decision upon submission by the Board of Revisors of the Report on the Revision of the 22 protested precincts. (smaller font not really relevant to our topic)

Issue: WON the substitution was proper

Held: In the case at bar, private respondent unreasonably failed to cause the revision of the counter-protested precincts despite being afforded ample time to do so and must be deemed to have abandoned it.:We also find as erroneous the substitution of the deceased Rosauro Radovan's widow, Ediltrudes Radovan, on the ground that private respondent had a counter-claim for damages. "Public office is personal to the incumbent and is not a property which passes to his heirs" The heirs may no longer prosecute the deceased protestee's counter-claim for damages against the protestant for that was extinguished when death terminated his right to occupy the contested office

Javier v Sandiganbayan, G.R.No. 147026-27, 9-11-09Facts: RA 8047 “Book Publishing industry development act” was enacted into law. To achieve the purpose of the law, the National Book Development board was created under the administration and supervision of the office of the president. Petitioner was appointed to the governing board as a private sector representative for 1 yr. She was also the president of the book suppliers association of the Philippines. She was issue by the office of the president a travel authority to attend the Madrid international book fair and was allowed her travelling expenses but she was not able to attend. The resident auditor advised petitioner to immediately refund the cash advance considering that her trip was cancelled but she failed to do this. Later, the Executive director of the NBDB and COA filed a complaint against petitioner for malversation of public funds and properties. The ombudsman found probable cause to indict petition and recommended the filing of the information and she was then charged. The cases were filed before the sandiganbayan. During arraignment, petitioner pleaded not guilty and delivered the money subject of the criminal cases.: Petitioner then filed a motion to quash saying that the information did not charge her as a co-principal, accomplice or accessory to a public officer committing an offense under the sandiganbayan’s jurisdiction. She also averred that she is not a public officer or employee and that she belongs to the governing board only as a private sector representative, hence, she may not be charged under the RA 3019 before the sandiganbayan or under any statue which covers public officials. She also claimed that she does not perform public functions and is without any administrative or political power to speak of—that she is serving the private book publishing industry by advancing their interest as participant in the government's book development policy.

Held: The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a statutory government agency created by R.A. No. 8047, which was enacted into law to ensure the full development of the book publishing industry as well as for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation.:A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.   The individual so invested is a public officer:Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development.  Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office.   She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book

publishing industry.:Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer.:On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer.:Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047.   She was supposed to represent the country in the canceled book fair in Spain.:In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan.:Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the employees classified as SG-28, included in the phrase “all other national and local officials classified as ‘Grade 27' and higher under the Compensation and Position Classification Act of 1989.” —> w/in the jurisdiction of the Sandiganbayan

Azarcon v Sandiganbayan, 268 sCRA 747Facts: Petitioner Alfredo Azarcon owned and operated an earth-moving business. His services were contracted by Paper industries corporation of the philippines (PICOP). Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former’s premises. A warrant of distraint of personal property of Jaime Ancla was issued. The warrant of garnishment was issued to Alfredo Asarco ordering him to transfer the property in his possession owned by Ancla. He signed “receipt for goods, articles and things seized under authority of the National Internal revenue”, assumed the undertakings specified int he receipt. He promised that he would faithfully keep, preserve and protect the goods that were seized. Incidentally, petitioner reported the taking of the truck to the security manager of PICOP and requested him to prevent the truck from being taken out of the PICOP concession. But by the time the order to bar the truck’s exist was given, however, it was too late. Thereafter, along with co-accused Jaime Ancla, petitioner Asarco was charged before the Sandiganbayan with the crime of malversation of public funds or property.:Petitioner contends that he was not a public officer, hence a doubt exists as to why he was being charged with malversation under art 217 of the RPC. The sandiganbayan still found him accused beyond reasonable doubt

Issue: Does the sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a principal after the said individual had been designated by the BIR as a customdian of distrained property? Did such accused become a public officer and therefore subject to the graft court’s jurisdiction as a consequence of such designation by the BIR?

Held: The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction. :The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan’s jurisdiction.  Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction over the crime charged.  Article 203 of the

RPC determines who are public officers:: Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election. The next logical query is whether petitioner’s designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority. We answer in the negative.:The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned by Jaime Ancla, and in requiring the petitioner Alfredo Azarcon who was in possession thereof to sign a pro forma receipt for it, effectively “designated” petitioner a depositary and, hence, citing U.S. vs. Rastrollo, a public officer.:We disagree.  The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are not identical, similar or analogous to those obtaining here.  While the cited case involved a judicial deposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIR’s administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which was received by petitioner Azarcon. In the cited case, it was clearly within the scope of that court’s jurisdiction and judicial power to constitute the judicial deposit and give “the depositary a character equivalent to that of a public official.” However, in the instant case, while the BIR had authority to require petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer.: Thus, although the “appointing power is the exclusive prerogative of the President, x x x” the quantum of powers possessed by an administrative agency forming part of the executive branch will still be limited to that “conferred expressly or by necessary or fair implication” in its enabling act.  Hence, “(a)n administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof.” Corollarily, implied powers “are those which are necessarily included in, and are therefore of lesser degree than the power granted.  It cannot extend to other matters not embraced therein, nor are not incidental thereto.”For to so extend the statutory grant of power “would be an encroachment on powers expressly lodged in Congress by our Constitution.”It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring “any person” to preserve a distrained property, However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIR’s power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. The prosecution argues that “Article 222 of the Revised Penal Code x x x defines the individuals covered by the term ‘officers’ under Article 217 x x x” of the same Code. And accordingly, since Azarcon became “a depository of the truck seized by the BIR” he also became a public officer who can be prosecuted under Article 217 x x x.”:The Court is not persuaded.  Article 222 of the RPC reads: “Officers included in the preceding provisions. -- The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.”:The language of the foregoing provision is clear.  A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer.:After a thorough review of the case at bench, the Court thus finds petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had no jurisdiction over them. The Sandiganbayan’s taking cognizance of this case is of no moment since “(j)urisdiction cannot be conferred by x x x erroneous belief of the court that it had jurisdiction.” As aptly and correctly stated by the petitioner in his memorandum: “From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact charging two private individuals without any public officer being similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void

for lack of jurisdiction.”

Serana v Sandiganbayan, G.R. No. 162059, Jan. 22, 2008Facts: Hanna Serana was a senior government scholar of the UP. She was appointed by President Estrada as a student regent of UP. Petitioner discussed with president estrada the renovations of the vinzons hall annex in UP. Petitioner with her siblings and relatives registered with the SEC the Office of the student regent foundation, inc (OSFRI). 15 million was allocated to the OSFRI as financial assistance for the proposed renovation, the source of the funds were from the office of the president. The renovations failed to materialize and so the succeeding student regent, Kristine Bugayong filed a complaint for malversation of public funds with the office of the ombudsman which was later docketed with the sandiganbayan. She was charged with estafa together with her brother. :Petitioner moved to quash the information claiming that the sandiganbayan does not have jurisdiction over the offense charged or over her person, in her capacity as a UP student regent. She also argued that the money came from president estrada & not the government; As a student regent, she was not a public officer since she merely represented her peers, in contrast to other regents who held their positions in an ex officio capacity; that she was a simple student & did not receive any salary as student regent

Issue: Can the Sadiganbayan try a government scholars accused, along with her brother, of swindling government funds? —Yes

Held: Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other felonies . The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office.:Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon to define a public officer. In Aparri v. Court of Appeals, the Court held that: A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public. The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it. There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary.:Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People,We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.:Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.:Moreover, it is well established that compensation is not an essential element of public office. At most, it

is merely incidental to the public office.:Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer. The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit. :Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office.:In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x.”:Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground.

Go v Sandiganbayan, G.R. No. 172602, April 13, 2007Facts: In Agan vs PIATCO, the court declared null and void the 1997 concessions agreement and other contracts entered into for being contrary to public policy. By the aforementioned contracts, the government awarded in favor of PIATCO the project for the development of NAIA III. Subsequently, Ma cecilia Pesayco, corporate secretary of asia’s emerging dragon corporation, filed and charged several persons in connection with the NAIA III project. The office of ombudsman then filed with sandiganbayan charging Vicente Rivera, then DOTC secretary, and petitioner go, chairman and president of PIATCO, with violation of ra 3019.:Petitioner Go contends that he could not be charged under ra 3019 because he is not a public officer and neither is he capacitated to enter into a contract or transaction on behalf of the government.

Held: Like in the present case, the Information in the said case charged both public officers and private persons with violation of Section 3(g) of RA 3019.:Section 9 of RA 3019 buttresses the conclusion that the anti-graft law’s application extends to both public officers and private persons. The said provision, quoted earlier, provides in part that: SEC. 9. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated….:The fact that one of the elements of Section 3(g) of RA 3019 is "that the accused is a public officer" does not necessarily preclude its application to private persons who, like petitioner Go, are being charged with conspiring with public officers in the commission of the offense thereunder.:The case of Singian, Jr. v. Sandiganbayan is instructive. In the said case, Gregorio Singian, Jr., a private person who was then Executive Vice-President of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine National Bank (PNB), was charged with violation of Section 3(e) and (g) of RA 3019 in connection with the loan accommodations that the said bank extended to ISI which were characterized as behest loans. Singian thus illustrates that private persons, like petitioner Go, when conspiring with public officers, may be indicted and, if found guilty, held liable for violation of Section 3(g) of RA 3019. :The precept that could be drawn from Luciano, Singian and Domingo, and which is applicable to the present case, is that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto.:In contrast, petitioner Go cannot rightfully assert the total absence of the first element in his case because he is not being charged alone but in conspiracy with Rivera, undoubtedly a public officer by virtue of his then being the DOTC Secretary. The case against both of them is still pending before the Sandiganbayan. The facts

attendant in petitioner Go’s case are, therefore, not exactly on all fours as those of the former First Lady’s case as to warrant the application of the Marcos ruling in his case.:Indeed, it bears stressing that "[t]o establish conspiracy, direct proof of an agreement concerning the commission of a felony and the decision to commit it is not necessary. It may be inferred from the acts of the accused before, during or after the commission of the crime which, when taken together, would be enough to reveal a community of criminal design, as the proof of conspiracy is frequently made by evidence of a chain of circumstances. Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of them, for in contemplation of the law the act of one is the act of all."

B. Kinds of public officersDe jureDe facto

Sampayan v Daza, G.R. No. 103903, September 11, 1992Facts: Petitioners, residents of the northern samar, filed a petition seeking to disqualify respondent Raul Daza, incumbent congressman, from continuing to exercise his functions of his office on the ground that he is a ground holder and a lawful permanent resident of the US. They allege that he has not renounced his status as a permanent resident by any act or declaration. Petitioners then sought to disqualify Daza from running the the recent elections and that their present petition is concerned with the unlawful assumption of office by Daza. Dana denied the fact that he was a permanent resident and that if he was, he had long waived the status when he returned to the Philippines. :Petitioners contend that he should be disqualified from exercising the functions of his office for being a permanent resident alien of the US at the time when he filed his CoC

Held: We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992 that they seek to unseat respondent from his position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992.  Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal.  Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualification of its members.  Since petitioners challenge the qualifications of Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent Daza's certificate of candidacy before the election or a quo warranto case with the House Electoral Tribunal within ten (10) days after Daza's proclamation. Third, a writ of prohibition can no longer be issued against respondent since his term has already expired.  A writ of prohibition is not intended to provide for acts already consummated. Fourth, as a de facto public officer, respondent cannot be made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer.  Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered.

General Manager of PPA v Monserate, G.R. No. 129616 April 17, 2002Facts: Juleta Monerate started as a bookkeeper in the port of management office. She was then promoted as cashier then as finance officer. She was then appointed to the position of manager. Her appointment was protested by petitioner Ramon Anino, the 2nd to respondent for the position. The PPA appeals board sustained the protest and rendered ineffective the appointment. She then appealed to this saying that the proceedings were irregular because she was not notified of the hearing nor was she informed of the reasons behind her replacement. Meanwhile, the PPA order officially reassigned her to the position of Administrative officer which was petitioner's former position which was also lower than her previous position as a finance officer. She appealed with CSC protesting against petitioner’s Anino’s appointment but was dismissed. CA later reinstated her & now she is claiming for backwages.

Issue: WON respondent Monserate is entitled to backwages after being reinstated

Held: The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages.  This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Anino’s appointment to the contested position. Also, petitioner Anino retired from the service on November 30, 1997

:In this respect, while petitioner Anino’s appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency . A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular. In Monroy vs. Court of Appeals, this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure , even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary, this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus: “x x x in cases where there is no de jure officer , a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office.”:In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds.  Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.

C. Who may be public officers: eligibility and qualificationsWho prescribes qualifications

Time of possession of qualificationsFrivaldo v Comelec, 257 SCRA 731

Facts: Juan Frivaldo filed his certificate of candidacy for the office of governor of Sorsogon in the May 1995 elections. Raul Lee, another candidate, prayed to have Frivaldo’s disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines . The Comelec disqualified Frivaldo and proclaimed Lee as the winner despite Frivaldo having garnered the highest votes. Frivaldo alleged that on june 30 1995 at 2pm, he took his oath of allegiance as a citizen of the Philippines after his petition for repatriation under pd 725 in September 1994 had been granted. As such, when he received the order for the reconvening of the votes to proclaim lee as the winner, which he received on june 30 at 530, there was no more legal impediment to the proclamation of frivaldo as governor. This decision was reversed holding that Lee did not garner the highest number of votes thereby his proclamation is annulled; and that Frivaldo be proclaimed as the governor having garnered highest votes and having reacquired his filipino citizenship by repatriation on june 30 1995 under the provisions of pd 725, and thus qualified to hold office of governor.

Held: The Local Government Code of 1991 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus: Sec. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippine s; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or

mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day.:in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States — a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace — and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people.:Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed,”—> From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day).:Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereo f . Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin . Since Frivaldo re-assumed his citizenship on June 30, 1995—the very day the term of office of governor (and other elective officials) began—he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. (Qualifications of Elective officials and not Qualifications of candidates — meaning the qualifications are only required when he is already an elective official-the day term of office begins):But perhaps the more difficult objection was the one raised during the oral argument to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under the law a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less a validly registered one — if he was not a citizen at the time of such registration. —> The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration—not the actual voting—is the core of this "qualification." In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern — and not anywhere else —> It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.:There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible:But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17,1994.:Lee contends that the court’s 2 rulings declaring Frivalod an alien have also become final and executory way

before the 1995 elections, and these “judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines." —>Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose.

- Disclaimer: I think this was overturned, If i’m not mistaken. I remember sir saying that you need to possess all qualifications at the time you file your certificate of candidacy.

- : THIS IS NOT A PRECEDENT that he did not have his qualifications at the time of filing his certificate of candidacy. THIS IS A SPECIAL CASE. DO NOT USE IT IN YOUR ANSWERS. (based from my old notes)

Usual qualificationsArticle VI, Sections 2 & 6, 1987 Constitution

Section 2. The Senate shall be composed of 24 Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Section 6. No person shall be a Member of the House of Representatives unless he is a 1 natural-born citizen of the Philippines and, on the day of the election, is 2at least twenty-five years of age, 3able to read and write, and, except the party-list representatives, 4a registered voter in the district in which he shall be elected, and a 5resident thereof for a period of not less than 1 year immediately preceding the day of the election.

Article VII, Section 3, 1987 ConstitutionSection 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.

Article IX(B), (C), Section 1(1), 1987 ConstitutionSection 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.

Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.

Section 22, Book V, EO 292SECTION 22. Qualification Standards.—(1) A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. The degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular position.Qualification standards shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit of the agencies’ personnel work programs.It shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service.(2) The establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission and in consultation with the Wage and Position Classification Office.

Article III, Section 5, 1987 ConstitutionSection 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Maquera v Borra, G.R. No. L-24761, Sept. 7, 1965Facts: RA 4421 was enacted which required all candidates for national, provincial, city and municipal offices to post a surety bond equivalent to 1 yr salary or emoluments of the position to which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or municipal government concerned if the candidate, except when declared winner, fails to obtain at least 10% of the votes cast for the office to which he has filed his certificate of candidacy, there being not more than four (4) candidates for the same office. The Comelec, in compliance with the said RA, decided to require all candidates for president, vp, sentor and members of the HOR to file surety bond. The Comelec also required every candidate to pay the premium chared by the bonding companies.:It was contended that the effect of RA 4421 would prevent or disqualify from running for president, vp, senator or HOR, who although having the qualifications prescribed by the constitution, cannot t file the surety bond, owing to failure to pay the premium; that is likewise had the effect of disqualifying for provincial, city or municipal elective officers, persons who, although possessing the qualifications prescribed by law, cannot pay said premium or do not have the property essential

Held: Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications in order that a person could run for a public office and that the people could validly vote for him. That said property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office; and That the bond required in Republic Act No. 4421 and the confiscation of said bond are not predicated upon the necessity of defraying certain expenses or of compensating services given in connection with elections, and is, therefore, arbitrary and oppressive.

Social Justice Society v Dangerous Drugs G.R. No. 157870, November 3, 2008Facts: the constitutionality of section 36 of the Comprehensive dangerous drugs act was questioned insofar as it requires mandatory drug testing of candidates for public officers, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses. :Petitioner SJS sought to prohibit the dangerous drugs board and the PDEA from enforcing the certain paragraphs of section 36 of the RA on the ground that they are constitutionally infirm on the grounds that: 1. They constitute undue delegation of legislativee power when they give ununbridled discretion to schools and employers to determine the manner of drug testing.  For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable.  And for a third, a person’s constitutional right against unreasonable searches is also breached by said provisions.

Held: In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution and that Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.:Pimentel’s contention is well-taken.  Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional.

:In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution:Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that “[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test.” Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement.:It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. (Pimentel case):(SJS case) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. (reason not relevant to our topic):Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that “subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,” has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. :The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.:Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing , we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. — private sector:Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.

- SC said for students, mandatory because it does not really go into the privacy, valid because it was random and suspiciousness and does not make one a suspect; for the inmates, not valid, because there is already chance or suspicion that they are; in private sector, valid but there were parameters that result of drug test should not be disclosed to the public and respect self-privacy— confidentiality clause and this was also random; employees in the government- the appointive- if we validate the right of private er and conduct random drug test, with more reason we validate right of government to issue random drug test

DisqualificationsUnder the ConstitutionUnder the Local Government CodeOmnibus Election CodeOther laws

Effect of pardonArticle 36, Revised Penal Code

Art. 36. Pardon; its effect. — A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.chanrobles virtual law libraryA pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.chanrobles virtual law library

Monsanto v Factoran, G.R. No. 78239, Feb. 9, 1989Facts: Salvacion Monsanto was convicted of complex crime of estafa thru falsification. While her motion for reconsideration was pending, President Marcos extended to her an absolute pardon which she accepted. And by reason of said pardon, she wrote to the Calbayog city treasurer requesting that she be restored to her former post as assistance city treasurer since the same was still vacant. The Finance ministry ruled that she may be reinstated without necessity of new appointment not earlier than the date she was extended the absolute pardon. Petitioner sought reconsideration stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension; that she is entitled to backpay for the entire period of her suspension. But her reconsideration was denied ruling that petitioner was not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. :Petitioner’s basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained “suspended”. More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same

Issue: WON a public officer, who has been granted an absolute pardon by the chief executive, is entitled to reinstatement to her former position without need of a new appointment?

Held: Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon. The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office.:Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.”

:The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored . But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality.:In Pelobello v. Palatino, We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction…:To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness.:The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction.”:A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits.:Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, we find this strong observation: "To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed.:In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen.:Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor.” Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege.:Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office.

:The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.:For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.

Garcia v Chair of CoA, G.R. No. 75025, 9-14-93Facts: Petitioner was a supervising lineman but was later dismissed on the ground of dishonestly He was later tried for qualified theft but he was acquitted. He sought reinstatement to his former position in view of his acquittal if the criminal case but this was denied. He then pleaded to the president of the Philippines for executive clemency which was granted. Petitioner then filed with respondent COA a claim for payment of back salaries effective from the date of his dismissal from the service. But this was denied on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. It appears that petitioner was recalled but records do not show whether his reinstatement was to the same position.

Issue: WON he is entitled to the payment of backwages after having been reinstated pursuant to the grant of executive clemency

Held: Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances: Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.:He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. :From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon:Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran, we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.:But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt.

:In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission.:The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon . This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency.:Petitioner’s automatic reinstatement to the government service entitles him to back wages. This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages.:Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages.:After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages.

D.Formation of relations

By electionBy appointment

Central Bank v CSC, G.R. No. 80455-56, April 10, 1989Facts: The promotions board of the central bank, with a representative of the cdc in attendance, deliberated on the filling up of the vacant position of the assistant bank physician of the central bank. It found Dr Jordan as the only next-in-rank employee. On the other hand, it appears that respondent Borja filed an application for the position of medical director in central bank which he was hired for. Dr Jordan was then designated to act as assistant bank physician to which Broja protested contending that he was more qualified than she. The Merit systems board found the appeal meritorious and ruled that Borja should have bee the one appointed as assistant bank physician. But the decision was set aside and Dr. jordan’s appointment was confirmed. Borja appealed with CSC who set aside the decision of the MSB and directed the appointment of the private respondent Borja to the contested position. :Petitioner contends that the csc acted without or in excess of jurisdiction in revoking the appointment of Dr. Jordan and in directing the issuance of the appointment in favor of Dr. Borja when all the while the qualifications of Dr. Jordan were certified by the Promotions Board and a representative of the Civil Service Commission who was present in the deliberations of the same board. Petitioner Bank added that the power of the Commission is limited to determining whether or not the appointee has the appropriate eligibility and

qualification and that once such qualification was certified, the Commission is duty bound to attest to the appointment.

Issue: May the CSC disapprove an appointment and require the appoinment of another person whom it believes is more qualified for the position?

Held: It is well-settled principle that the appointing authority is given ample discretion in the selection and appointment of qualified persons to vacant positions . This is a management prerogative which is generally unhampered by judicial intervention. Within the parameters of this principle, the right to select and appoint employees is the prerogative of the employer which may be exercised without being held liable therefor provided that the exercise thereof is in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements and provided further that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite.:There is no question that the Central Bank of the Philippines is vested with the power of appointment. :Under the Civil Service Act of 1959, the Commissioner of Civil Service has the final authority on appointments. But the situation has changed under the new law, Presidential Decree No. 807, otherwise known as the Civil Service Decree, wherein the Commission is not authorized to curtail the discretion of the appointing official on the nature or kind of appointment to be extended. The authority of the Commission is limited to approving or reviewing the appointment in the light of the requirements of the law governing the Civil Service.:Private respondent anchors his protest on the ground that he is more qualified than the appointee. It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Laws. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law.:Private respondent alleges, however, that the power of appointment is not absolute and that the Commission is empowered to approve or disapprove the same, citing Section 9(h) of Article V of the Civil Service Decree and Section 4 of Civil Service Commission Resolution No. 83-343. This is correct As noted earlier, the appointment is subject to verification by the Commission as to whether or not the appointing authority complied with the requirements of the law , otherwise, it may revoke the appointment . However, to conclude that the Commissioner may also direct the appointment of individuals other than the choice of the appointing power is certainly not contemplated by the law. :From the foregoing, it is clear that the Commission has the authority to check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment must be approved; if not it should be disapproved. No other criterion may be employed by the Commission when it acts on an appointment.:Thus, when as in this case, it is not disputed that the appointee, Dr. Jordan, is qualified for the contested position, the Commission exceeded its power in revoking her appointment on the ground that private respondent is more qualified. The Commission cannot substitute its will for that of the appointing authority.:It must be stressed that the law does not impose a rigid or mechanical standard on the appointing power. The appointing person enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and to assume the responsibilities of the position to be filled. As earlier ruled in Reyes vs. Abeleda, at least sufficient discretion, if not plenary, should be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the position to determine who can best fulfill the functions of the office thus vacated. Unless the law speaks in mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority. The power of appointment is essentially a political question involving considerations of wisdom which only the appointing authority can decide.

Appointment distinguished from designationSantiago v CoA, G.R. No. 92284, July 12, 1991

Facts: Petitioner Teodoro Santiago was a state auditor in the COA who was detailed with the MIAA. Petitioner was later on designated as the acting assistant general manager for finance and administration. He served in this capacity and collected the differential salary and received his compensation until he was transferred to the presidential management staff under COA. He then later retired after working in in the government for 44 years. In computing the retirement benefits, COA used a different basis as what GSIS used to compute. COA disagreed with the GSIS computation. Petitioner then requested for recomputation based on what he claimed as his highest basic salary rate but this was denied.

Held: We note at the outset that there is no dispute regarding the legality of the petitioner's occupying the second position in the MIAA and receiving additional compensation for his services therein. As the Solicitor General observed. "What the petitioner was receiving from the MIAA was the additional compensation allowed under Section 17 of Act No. 4187 which, in turn, is allowed under Section 8, Paragraph B, Article IX of the Constitution.”:In Quimzon v. Ozaeta, this Court held that double appointments are not prohibited as long as the positions involved are not incompatible, except that the officer or employee appointed cannot receive additional or double compensation unless specifically authorized by law. The additional compensation received by the petitioner is not an issue in the case at bar because of its express approval by the COA and the admission of the Solicitor General that it is allowed under the cited provision.:The Solicitor General's main argument is that the petitioner cannot invoke Section 9 (Highest basic salary rate as the basis for computation of the retirement pay) because he was not appointed to the second position in the MIAA but only designated thereto . It is stressed that under the said provision, "the compensation of salary or pay which may be used in computing the retirement benefits shall be received by an official employee as fixed by law and/or indicated in his duly approved appointment." The petitioner's additional salary was fixed not in a duly approved appointment but only in a designation.:Belittling this argument, the petitioner maintains that there is no substantial distinction between appointment and designation. He cites Mechem, who defines appointment as "the act of designation by the executive officer, board or body, to whom that power has been delegated, of the individual, who is to exercise the functions of a given office." He also invokes Borromeo v. Mariano, where this Court said that "the term "appoint," whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual.”:Strictly speaking, there is an accepted legal distinction between appointment and designation. While appointment is the selection by the proper authority of an individual who is to exercise the functions of a given office, designation, on the other hand, connotes merely the imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment (or election). A person may also be designated in an acting capacity, as when he is called upon to fill a vacancy pending the selection of a permanent appointee thereto or, more usually, the return of the regular incumbent. In the absence of the permanent Secretary for example, an undersecretary is designated acting head of the department.:As the Court said in Binamira v. Garrucho: Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official.. It is said that appointment is essentially executive while designation is legislative in nature.:Nevertheless, we agree with the petitioner that in the law in question, the term "appointment" was used in a general sense to include the term "designation." In other words, no distinction was intended between the two terms in Section 9 of Executive Order No. 966. We think this to be the more reasonable interpretation, especially considering that the provision includes in the highest salary rate "compensation for substitutionary services or in an acting capacity." This need not always be conferred by a permanent appointment. A contrary reading would, in our view, militate against the letter of the law, not to mention its spirit as we perceive it. That spirit seeks to extend the maximum benefits to the retiree as an additional if belated recognition of his many years of loyal and efficient service in the government.:As thus interpreted, Section 9 clearly covers the petitioner, who was designated Acting Assistant General Manager for Finance and Administration in the office order issued by Secretary Reyes on August 10, 1988. The position was then vacant and could be filled either by permanent appointment or by temporary designation. It cannot be said that the second position was only an extension of the petitioner's office as State

Auditor IV in the Commission on Audit as otherwise there would have been no need for his designation thereto. The second office was distinct and separate from his position in the Commission on Audit. For the additional services he rendered for the MIAA, he was entitled to additional compensation which, following the letter and spirit of Section 9, should be included in his highest basic salary rate.

Sevilla v Santos, G.R. No. 88498, June 9, 1992Facts: Petitioner has been in government service since 1949. His last appointment was last assistant city engineer of palayan city which he discharged until he was designated as acting city engineer of cabanatuan. During the Edsa revolution and the people power, the OIC mayor of canabatuan appointed defendant appellant Nerito Santos as the city engineer of canabantuan. Petitioner as informed of this but since he was on leave at the time, memorandum was received on his behalf. A few months later, petitioner sevilla was designated as the acting district engineer of pasay city. He served in that capacity until he was removed from the office of the new secretary of the DPWH. Petitioner then returned to cabanatuan and filed a petition for quo warranto against Nerito Santos. The lower court reinstated petitioner seville but CA reversed this decision and ruled that by accepting another office, seville in effect voluntarily surrendered his former office and was thereby precluded form maintaining a quo warranto action.:Seville argued that being the presidential appointee, he could not be removed from offfice by an OIC mayor.

Issue: WON an officer who was appointed to an office in an “acting” capacity bring a quo warrant action against the permanent appointee to the position?

Held: An "acting" appointment is merely temporary, one which is good only until another appointment is made to take its place (Austria vs. Amante. 79 Phil. 784). Hence, petitioner's right to hold office as " Acting City Engineer of Cabanatuan City" was merely temporary. It lapsed upon the appointment of Nerito Santos as the permanent city engineer of Cabanatuan City on August 18, 1986.:Petitioner was the incumbent city engineer of Palayan City when he was designated as Acting City Engineering of Cabanatuan City. There is a difference between an appointment an appointment and a designation. Appointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Designation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election. A mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an "acting" capacity only. Thus did this Court made such a distinction:Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official . . . It is said that appointment is essentially executive while designation is legislative in nature.:Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.:Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. . . Appointment involves the exercise of discretion, which because of its nature cannot be delegated.”:Consequently, the designation of petitioner as Acting City Engineering of Cabanatuan City merely imposed upon him the additional function of the City Engineer of Cabanatuan City on top of his regular duties as City Engineer of Palayan City. He may claim security of tenure as City Engineer of Palayan City but he may not lay such a claim to the position of City Engineering of Cabanatuan City for he holds no appointment to the latter office.:The power of appointment is essentially discretionary. Its exercise may not be controlled by the courts. The choice of an appointee from among qualified candidates or applicants is a political and administrative

decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of office concerned for he is familiar with the organizational structure and environmental circumstances within which the appointee must function. The appointing authority in this particular case is the Mayor of Cabanatuan City (B.P. Blg. 337 or the Local Government Code which provides that "the city engineer shall be appointed by the city mayor, subject to civil service law, rules and regulations"). The appointment of Santos by OIC City Mayor Vergara was valid and binding for it was confirmed by the Minister of Public Works and Highways, and approved by the Civil Service Commission.:An action for quo warranto may be commenced by "a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another" (Sec. 6, Rule 66, Rules of Court). Inasmuch as the petitioner does not aver that he is entitled to the office of City Engineer of Cabanatuan City and that Nerito L. Santos is a mere usurper of said office, the Court of Appeals committed no reversible error in dismissing petitioner's action for quo warranto. Petitioner's ouster upon, and by virtue of, Santos' appointment as City Engineer of Cabanatuan City, was not illegal for the petitioner's right to discharge the functions of Acting City Engineer of Cabanatuan City was extinguished when a permanent appointment to the same office was made in favor of the private respondent, Engineer Nerito L. Santos.

Next-in-rank ruleSantiago Jr. v CSC, G.R. No. 81467, October 27, 1989

Facts: Then customs commissioner Tanada extended a permanent promotional appointment as customs collector to petitioner Narciso Santiago. This was approved by the csc. Respondent Leonardo Jose filed a protest with the Merit System Promotion Board mainly on the groudn that he was next-in-rank to the position of the collector of customs. But santiago’spromotional appointment was upheld on the ground that the next-in-rank rule was no longer mandatory (among other grounds). But the Jose appealed to the board who deicded to revoke Santiago’s appointment and directed that Jose be appointed in his stead.

Held: We need only recall our previous ruling in Taduran vs. Civil Service Commission stating that there is "no mandatory nor peremptory requirement in the (Civil Service Law) that persons next-in-rank are entitled to preference in appointment. What it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment.”:One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. As provided for in Section 4, CSC Resolution No. 83- 343: Section 4. An employee who holds a next-in- rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and meets the other conditions for promotion shall be promoted to the higher position when it becomes vacant. However, the appointing authority may promote an employee who is not next-in-rank but who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the minimum requirements for the position.:…explained the reasons behind petitioner's appointment —> On the other hand, after the February revolution, the Protestee was immediately designated by the undersigned as Chief of a task force which has been credited with the seizure of millions of pesos worth of smuggled shipments. Each one was duly recorded, not only in the official files, but also in the media. For the services, the undersigned saw fit, not only to promote the Protestee but also to designate him as my special assistant. It may likewise be mentioned that Protestee has been the recipient of citations awarded by the Customs Commissioner for the two consecutive years 1984 and 1985, for exemplary performance of official duties, particularly investigation and prosecution. More specifically, the latest citation commends the Protestee for his pivotal role in the seizure and forfeiture of an ocean-going vessel upheld by the Supreme Court, which constituted a first in the history of this Bureau.:The power to appoint is a matter of discretion. The appointing power has a wide latitude of choice as to who is best qualified for the position. To apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment:The case of Meram vs. Edralin (L-71228, September 24,1987, 154 SCRA 238) is inapplicable to the factual

situation herein. In said case, we affirmed the appointment of the next- in-rank because the original appointee's appointment was made in consideration of political, ethnic, religious or blood ties totally against the very purpose behind the establishment of professionalism in the civil service.:True, the Commission is empowered to approve all appointments, whether original or promotional, to positions in the civil service and disapprove those where the appointees do not possess the appropriate eligibility or required qualification (paragraph (h), Section 9, P.D. No. 807). However, consistent with our ruling in Luego vs. CSC (L-69137, 5 August 1986,143 SCRA 327), "all the commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications . If he does, his appointment is approved; if not, it is disapproved . No other criterion is permitted by law to be employed by the Commission when it acts on, or as the decree says, "approves" or "disapproves" an appointment made by the proper authorities. ...To be sure, it has no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely (in the appointing authority)."

Discretion of appointing authorityLapinid v CSC, G.R. No. 96298, May 14, 1991

Facts: Petitioner Renato Lapinid was appointed by Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal. Respondent Juanita Junsay protested this appointment contending that he should be designated as terminal supervisor in view of his preferential right. He went to the CSC and challenged the appointment there under the same grounds. The CSC found the protest meritorious and directed that Juanito Junsay and Benjamin Villegas be appointed as termnal supervisor. Lapping moved for reconsideration but this was denied.

Held: In Luego v. Civil Service Commission, this Court declared: 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?: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.:Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. 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.:Only recently, in Gaspar v. Court of Appeals this Court said: The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment.:The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the demands of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard.:We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices e xcept only to ascertain if the appointee possesses the required qualifications . The determination of who among aspirants with the minimum statutory qualifications should be

preferred belongs to the appointing authority and not the Civil Service Commission . It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice.:Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee—taking into account the totality of his qualifications, including those abstract qualities that define his personality—is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws.

Luego v CSC, G.R. No. L-69137, Aug. 5, 1986Facts: Petitioner Luego was appointed as administrative officer. His appointment was described as permanent but the CSC approved it as temporary subject to final action taken in the protest filed by Felicia Tuozo and another employee. Later, after the hearings, the CSC found that private respondent Tuozo was better qualified that the petitioner for the position and directed that Tuozo be appointed to the position of administrative officer.

Issue: Is the CSC authorize dot disapprove a permanent appointment on the ground that another person is better qualified than the appoint and, on the basis of this finding, order his replacement by the latter?

Held: 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 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. :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 a ssure compliance with Civil Service Laws. :Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.:It is 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. :It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments.:However, a full reading of the provision, 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. 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 appointmen t . 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.

E. Assumption and term of officeBorromeo v Mariano, 41 Phil. 322

Facts: Andres Borromeo was appointed and commissioned as judge of the 24th judicial district. He duly qualified and took possession of the office. Later, he was appointed judge of the 21st judicial district and Fermin Mariano was appointed judge of the 24th district. Judge borromeo has since the latter date consistently refused to accept appointment to the 21st judicial district.

Issue: WON a judge may be appointed or designated to another district without his consent? -- No

Held: Judges of First Instance are appointed by the Governor-General with the consent of the Philippine Senate to serve until they reach the age of 65 years. (Adm. Code, secs. 65, 66, 148.) One Judge of First Instance is commissioned for each judicial district, except the night. (Sec. 154.) The oath of office of the judge is "filed with the clerk of the court to which the affiant pertains and shall be entered upon its records." (Sec. 128.) Judges of First Instance may only be detailed by the Secretary of Justice to temporary duty in a district other than their own for the purpose of trying land registration cases and for vacation duty. (Sec. 155.) The concluding portion of section 155 of the Administrative Code, to which particular attention is addressed by the Attorney-General, is, "but nothing herein shall be construed to prevent a judge of first instance of one district from being appointed to be judge of another district." A Judge of First Instance can be removed from office by the Governor-General only if in the judgment of the Supreme Court sufficient cause shall exist involving serious misconduct or inefficiency in office. (Sec. 173.):To arrive at a correct decision with reference to the proviso before us, let it first be recalled that the law is emphatic in its specification that, save when judges of first instance are detailed to try land registration cases or when assigned to vacation duty, "no judge of first instance shall be required to do duty in any other district than that for which he is commissioned.":The effect to be given to the word "appoint" is corroborated by the principles of the law of public officers. Appointment and qualification to office are separate and distinct things. Appointment is the sole act of those vested with the power to make it. Acceptance is the sole act of the appointee. Persons may be chosen for office at pleasure; there is no power in these Islands which can compel a man to accept the office. (22 R. C. L. 423.) If, therefore, anyone could refuse appointment as a judge of first instance to a particular district, when once appointment to this district is accepted, he has exactly the same right to refuse an appointment to another district. No other person could be placed in the position of this Judge of First Instance since another rule of public officers is, that an appointment may not be made to an office which is not vacant. (29 Cyc., 1373.) In our judgment, the language of the proviso to section 155 of the Administrative Code, interpreted with reference to the law of public officers, does not empower the Governor-General to force upon the judge of one district an appointment to another district against his will, thereby removing him from his district.:.. But, certainly, if a judge could be transferred from one district of the Philippine Islands to another, without his consent, it would require no great amount of imagination to conceive how this power could be used to discipline the judge or as an indirect means of removal. A judge who had, by a decision, incurred the ill-will of an attorney or official, could, by the insistence of the disgruntled party, be removed from one district, demoted, and transferred to another district, at possibly a loss of salary, all without the consent of the judicial

officer. The only recourse of the judicial officer who should desire to maintain his self-respect, would be to vacate the office and leave the service. Unless we wish to nullify the impeachment section of the Administrative Code, and thus possibly to encroach upon the jurisdiction conferred upon the Supreme Court by the Organic Law, section 155 must be interpreted so as to make it consistent therewith.:…As an instance of the latter class of decisions, in Province of Tarlac vs. Gale, supra, Mr. Justice Moreland, speaking for the court, said: ..It is clear . . . that each department is bound to preserve its own existence if it live up to the duty imposed upon it as one of the coordinate branches of the government. Whatever a person or entity ought to do or must do in law, it has the power to do. This being true, the judiciary has the power to maintain its existence; and whatever is reasonably necessary to that end, courts may do or order done. But the right to live, if that is all there is of it, is a very small matter. The mere right to breathe does not satisfy ambition or produce results. Therefore, courts have not only the power to maintain their life, but they have also the power to make that existence effective for the purpose for which the judiciary was created. They can, by appropriate means, do all things necessary to preserve and maintain every quality needful to make the judiciary an effective institution of Government. Courts have, therefore, inherent power to preserve their integrity, maintain their dignity and to insure effectiveness in the administration of justice. This is clear; for, if the judiciary may be deprived of any one of its essential attributes, or if any one of them may be seriously weakened by the act of any person or official, then independence disappears and subordination begins. The power to interfere is the power to control, and the power to control is the power to abrogate. The sovereign power has given life to the judiciary and nothing less than the sovereign power can take it away or render it useless. The power to withhold from the courts anything really essential for the administration of justice is the power to control and ultimately to destroy the efficiency of the judiciary. Courts cannot, under their duty to their creator, the sovereign power, permit themselves to be subordinated to any person or official to which their creator did not itself subordinate them . :For the reasons given, we are of opinion that the reasonable force of the language used in the proviso to section 155 of the Administrative Code taken in connection with the whole of the Judiciary Law, and the accepted canons of interpretation, and the principles of the law of public officers, leave from for no other construction than that a Judge of First Instance may be made a judge of another district only with his consent.:It is our holding that the plaintiff Andres Borromeo is lawfully entitled to the possession of the office of Judge of the Court of First Instance of the Twenty-Fourth Judicial District. It is our judgment that the defendant Fermin Mariano shall be ousted from the office of Judge of the Twenty-fourth Judicial District, and the plaintiff placed in possession of the same.

Doctrine of holdoverAbas Kida v Senate, G.R. No. 196271, October 18, 2011

Facts: RA 6734 the law creating ARMM was passed. RA 9333 was subsequently passed by congress to reset the ARMM regional to the 2nd monday of august 2005 and on the same date every 3 years thereafter. Comelec begun preparations for these elections and had accepted coc’s but in 2011, RA 10153 was enacted resetting the ARMM elections to may 2013 to coincide with the regular national and local elections of the country. The law was impugned on the ground because of its unconstitutionality. Petitioners challenged the grant to the president of the power to appoint OICs to undertake the functions of the elective ARMM officials util the officials elected under the may 2013 regular election shall have assumed office.

Held: To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMM’s regular elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of the national and local elections (fixed by RA No. 7166 to be held in May 2013).During the oral arguments, the Court identified the three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized elections assume office; (2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized elections assume office.:We rule out the first option – holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term – as an option that Congress could have chosen because a holdover

violates Section 8, Article X of the Constitution.  This provision states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms.:Since elective ARMM officials are local officials , they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover . As this Court put in Osmeña v. COMELEC: It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time:In American Jurisprudence it has been stated as follows: “It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution.”:Independently of the Osmeña ruling, the primacy of the Constitution as the supreme law of the land dictates that where the Constitution has itself made a determination or given its mandate, then the matters so determined or mandated should be respected until the Constitution itself is changed by amendment or repeal through the applicable constitutional process. A necessary corollary is that none of the three branches of government can deviate from the constitutional mandate except only as the Constitution itself may allow. If at all, Congress may only pass legislation filing in details to fully operationalize the constitutional command or to implement it by legislation if it is non-self-executing; this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and called for.:In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress.:If it will be claimed that the holdover period is effectively another term mandated by Congress, the net result is for Congress to create a new term and to appoint the occupant for the new term. This view – like the extension of the elective term – is constitutionally infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents. Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President. Hence, holdover – whichever way it is viewed – is a constitutionally infirm option that Congress could not have undertaken.:Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected.:Even assuming that holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the past, we have to remember that the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.:Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary legislative powers; this Court cannot pass upon questions of wisdom, justice or expediency of legislation, except where an attendant unconstitutionality or grave abuse of discretion results.

F. Code of Conduct: R.A. 6713Carabeo v CA, G.R. No. 178000 and 178003, Dec. 4, 2009

Facts: Private respondents filed a complaint with the office of the ombudsman against Carabeo, OIC of the office of treasurer. It was alleged that his net worth drastically increased and that he had numerous properties that he failed to disclose in his Statements of assets and liabilities which was in violation of section 8a of ra 6713. Private respondents prayed that the ombudsman issue an order filing the appropriate criminal informations against Carabeo, to institute the appropriate cases against him for same violations, for dishonesty and grave misconduct. This was approved. Meanwhile, Carabeo was detailed to the DOF’s bureau of local government finance at the DOF central office. He claimed that his detail violated the TRO earlier

issued which enjoined the enforcement of his preventive suspension. Caribou appealed to this but the CA dismissed it and held that the preventive suspension decreed by ombudsman is not meant to be a penalty but a means taken to insure the proper and impartial conduct of an investigation, which did not require prior notice and hearing.

Issue: WON Ca committed grave abuse of discretion amounting to lack or excess in jurisdiction in not considering the complaint against Carabeo a violation of section 10 of RA 6713 which entitles Carabeo to be informed beforehand and to take necessary corrective action

Held: Carabeo claims that the complaint against him involves a violation of Section 10, RA 6713, or the Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be informed beforehand of his omission and to take the necessary corrective action.:Section 10 of RA 6713 provides: Section 10.  Review of Compliance Procedure. - (a)  The designated Committees of both Houses of the Congress shall establish procedures for the review of statements to determine whether said statements which have been submitted on time, are complete, and are in proper form.  In the event a determination is made that a statement is not so filed, the appropriate Committee shall so inform the reporting individual and direct him to take the necessary corrective action.:While Section 10 of RA 6713 indeed allows for corrective measures, Carabeo is charged not only with violation of RA 6713, but also with violation of the Revised Penal Code, RA 1379, and RA 3019, as amended, specifically Sections 7 and 8 thereof, which read:In Ombudsman v. Valeroso, the Court explained fully the significance of these provisions, to wit: Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of preventing said evil and is aimed particularly at curtailing and minimizing, the opportunities for official corruption and maintaining a standard of honesty in the public service. “Unexplained” matter normally results from “non-disclosure” or concealment of vital facts. SALN, which all public officials and employees are mandated to file, are the means to achieve the policy of accountability of all public officers and employees in  the  government. By   the SALN, the public are able to monitor movement in the fortune of a public official; it is a valid check and balance mechanism to verify undisclosed properties and wealth.:Significantly, Carabeo failed to show any requirement under RA 3019 that prior notice of the non-completion of the SALN and its correction precede the filing of charges for violation of its provisions . Neither are these measures needed for the charges of dishonesty and grave misconduct, which Carabeo presently faces.:Based on the foregoing, the Court of Appeals did not commit grave abuse of discretion in rendering the assailed decision.

Part IIPOWERS, DUTIES, PRIVILEGES & PROHIBITIONS

A. Source of power

Article II, Section 1, 1987 ConstitutionThe Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

B. Scope of authority

Doctrine of necessary implicationLo Cham v Ocampo, 77 Phil. 636, 638 (1946)

Facts:Sec.168 of the Revised Administrative Code, as amended, provides that the Secretary of Justice may

appoint any lawyer, either a subordinate from his office or a competent person not in public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of his duties , and with the same authority as might be exercised by the Attorney General or the Solicitor General.

Pursuant to such, Lo Cham, a doctor of medicine and lawyer, acting Chief, Medico-Legal Section in the DOJ, was temporarily detailed to assist the City Fiscal of Manila, with the same powers and functions of an Assistant Fiscal, by the Acting Secretary of Justice. He signed and filed the information in three cases at bar after conducting preliminary investigation. The defendant's attorney filed a motion to quash due to his lack of authority to sign information.

Issue:Whether or not Lo Cham has the power to sign the information.

Ruling:Yes.It will be noted that the law uses general terms. It is a general rule of statutory interpretation that

provisions should not be given a restricted meaning where no restriction is indicated. Just as the express enumeration of persons, objects, situations, etc., is construed to exclude those not mentioned, according to a well-known maxim, so no distinction should be made where none appears to be intended. This is not an arbitrary rule but one founded on logic. Was it the purpose of the legislature to confine the work to be performed by the lawyer appointed to assist the fiscal to certain duties in the fiscal's office and deny him others? If it was, the law does not say so, and one would be at loss to know what duties were conferred and what were not. It is fair to presume that if the legislature had wanted to forbid the lawyer appointed to assist the fiscal, to sign informations, make investigations and conduct prosecutions, it would have said so or indicated its intention by clear implication. We need to be reminded that of all the functions of the fiscal, those referred to are the most important and outstanding and the ones in which the fiscal usually needs aid.

The signing of complaints, making investigations, and conducting prosecutions are not sacrosanct that only Presidential appointees or one expressly empowered by law may be permitted to assume such functions. A lawyer invested with the same authority as an Attorney General or Solicitor General is presumed to be competent to be entrusted with any of the duties devolving on a prosecuting attorney, due to the higher standard of training and experience required.

Note:Scope of duties of a public office:a. Those essential to the accomplishment of the main purpose for which the office was created; orb. Those, although incidental, or collateral are germane to and serve to promote the accomplishment of the principal purpose.

The subject functions are inherent in the power to assist a prosecuting attorney, for these are engrained in the office/designation itself. The powers of the Solicitor General bestowed on the appointee should be deemed to be in addition to the powers inherent to the appointment.

C. Kinds of authority

DiscretionaryMinisterial

Aprueba v Ganzon, G.R. No. 138570, Oct. 10, 2000Facts:

Aprueba and Modoc filed a petition for mandamus against the City Mayor of Iloilo, alleging that they are owners and operators of a cafeteria when respondent city mayor ordered his policemen to close it for alleged violation of city ordinance as they did on same date despite their protest; that when petitioner Aprueba saw respondent, he was informed that the store could only be reopened if petitioners paid all their back accounts; that after paying the back accounts, respondent still refused to allow reopening of the store and instead chided him for working against respondent’s candidacy in the last elections; that respondent told

petitioner Aprueba to comply with health rules and regulations which he did; that respondent told him later that the store space would be used as an extension (bodega) of the city health office; that petitioners have no delinquency in rentals and have complied with health rules and regulations and it is the ministerial duty of respondent to allow them to operate the cafeteria and refreshment parlor business; that in refusing them to reopen their business, respondent unlawfully excluded them from the use and enjoyment of a right they are entitled to, or unlawfully neglected performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; that respondent’s acts were motivated by, personal and selfish considerations and intended to persecute, harass, and ridicule his political enemies; that petitioners as a result suffered moral damages and incurred attorney’s fees in the sum of P5,500.00.

Petitioners prayed that a preliminary mandatory injunction issue commanding respondent to order the reopening of the cafeteria and allow petitioners to operate their business, and pay P5,500.00 as damages and attorney’s fees and P5.00 daily from October 1, 1960 until reopening of the cafeteria.

Issue:Whether or not the CFI correctly dismissed petitioner’s petition for mandamus.

Ruling:Yes. In refusing to grant mandamus, the trial court premised its action on the fact that petitioner’s

occupancy of stall 17-C in question in Iloilo City market “is but a privilege which the respondent mayor may or may not grant, but not a duty enjoined upon him by law, by reason of his position”. Note also that the refusal of respondent to allow reopening of the cafeteria is predicated on the provision of Section 10 (m) of the City Charter which states:          SEC. 10. General duties and powers of the Mayor.—The mayor shall have immediate control over the executive functions of the several departments of the City, and shall have the following general duties and powers:x x x           x x x           x x x          (m) To grant and refuse municipal licenses and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinance are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried out, or for any other good reason of general interest.

Moreover, the privilege of petitioners to obtain a renewal of the permit (after the implied lease contract expired) rested on the sound discretion of respondent and refusal on his part to grant the continuance of the privilege (especially after petitioner Aprueba’s alleged violation of city ordinance by allowing co-petitioner Modoc to operate business in stall 17-C) cannot be the subject of an action for mandamus. In a long line of decisions, this Court had held that mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes on him the right or duty to exercise judgment in reference to any matter in which he is required to act. The privilege of operating a market stall under license is always subject to the police power of the city government and may be refused or granted for reasons of public policy and sound public administration. Such privilege is not absolute but revocable under an implied lease contract subject to the general welfare clause.

First Phil. Holdings Corp. v SandiganbayanG.R. No. 88345, February 1, 1996

Facts:PCGG prays for the return, reconveyance, accounting and restitution -with damages - of certain funds and

properties which were allegedly acquired by private respondents through “abuse of right and power and through unjust enrichment”. The herein petition states that part of these funds and properties are some 6,299,177 sequestered shares of stock in the Philippine Commercial International Bank (PCIBank) which were allegedly acquired by the respondent spouses, as beneficial owners, in violation of the Anti-Graft and Corrupt Practices Act, as amended, and therefore subject to forfeiture in favor of the Republic for being

“unexplained wealth.” Said shares were allegedly purchased from petitioner by respondent Romualdez using respondents Equities and Narciso as “his dummy buyers”, with “no or negligible ‘cash out’”.

Petitioner filed its own “Motion for Leave to Intervene and to Admit Complaint in Intervention” in said Civil Case No. 0035 pending before respondent Court, alleging that the PCIBank shares were “obtained x x x by means of fraud and acts contrary to law, morals, good customs and public policy, as well as in breach of fiduciary duty” and thus their acquisition thru a deed of “Sale of Stocks and Escrow Agreement” dated May 24, 1984 is either voidable or void or unenforceable on any of said grounds. Petitioner also alleged that the purchase price of P47,243,827.50 was extravagantly low as the book value at the time of sale was P104,755,313.51 at P16.63 per share.  To pay this P47 million, Equities borrowed the exact same amount from SOLOIL, alleged to be another Romualdez front, which in turn borrowed the same, using the facilities of PCIBank itself.  Petitioner therefore asked in its proposed Complaint in Intervention that said shares be returned to it.

Respondent court denied petitioner’s petition.Narciso manifested that he “has no personal claim or interest to any and all (of) the shares of PCIBank. He

affirmed that respondent Romualdez is the owner of Trans Middle East (Phils.) Equities, Inc., which in turn owns the disputed shares. 

The Solicitor General, in his Comment[10] submitted on August 8, 1989, stated that petitioner did not have a “legal interest” to intervene because “(t)he judgment would merely render defendant Benjamin Romualdez and his corresponding co-defendants personally obligated to either return or reconvey said shares of stock to public respondent, Republic of the Philippines or to pay to it the full value thereof with interest.   The execution or implementation of the (said) judgment would not bar petitioner’s cause of action, if any, to declare void the ‘Sale of Stock and Escrow-Agreement’ dated May 24, 1984.”

Issue:Whether or not the writ of mandamus may be issued to compel respondent Court to grant the Motion

for Intervention when it should be found out that petitioner has legal interest in the case and respondent Court has jurisdiction over the same.

Ruling:Yes.In resolving to deny petitioner’s motion for intervention, respondent Court abused its discretion

because, clearly, the question of ownership of the shares under sequestration is within its jurisdiction, being an incident arising from or in connection with the case under its exclusive and original jurisdiction.  Indeed, as held in the above-mentioned cases, the respondent Court has jurisdiction to entertain both complaints and answers in intervention over properties under sequestration by the PCGG.  With the denial of its intervention, petitioner is deprived of a remedy in law to recover its property alleged to have been taken illegally from it.

As provided under Rule 12, Sec. 2(b), intervention shall be allowed “in the exercise of discretion” by a court.     Ordinarily, mandamus will not prosper to compel a discretionary act.     But where there is “gross abuse of discretion, manifest injustice or palpable excess of authority” equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue.

These exceptions were recognized by this Court in Kant Kwong vs. PCGG, et al.,[20] as follows:“Although, as averred by respondents, the recognized rule is that, in the performance of an official duty

or act involving discretion, the corresponding official can only be directed by Mandamus to act but not to act one way or the other, ‘yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice or palpable excess of authority.’”

In Antiquera vs. Baluyot, et al.,[21] such exceptions were allowed, “because the discretion must be exercised under the law, and not contrary to law.”

D. Rights and privileges

Right to office

Right to compensation

Article VI, Section 10, 1987 ConstitutionThe salaries of Senators and Members of the House of Representatives shall be determined by

law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase.

Article VII, Section 6The President shall have an official residence. The salaries of the President and Vice-President

shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other source.Article VIII, Section 10

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts, shall be fixed by law. During their continuance in office, their salary shall not be decreased.

Article IX-B, Section 8No elective or appointive public officer or employee shall receive additional, double, or

indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

CSC v Richard Cruz, G.R. No. 187858, Aug. 9, 2011Facts:    The respondent, Storekeeper A of the City of Malolos Water District (CMWD), was charged with grave misconduct and dishonesty by CMWD General Manager (GM) Nicasio Reyes.  He allegedly uttered a false, malicious and damaging statement (Masasamang tao ang mga BOD at General Manager) against GM Reyes and the rest of the CMWD Board of Directors (Board); four of the respondent’s subordinates allegedly witnessed the utterance. The dishonesty charge, in turn, stemmed from the respondent’s act of claiming overtime pay despite his failure to log in and out in the computerized daily time record for three working days.           The respondent denied the charges against him. On the charge of grave misconduct, he stressed that three of the four witnesses already retracted their statements against him. On the charge of dishonesty, he asserted that he never failed to log in and log out. He reasoned that the lack of record was caused by technical computer problems. The respondent submitted documents showing that he rendered overtime work on the three days that the CMWD questioned.            GM Reyes preventively suspended the respondent for 15 days. Before the expiration of his preventive suspension, however, GM Reyes, with the approval of the CMWD Board, found the respondent guilty of grave misconduct and dishonesty, and dismissed him from the service.

CSC: absolved respondent of two charges (it did not find factual basis to support the charges of grave misconduct and dishonesty) and ordered his reinstatement.

In ruling that the respondent was not liable for grave misconduct, the CSC held: Cruz was adjudged guilty of grave misconduct for his alleged utterance of such maligning statements,

“MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER”. However, such utterance, even if it were true, does not constitute a flagrant disregard of rule or was actuated by corrupt motive. To the mind of the Commission, it was a mere expression of disgust over the management style of the GM and the Board of Directors, especially when due notice is taken of the fact that the latter officials were charged with the Ombudsman for various anomalous transactions. 

In ruling that the charge of dishonesty had no factual basis, the CSC declared:Based on the records of the case, the Commission is not swayed that the failure of Cruz to record his

attendance on April 21 and 22, 2007 and May 5, 2007, while claiming overtime pay therefor, amounts to

dishonesty. Cruz duly submitted evidence showing his actual rendition of work on those days. The residents of the place where he worked attested to his presence thereat on the days in question.

The CSC, however, found the respondent liable for violation of reasonable office rules for his failure to log in and log out. It imposed on him the penalty of reprimand but did not order the payment of back salaries.          The CMWD and the respondent separately filed motions for reconsideration against the CSC ruling.  CMWD questioned the CSC’s findings and the respondent’s reinstatement. The respondent, for his part, claimed that he is entitled to back salaries in light of his exoneration from the charges of grave misconduct and dishonesty. The CSC denied both motions.

CA: Applying the ruling in Bangalisan v. Hon. CA,[8] the CA found merit in the respondent’s appeal and awarded him back salaries from the time he was dismissed up to his actual reinstatement. The CA reasoned out that CSC Resolution No. 080305 totally exonerated the respondent from the charges laid against him. The CA considered the charge of dishonesty successfully refuted as the respondent showed that he performed overtime service.  The CA thereby rejected the CSC’s contention that the charge of dishonesty had been merely downgraded to a lesser offense; the CA saw the finding in CSC Resolution No. 080305 to be for an offense (failing to properly record his attendance) entirely different from the dishonesty charge because their factual bases are different. Thus, to the CA, CSC Resolution No. 080305 did not wholly restore the respondent’s rights as an exonerated employee as it failed to order the payment of his back salaries.

Issue:Whether or not respondent Cruz is entitled to back salaries after CSC ordered his reinstatement to

his former position, consonant with its ruling that the latter is only guilty of violating office rules and regulations.

Ruling:Yes, but for the period of his preventive suspension pending investigation, the respondent is not

entitled to any back salaries.The issue of entitlement to back salaries, for the period of suspension pending appeal, of a

government employee who had been dismissed but was subsequently exonerated is settled in our jurisdiction. The Court’s starting point for this outcome is the “no work-no pay” principle – public officials are only entitled to compensation if they render service.  We have excepted from this general principle and awarded back salaries even for unworked days to illegally dismissed or unjustly suspended employees based on the constitutional provision that “no officer or employee in the civil service shall be removed or suspended except for cause provided by law”; To deny these employees their back salaries amounts to unwarranted punishment after they have been exonerated from the charge that led to their dismissal or suspension.

The present legal basis for an award of back salaries is Section 47, Book V of the Administrative Code of 1987.

Section 47. Disciplinary Jurisdiction. – x x x.(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension

or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. (italics ours)   This provision, however, on its face, does not support a claim for back salaries since it does not expressly provide for back salaries during this period; our established rulings hold that back salaries may not be awarded for the period of preventive suspension as the law itself authorizes its imposition so that its legality is beyond question.  To resolve the seeming conflict, the Court crafted two conditions before an employee may be entitled to back salaries: a)   the employee must be found innocent of the charges  and b) his suspension must be unjustified. The reasoning behind these conditions runs this way: although an employee is considered under preventive suspension during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period is unjustified and must be compensated.

The Court held that a government employee, who was suspended from work pending final action on his administrative case, is not entitled to back salaries where he was ultimately removed due to the valid

appointment of his successor.  No exoneration or reinstatement, of course, was directly involved in this case; thus, the question of back salaries after exoneration and reinstatement did not directly arise.   The Court, however, made the general statement that:

As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent. Hence, the requirement that, to entitle to payment of salary during suspension, there must be either reinstatement of the suspended person or exoneration if death should render reinstatement impossible.

We find that the CA was correct in awarding the respondent his back salaries during the period he was suspended from work, following his dismissal until his reinstatement to his former position. The records show that the charges of grave misconduct and dishonesty against him were not substantiated. As the CSC found, there was no corrupt motive showing malice on the part of the respondent in making the complained utterance. Likewise, the CSC found that the charge of dishonesty was well refuted by the respondent’s evidence showing that he rendered overtime work on the days in question.           We fully respect the factual findings of the CSC especially since the CA affirmed these factual findings. However, on the legal issue of the respondent’s entitlement to back salaries, we are fully in accord with the CA’s conclusion that the two conditions to justify the award of back salaries exist in the present case.

 The first condition was met since the offense which the respondent was found guilty of (violation of reasonable rules and regulations) stemmed from an act (failure to log in and log out) different from the act of dishonesty (claiming overtime pay despite his failure to render overtime work) that he was charged with.  

 The second condition was met as the respondent’s committed offense merits neither dismissal from the service nor suspension (for more than one month), but only reprimand. 

In sum, the respondent is entitled to back salaries from the time he was dismissed by the CMWD until his reinstatement to his former position - i.e., for the period of his preventive suspension pending appeal. For the period of his preventive suspension pending investigation, the respondent is not entitled to any back salaries per our ruling in Hon. Gloria: it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.”

Presidential immunity from suitDoctrine of official immunity

Farolan v Solmac Mktg., G.R. No. 83589, 3-13-91Facts:

Ramon Farolan, Acting Commissioner of Customs and petitioner Guillermo Parayno, Acting Chief, Customs Intelligence and Investigation Division were sued in their official capacities as officers in the government. They were held personally liable for damages for detaining the goods of Solmac which as irregular and devoid of legal basis, hence, not done in the regular performance of their official duties.

Private respondent Solmac Marketing Corporation is a corporation organized and existing under the laws of the Philippines. It was the assignee, transferee, and owner of an importation of Clojus Recycling Plastic Products of 202,204 kilograms of what is technically known as polypropylene film, valued at US$69,250.05.

The subject importation, consisting of seventeen (17) containers, arrived in December, 1981. Upon application for entry, the Bureau of Customs asked respondent SOLMAC for its authority from any government agency to import the goods described in the bill of lading. Respondent SOLMAC presented a Board of Investment (BOI) authority for polypropylene film scrap. However, upon examination of the shipment by the National Institute of Science and Technology (NIST), it turned out that the fibers of the importation were oriented in such a way that the materials were stronger than OPP film scrap. 6 In other words, the Clojus shipment was not OPP film scrap, as declared by the assignee respondent SOLMAC to the

Bureau of Customs and BOI Governor Lilia R. Bautista, but oriented polypropylene the importation of which is restricted, if not prohibited, under Letter of Instructions (LOI) No. 658-B.

Considering that the shipment was different from what had been authorized by the BOI and by law, petitioners Parayno and Farolan withheld the release of the subject importation.

Parayno wrote the BOI asking for the latter's advice on whether or not the subject importation may be released. The BOI agreed that the subject imports may be released but that holes may be drilled on them by the Bureau of Customs prior to their release. Counsel for respondent Solmac asked for the release of the importation but such was not released, however, on the ground that holes had to be drilled on them first.

Counsel of the respondent prayed for the unconditional release of the subject importation. It also prayed for actual damages, exemplary damages, and attorney's fees.

RTC ordered the release of the importations immediately without drilling of holes, subject only to the normal requirements of the customs.

Solmac appealed decision to the CA for ordering of damages. CA, in turn, ordered petitioners, solidarily and in their personal capacity, to award damages to respondent Solmac.

Issue:Whether or not petitioners acted in good faith in in not immediately releasing the importations and

are liable to pay respondent Solmac damages.

Ruling:No.We defined good faith as "refer[ring] to a state of the mind which is manifested by the acts of the

individual concerned. It consists of the honest intention to abstain from taking an unconscionable and unscrupulous advantage of another. It is the opposite of fraud, and its absence should be established by convincing evidence."

We had reviewed the evidence on record carefully and we did not see any clear and convincing proof showing the alleged bad faith of the petitioners. On the contrary, the record is replete with evidence bolstering the petitioners' claim of good faith. First, there was the report of the National Institute of Science and Technology (NIST) dated January 25, 1982 that, contrary to what the respondent claimed, the subject importation was not OPP film scraps but oriented polypropylene, a plastic product of stronger material, whose importation to the Philippines was restricted, if not prohibited, under the LOI.

It was on the strength of this finding that the petitioners withheld the release of the subject importation for being contrary to law. Second, the petitioners testified that, on many occasions, the Bureau of Customs sought the advice of the BOI on whether the subject importation might be released. 

It can be seen from all the foregoing that even the highest officers (Chairman Ongpin, Vice-Chairman Tordesillas, and Governor Zayco) of the BOI themselves were not in agreement as to what proper course to take on the subject of the various importations of Oriented Polypropylene (OPP) and Polypropylene (PP) withheld by the Bureau of Customs. The conflicting recommendations of the BOI on this score prompted the petitioners to seek final clarification from the former with regard to its policy on these importations. This resulted in the inevitable delay in the release of the Clojus shipment, one of the several of such importations. The confusion over the disposition of this particular importation obviates bad faith. Thus the trial court's finding that the petitioners acted in good faith in not immediately releasing the Clojus shipment pending a definitive policy of the BOI on this matter is correct. It is supported by substantial evidence on record, independent of the presumption of good faith, which as stated earlier, was not successfully rebutted.

When a public officer takes his oath of office, he binds himself to perform the duties of his office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of his duties, he is to use that prudence, caution, and attention which careful men use in the management of their affairs. In the case at bar, prudence dictated that petitioners first obtain from the BOI the latter's definite guidelines regarding the disposition of the various importations of oriented polypropylene (OPP) and polypropylene (PP) then being withheld at the Bureau of Customs. These cellophane/film products were competing with locally manufactured polypropylene and oriented polypropylene as raw materials which were then already sufficient to meet local demands, hence, their importation was restricted, if not prohibited under LOI 658-B. Consequently, the petitioners cannot be said to have acted in bad faith in not immediately releasing the import goods without first obtaining the necessary

clarificatory guidelines from the BOI. As public officers, the petitioners had the duty to see to it that the law they were tasked to implement, i.e., LOI 658-B, was faithfully complied with.

But even granting that the petitioners committed a mistake in withholding the release of the subject importation because indeed it was composed of OPP film scraps, 20 contrary to the evidence submitted by the National Institute of Science and Technology that the same was pure oriented OPP, nonetheless, it is the duty of the Court to see to it that public officers are not hampered in the performance of their duties or in making decisions for fear of personal liability for damages due to honest mistake. Whatever damage they may have caused as a result of such an erroneous interpretation, if any at all, is in the nature of a damnum absque injuria.   Mistakes concededly committed by public officers are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith.   21   After all, "even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith. 

In the same vein, the presumption, disputable though it may be, that an official duty has been regularly performed applies in favor of the petitioners. Omnia praesumuntur rite et solemniter esse acta. (All things are presumed to be correctly and solemnly done.) It was private respondent's burden to overcome this juris tantum presumption. We are not persuaded that it has been able to do so.

Tuzon v CA, G.R. No. 90107, August 21, 1992Facts:

In March 14, 1977, the Sangguniang Bayan of Camalaniugan, Cagayan, unanimously adopted Resolution No. 9, wherein the municipality has embarked in the construction of Sports and Nutrition Center, and as a fund-raising scheme, to help finance the construction of the project, it solicits 1% donation from the thresher operators who will apply for a permit to thresh within the jurisdiction of this municipality, of all the palay threshed by them to help finance the continuation of the construction of the Sports and Nutrition Center Building. To implement the resolution, petitioner Lope C. Mapagu, then incumbent municipal treasurer, prepared an agreement document for signature of all thresher/owner/operators applying for a mayor’s permit.

Soon thereafter, private respondent Saturnino T. Jurado sent his agent to the municipal treasurer’s office to pay the license fee of P285.00 for thresher operators. Mapagu refused to accept the payment and required him to first secure a mayor’s permit. For his part, Mayor Domingo Tuzon, the herein other petitioner, said that Jurado should first comply with Resolution No. 9 and sign the agreement before the permit could be issued. Jurado ignored the requirement. Instead, he sent the P285.00 license fee by postal money order to the office of the municipal treasurer who, however, returned the said amount. The reason given was the failure of the respondent to comply with Resolution No. 9.

On April 4, 1977, Jurado filed with the Court of First Instance of Cagayan a special civil action for mandamus with actual and moral damages to compel the issuance of the mayor’s permit and license. On May 31, 1977, he filed another petition with the same court. This time for declaratory judgment against the said resolution (and the implementing agreement) for being illegal either as a donation or as a tax measure. Named defendants were the same respondents and all the members of the Sangguniang Bayan of Camalaniugan.

RTC: resolution is valid and NO malice on the part of the mayor and treasurer.CA: resolution is valid but attended by malice on the part of the mayor and treasurer, and awarded

damages to Jurado.

Issues:1. Whether or not the refusal on the part of the petitioners in granting the license is unjustified and

constitutes bad faith.2. Whether or not the petitioners are liable in damages.

Ruling:1. No.

The private respondent anchors his claim for damages on Art. 27 of the NCC.1 According to Phil. Match Co. Ltd. v. City of Cebu, the provision presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. In the present case, it has not even been alleged that the Mayor Tuzon’s refusal to act on the private respondent’s application was an attempt to compel him to resort to bribery to obtain approval of his application. It cannot be said either that the mayor and the municipal treasurer were motivated by personal spite or were grossly negligent in refusing to issue the permit and license to Jurado.

It is no less significant that no evidence has been offered to show that the petitioners singled out the private respondent for persecution. Neither does it appear that the petitioners stood to gain personally from refusing to issue to Jurado the mayor’s permit and license he needed. The petitioners were not Jurado’s business competitors nor has it been established that they intended to favor his competitors. On the contrary, the record discloses that the resolution was uniformly applied to all the threshers in the municipality without discrimination or preference.

The private respondent complains that as a result of the petitioners’ acts, he was prevented from operating his business all this time and earning substantial profit therefrom, as he had in previous years. But as the petitioners correctly observed, he could have taken the prudent course of signing the agreement under protest and later challenging it in court to relieve him of the obligation to "donate." Pendente lite, he could have continued to operate his threshing business and thus avoided the lucro cesante that he now says was the consequence of the petitioners’ wrongful act. He could have opted for the less obstinate but still dissentient action, without loss of face, or principle, or profit.

2. No.The private respondent anchors his claim for damages on Article 27 of the New Civil Code, which

reads:Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or

neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

It has been remarked that one purpose of this article is to end the "bribery system, where the public official, for some flimsy excuse, delays or refuses the performance of his duty until he gets some kind of pabagsak." 7 Official inaction may also be due to plain indolence or a cynical indifference to the responsibilities of public service. According to Phil. Match Co. Ltd. v. City of Cebu, 8 the provision presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. In any event, the erring public functionary is justly punishable under this article for whatever loss or damage the complainant has sustained.

In the present case, it has not even been alleged that the Mayor Tuzon’s refusal to act on the private respondent’s application was an attempt to compel him to resort to bribery to obtain approval of his application. It cannot be said either that the mayor and the municipal treasurer were motivated by personal spite or were grossly negligent in refusing to issue the permit and license to Jurado.

It is no less significant that no evidence has been offered to show that the petitioners singled out the private respondent for persecution. Neither does it appear that the petitioners stood to gain personally from refusing to issue to Jurado the mayor’s permit and license he needed. The petitioners were not Jurado’s business competitors nor has it been established that they intended to favor his competitors. On the contrary, the record discloses that the resolution was uniformly applied to all the threshers in the municipality without discrimination or preference.

The Court is convinced that the petitioners acted within the scope of their authority and in consonance with their honest interpretation of the resolution in question. We agree that it was not for them to rule on its validity. In the absence of a judicial decision declaring it invalid, its legality would have to be presumed (in fact, both the trial court and the appellate court said there was nothing wrong with it). As executive officials of the municipality, they had the duty to enforce it as long as it had not been repealed by the Sangguniang Bayan or annulled by the courts.

1 . Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

. . . As a rule, a public officer, whether judicial, quasi-judicial or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in line of his official duty.

. . . It has been held that an erroneous interpretation of an ordinance does not constitute nor does it amount to bad faith that would entitle an aggrieved party to an award for damages. (Philippine Match Co. Ltd. v. City of Cebu, 81 SCRA 99).

Preference in promotion

Leave of absence

Retirement pay

E. Prohibitions

Sections 2(3), 8, Article IX-B, 1987 Constitution

Section 2 (3). No officer or employee of the civil service shall be removed or suspended except for cause provided by law.

Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

Part IIILiabilities of Public Officers

A. Presumption of good faith & regularity

Sections 38 and 39, Administrative Code

SECTION 38. Liability of Superior Officers.—(1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.

(2) Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law.

(3) A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.

SECTION 39. Liability of Subordinate Officers. —No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of his superiors.

Farolan v Solmac Mktg., G.R. No. 83589, March 13, 1991Facts:

Ramon Farolan, Acting Commissioner of Customs and petitioner Guillermo Parayno, Acting Chief, Customs Intelligence and Investigation Division were sued in their official capacities as officers in the government. They were held personally liable for damages for detaining the goods of Solmac which as irregular and devoid of legal basis, hence, not done in the regular performance of their official duties.

Private respondent Solmac Marketing Corporation is a corporation organized and existing under the laws of the Philippines. It was the assignee, transferee, and owner of an importation of Clojus Recycling Plastic Products of 202,204 kilograms of what is technically known as polypropylene film, valued at US$69,250.05.

The subject importation, consisting of seventeen (17) containers, arrived in December, 1981. Upon application for entry, the Bureau of Customs asked respondent SOLMAC for its authority from any government agency to import the goods described in the bill of lading. Respondent SOLMAC presented a Board of Investment (BOI) authority for polypropylene film scrap. However, upon examination of the shipment by the National Institute of Science and Technology (NIST), it turned out that the fibers of the importation were oriented in such a way that the materials were stronger than OPP film scrap. 6 In other words, the Clojus shipment was not OPP film scrap, as declared by the assignee respondent SOLMAC to the Bureau of Customs and BOI Governor Lilia R. Bautista, but oriented polypropylene the importation of which is restricted, if not prohibited, under Letter of Instructions (LOI) No. 658-B.

Considering that the shipment was different from what had been authorized by the BOI and by law, petitioners Parayno and Farolan withheld the release of the subject importation.

Parayno wrote the BOI asking for the latter's advice on whether or not the subject importation may be released. The BOI agreed that the subject imports may be released but that holes may be drilled on them by the Bureau of Customs prior to their release. Counsel for respondent Solmac asked for the release of the importation but such was not released, however, on the ground that holes had to be drilled on them first.

Counsel of the respondent prayed for the unconditional release of the subject importation. It also prayed for actual damages, exemplary damages, and attorney's fees.

RTC ordered the release of the importations immediately without drilling of holes, subject only to the normal requirements of the customs.

Solmac appealed decision to the CA for ordering of damages. CA, in turn, ordered petitioners, solidarily and in their personal capacity, to award damages to respondent Solmac.

Issue:Whether or not petitioners acted in good faith in in not immediately releasing the importations and

are liable to pay respondent Solmac damages.

Ruling:No.W e defined good faith as "refer[ring] to a state of the mind which is manifested by the acts of the

individual concerned. It consists of the honest intention to abstain from taking an unconscionable and unscrupulous advantage of another. It is the opposite of fraud, and its absence should be established by convincing evidence."

We had reviewed the evidence on record carefully and we did not see any clear and convincing proof showing the alleged bad faith of the petitioners. On the contrary, the record is replete with evidence bolstering the petitioners' claim of good faith. First, there was the report of the National Institute of Science and Technology (NIST) dated January 25, 1982 that, contrary to what the respondent claimed, the subject importation was not OPP film scraps but oriented polypropylene, a plastic product of stronger material, whose importation to the Philippines was restricted, if not prohibited, under the LOI.

It was on the strength of this finding that the petitioners withheld the release of the subject importation for being contrary to law. Second, the petitioners testified that, on many occasions, the Bureau of Customs sought the advice of the BOI on whether the subject importation might be released. 

It can be seen from all the foregoing that even the highest officers (Chairman Ongpin, Vice-Chairman Tordesillas, and Governor Zayco) of the BOI themselves were not in agreement as to what proper course to take on the subject of the various importations of Oriented Polypropylene (OPP) and Polypropylene (PP)

withheld by the Bureau of Customs. The conflicting recommendations of the BOI on this score prompted the petitioners to seek final clarification from the former with regard to its policy on these importations. This resulted in the inevitable delay in the release of the Clojus shipment, one of the several of such importations. The confusion over the disposition of this particular importation obviates bad faith. Thus the trial court's finding that the petitioners acted in good faith in not immediately releasing the Clojus shipment pending a definitive policy of the BOI on this matter is correct. It is supported by substantial evidence on record, independent of the presumption of good faith, which as stated earlier, was not successfully rebutted.

When a public officer takes his oath of office, he binds himself to perform the duties of his office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of his duties, he is to use that prudence, caution, and attention which careful men use in the management of their affairs. In the case at bar, prudence dictated that petitioners first obtain from the BOI the latter's definite guidelines regarding the disposition of the various importations of oriented polypropylene (OPP) and polypropylene (PP) then being withheld at the Bureau of Customs. These cellophane/film products were competing with locally manufactured polypropylene and oriented polypropylene as raw materials which were then already sufficient to meet local demands, hence, their importation was restricted, if not prohibited under LOI 658-B. Consequently, the petitioners cannot be said to have acted in bad faith in not immediately releasing the import goods without first obtaining the necessary clarificatory guidelines from the BOI. As public officers, the petitioners had the duty to see to it that the law they were tasked to implement, i.e., LOI 658-B, was faithfully complied with.

But even granting that the petitioners committed a mistake in withholding the release of the subject importation because indeed it was composed of OPP film scraps, 20 contrary to the evidence submitted by the National Institute of Science and Technology that the same was pure oriented OPP, nonetheless, it is the duty of the Court to see to it that public officers are not hampered in the performance of their duties or in making decisions for fear of personal liability for damages due to honest mistake. Whatever damage they may have caused as a result of such an erroneous interpretation, if any at all, is in the nature of a damnum absque injuria.   Mistakes concededly committed by public officers are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith.   21   After all, "even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith. 

In the same vein, the presumption, disputable though it may be, that an official duty has been regularly performed applies in favor of the petitioners. Omnia praesumuntur rite et solemniter esse acta. (All things are presumed to be correctly and solemnly done.) It was private respondent's burden to overcome this juris tantum presumption. We are not persuaded that it has been able to do so.

Tuzon v CA, G.R. No. 90107, August 21, 1992Facts:

In March 14, 1977, the Sangguniang Bayan of Camalaniugan, Cagayan, unanimously adopted Resolution No. 9, wherein the municipality has embarked in the construction of Sports and Nutrition Center, and as a fund-raising scheme, to help finance the construction of the project, it solicits 1% donation from the thresher operators who will apply for a permit to thresh within the jurisdiction of this municipality, of all the palay threshed by them to help finance the continuation of the construction of the Sports and Nutrition Center Building. To implement the resolution, petitioner Lope C. Mapagu, then incumbent municipal treasurer, prepared an agreement document for signature of all thresher/owner/operators applying for a mayor’s permit.

Soon thereafter, private respondent Saturnino T. Jurado sent his agent to the municipal treasurer’s office to pay the license fee of P285.00 for thresher operators. Mapagu refused to accept the payment and required him to first secure a mayor’s permit. For his part, Mayor Domingo Tuzon, the herein other petitioner, said that Jurado should first comply with Resolution No. 9 and sign the agreement before the permit could be issued. Jurado ignored the requirement. Instead, he sent the P285.00 license fee by postal money order to the office of the municipal treasurer who, however, returned the said amount. The reason given was the failure of the respondent to comply with Resolution No. 9.

On April 4, 1977, Jurado filed with the Court of First Instance of Cagayan a special civil action for mandamus with actual and moral damages to compel the issuance of the mayor’s permit and license. On May 31, 1977, he filed another petition with the same court. This time for declaratory judgment against the said

resolution (and the implementing agreement) for being illegal either as a donation or as a tax measure. Named defendants were the same respondents and all the members of the Sangguniang Bayan of Camalaniugan.

RTC: resolution is valid and NO malice on the part of the mayor and treasurer.CA: resolution is valid but attended by malice on the part of the mayor and treasurer, and awarded

damages to Jurado.

Issues:1. Whether or not the refusal on the part of the petitioners in granting the license is unjustified and

constitutes bad faith.2. Whether or not the petitioners are liable in damages.

Ruling:1. No.

The private respondent anchors his claim for damages on Art. 27 of the NCC.2 According to Phil. Match Co. Ltd. v. City of Cebu, the provision presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. In the present case, it has not even been alleged that the Mayor Tuzon’s refusal to act on the private respondent’s application was an attempt to compel him to resort to bribery to obtain approval of his application. It cannot be said either that the mayor and the municipal treasurer were motivated by personal spite or were grossly negligent in refusing to issue the permit and license to Jurado.

It is no less significant that no evidence has been offered to show that the petitioners singled out the private respondent for persecution. Neither does it appear that the petitioners stood to gain personally from refusing to issue to Jurado the mayor’s permit and license he needed. The petitioners were not Jurado’s business competitors nor has it been established that they intended to favor his competitors. On the contrary, the record discloses that the resolution was uniformly applied to all the threshers in the municipality without discrimination or preference.

The private respondent complains that as a result of the petitioners’ acts, he was prevented from operating his business all this time and earning substantial profit therefrom, as he had in previous years. But as the petitioners correctly observed, he could have taken the prudent course of signing the agreement under protest and later challenging it in court to relieve him of the obligation to "donate." Pendente lite, he could have continued to operate his threshing business and thus avoided the lucro cesante that he now says was the consequence of the petitioners’ wrongful act. He could have opted for the less obstinate but still dissentient action, without loss of face, or principle, or profit.

Phil. Racing Club v Bonifacio, G.R. No. L-11910, 9-31-60Facts:

In a race held at the Sta. Ana Hippodrome belonging to the Philippine Racing Club, the competing horses went off to a faulty start. When the barrier was lifted, one of the horses turned around and blocked the three horses at its left thus enabling the three horses on the right side to run ahead and gain a good lead. The official starter signaled the stewards indicating that the race should be cancelled. However, it was left unheeded and the steward told the starter to shut up.

When the winning horses as well as the corresponding dividends were announced, the betting public showed its disapproval of the result. A commotion resulted which reached the knowledge of the Commission on Races, which includes respondent Bonifacio. The commission held the stewards to do an on spot investigation and finding that indeed there was a faulty start, the former announced to the public of the cancellation of the race. While the investigation was on going, the holders of the winning tickets were able to cash them while those of the losing were to be refunded.

2 . Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

Plaintiff PRC commenced this action alleging that the Commission acted without or in excess of jurisdiction when they ordered the cancellation of the race and the return of the bets of those losing ticket, said acts having caused PRC moral damages for having placed their reputation under public suspicion. Commission countered that they did so merely pursuant to their official duties as members of the Commission on Races and after conducting an on the spot investigation at which plaintiffs and its employees were heard, and hence they cannot be held liable for damages.

CFI find for plaintiffs. CA reversed the decision finding that the race started in a very faulty manner and for that reason the Board of Stewards which had the authority to suspend or cancel the race under the rules and regulations on the matter should have decreed its cancellation as was so insistently recommended by the official starter.

Issue: Whether or not the Commissioners should be held liable.

Ruling:No.It would, therefore, appear that in every horse race the rule requires that there be a board of judges

who should determine the result of the race and whose decisions are final and unappealable. In addition, the rule requires that there be a board of stewards which among others, is given the power to "annul any race before the horses reach their destination if in their opinion there is a bad start or any other incident takes place that makes such action necessary" (as translated). Hence, there are two groups of officials who act in every race whose functions are different from the other: the board of judges and the board of stewards. The judges determine who the winners are, their decision being final and irrevocable; the stewards, on the other hand, are given the power to annul any race if in their opinion there is a bad start or some good reasons exist justifying it. And over these officials we have the Commission on Races which is charged with the duty to supervise their action and the performance of their duties in connection with the races.

We are, therefore, of the opinion that the action taken by the Commission on Races cancelling or annulling the race held on July 23, 1950 for the reason that there was a faulty start on the part of some horses was in excess of the authority granted to it by law. It is true, as already stated, that the Commission on Races has the supervision over all horse races and over all race officials and employees having connection with their operations, but such power of supervision cannot be extended to functions which belong to other officials as delimited by law. As defined by this Court, supervision only means overseeing or the power or authority to see that subordinate officers perform their duties. It is different from control which includes the power to alter, nullify or set aside what a subordinate officer may do in the performance of his duties, as well as to substitute the judgment of the superior for that of his subordinate (Mondano vs. Silvosa, 97 Phil., 143; 51 Off. Gaz., [6] 2884). This power of control has been withheld from the Commission.

However, considering that respondents have acted in their official capacity in the honest belief that they had such power as in fact they acted on the matter only after an on the spot investigation, we hold that they cannot be held liable for damages. In this sense, the decision of the Court of Appeals should be affirmed.

Acts in Line of Duty or under Color of Authority. — As a rule, a public officer, whether judicial, quasi-judicial, or executive, is not personally liable to one injured as a consequence of an act performed within the scope of his official authority, and in the line of his official duty. In order that acts may be done within the scope of official authority, it is not necessary that they be prescribed by statute, or even that they be specifically directed or requested by a superior officer, but it is sufficient if they are done by an officer in relation to matters committed by law to his control or supervision, or that they have more or less connection with such matters, or that they have more or less connection with such matters, or that they are governed by a lawful requirement of the department under whose authority the officer is acting. Under this principle, state building commissioners who, in obedience to a statute, discharge one who has been employed to construct a state building, take possession of the work, and place it in the hands of another contractor, are not liable to the former contractor in damages, since in so doing they are merely acting in the line of their duty. An officer is not personally responsible for the necessary and unavoidable destruction of goods stored in buildings, when such buildings were destroyed by him

in the lawful performance of a public duty imposed on him by a valid and constitutional statute.x x x           x x x           x x x

Error or Mistake in Exercise of Authority. — Where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is actually given immunity from liability to persons who may be injured as the result of an erroneous or mistaken decision, however erroneous judgment may be, provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption.

B. Kinds of liability

NonfeasanceMisfeasanceMalfeasanceTest to determine if offense was committed in relation

to the officeCrisostomo v Sandiganbayan, G.R. No. 152389, 4-14-05

Facts:

On 19 October 1993, Crisostomo, a member of the Philippine National Police and a jail guard at the Solano Municipal Jail was charged with the murder of Renato Suba (“Renato”), a detention prisoner at the Solano Municipal Jail. The Information alleged that Crisostomo conspired with his co-accused, Dominador C. dela Cruz (“dela Cruz”), Efren M. Perez (“Perez”), Raki T. Anggo (“Anggo”), Randy A. Lumabo (“Lumabo”), Rolando M. Norberte (“Norberte”) and Mario Calingayan (“Calingayan”), all inmates at the Solano Municipal Jail, in murdering Renato. The Information reads in full:

That on or about the 14th day of February 1989, in Solano, Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Pat. Edgar T. Crisostomo, a public officer, being then a member of the Philippine National Police (PNP) stationed at Solano Police Station and a jailer thereat, taking advantage of his public position and thus committing the offense in relation to his office, conspiring, confederating and conniving with his co-accused who are inmates of the Solano Municipal Jail, namely: Dominador C. dela Cruz, Efren M. Perez, Raki T. Anggo, Randy A. Lumabo, Rolando M. Norberte and Mario B. Calingayan, with intent to kill and with treachery, taking advantage of superior strength and with the aid of armed men or employing means to weaken the defense or of means or persons to insure or afford impunity, did then and there wil[l]fully, unlawfully and feloniously attack and assault one Renato Suba, a detention prisoner, with the use of rough-surfaced instruments, including fist blows, inflicting upon him serious injuries causing his internal organs to be badly damaged such as his liver, messentery and stomach resulting to the death of said Renato Suba to the damage and prejudice of the heirs of the latter.

Prosecution:

On 13 February 1989, Renato was detained at the municipal jail in Solano, Nueva Vizcaya for allegedly hitting the head of one Diosdado Lacangan.  The following day, 14 February 1989, at 5:00 p.m., Renato’s brother Rizalino Suba (“Rizalino”) visited him at the municipal jail.  Renato asked Rizalino to bring him blanket, toothbrush, clothes and food.  Rizalino left the municipal jail that day at 5:20 p.m. At that time, Renato was in good physical condition and did not complain of any bodily pain.  Renato was 26 years old, single, and was employed in a logging concession.

At 9:00 p.m., a barangay councilman informed Rizalino that policemen assigned at the Solano municipal jail wanted Rizalino to go to the municipal building.  Rizalino arrived at the municipal jail at 9:10 p.m. and saw his brother Renato already dead on the floor outside his cell.

Renato was detained alone in the third cell, one of the four cells at the municipal jail.  Although each of the four cells had an iron grill door equipped with a padlock, the doors were usually left open.  The keys to the

padlocks were with the jail guard.  There was a common front door, which no one could enter but the jail guard.  Only one jail guard at a time was assigned at the municipal jail.  Crisostomo was the one on duty at the time of the death of Renato. At no time was Renato brought out of the cell during his detention on 13 February 1989 until his death in the evening of the following day.  Crisostomo’s position in relation to the cell where the victim was killed was such that Crisostomo as jail guard could have heard if not seen what was going on inside the cell at the time that Renato was killed.

There are unexplained discrepancies in the list of detainees/prisoners and police blotter.  The list of detainees/prisoners dated 20 February 1989 shows that there were eight prisoners on 14 February 1989, including Renato, but after Renato’s death, only six were turned over by Crisostomo to the incoming jail guard.  On 15 February 1989, nine “prisoners/detainees” were on the list, including Renato who was already dead.  However, the police blotter shows that only six prisoners were under custody.  The persons who were detained with Renato at the time of his death were released without being investigated by the Solano police.

Renato did not commit suicide.  His body bore extensive injuries that could have been inflicted by several persons.  The exhumation and autopsy reports ruled out suicide as the cause of Renato’s death.  The deafening silence of the inmates and the jail guard, Crisostomo, point to a conspiracy.  Crisostomo’s guilt is made apparent when he jumped bail during trial.

Defense:

The presentation of evidence for Crisostomo’s defense was deemed waived for his failure to appear at the scheduled hearings despite notice.

Calingayan, Crisostomo’s co-accused, was the sole witness for the defense. Calingayan was only 16 years old at the time that he was charged with the murder of Renato. Calingayan denied killing Renato.

Calingayan was detained at the Solano Municipal Jail on 12 February 1989 because his brother-in-law, Patrolman Feliciano Leal (“Leal”), also a jail guard, had him arrested for pawning some of the belongings of Leal.  Leal told Calingayan that he had him detained for safekeeping to teach him a lesson.

Renato was detained on 13 February 1989.  Calingayan learned that Renato was detained for hitting somebody’s head.

There were four cells at the municipal jail.  Calingayan was detained with five other inmates in the second cell.  Renato was detained alone in the third cell.  The four cells had their own separate doors with padlocks but each door was always open.  It was up to the inmates to close the doors.  A common door leading to the four cells was always padlocked and no one could enter the door without the jail guard’s permission.  The jail guard had the keys to the cells and the common door. Only one jail guard was assigned to guard the cells.  Crisostomo was the jail guard on duty at the time that Renato died.

Calingayan was in jail for three days or until 15 February 1989. Calingayan last saw Renato alive between 5 to 6 p.m. of 14 February 1989.  Just as Calingayan was about to take a bath after 6 p.m., he saw Renato lying down.   One of the inmates asked for Renato’s food because he did not like to eat his food.  After taking a bath, Calingayan went back to his cell and played cards with his three cellmates whose names he could not recall.  Calingayan did not leave his cell during the four hours that he played cards but one of his cellmates went out.

Calingayan discovered Renato’s body on 14 February 1989 between 9:00 p.m. to 10:00 p.m.  Calingayan went to the fourth cell, where the comfort room was located, to urinate.  While urinating, Calingayan saw at the corner of the cell a shadow beside him.  A bulb at the alley lighted the cell.  Calingayan ran away and called the other inmates, telling them that the person in cell number four was in the dark place.  The other inmates ran towards the place and shouted “si kuwan, si kuwan.”  Crisostomo was in the room at the left side from where Calingayan was detained, about fifteen meters away.  Upon hearing the shouts, Crisostomo opened the main door.  Once inside the cell, Crisostomo instructed the inmates to bring down Renato’s body that was hanging from the iron bars of the window of the cell.  At that time, Calingayan did not notice what was used in

hanging Renato but when the body was brought outside, Calingayan saw that Renato had hanged himself with a thin blanket.

The four cells are not similar in area and size.  The cell where Renato stayed is the smallest.  The cells are separated by a partition made of hollow blocks as high as the ceiling.  The four cells are in one line so that if you are in one cell you cannot see what is happening in the other cells.  The inmates could go to any of the four cells in the prison but they could not get out of the main door without the permission of the jail guard.  The comfort room is in the fourth cell, which is also open so that the inmates would not anymore ask for the key from the office of the jail guard.

The blanket that Renato used to hang himself was tied to the iron grills of the window of the cell.   The window is small, only about two feet by one and one-half feet with eight iron bars. The window is nine feet from the floor.

No other person was admitted on 14 February 1989. Calingayan does not have a grudge against Renato.   He could not recall if there was any untoward incident between Renato and the other inmates. The Solano police investigated Calingayan the next morning.

SB: The Sandiganbayan found sufficient circumstantial evidence to convict Crisostomo and Calingayan of murder. 

Issue:

Whether or not Crisostomo committed the crime in relation to his office, thus giving Sandiganbayan the jurisdiction to try his case.

Ruling:

Yes.

Crisostomo insists that there is no direct relation between the commission of murder and Crisostomo’s public office.  Crisostomo further contends that the mere allegation in the Information that the offense was committed in relation to Crisostomo’s office is not sufficient to confer jurisdiction on the Sandiganbayan.  Such allegation without the specific factual averments is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of Crisostomo’s official duties.

Since the crime was committed on 14 February 1989, the applicable provision of law is Section 4 of PD 1606, as amended by Presidential Decree No. 1861 (“PD 1861”), which took effect on 23 March 1983.   The amended provision reads:

Sec. 4.  Jurisdiction.  The Sandiganbayan shall exercise:(a)                  Exclusive original jurisdiction in all cases involving:

(2)                    Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.

Crisostomo was charged with murder, the penalty for which is reclusion temporal in its maximum period to death, a penalty within the jurisdiction of the Sandiganbayan.

Crisostomo would have the Court believe that being a jail guard is a mere incidental circumstance that bears no close intimacy with the commission of murder. Crisostomo’s theory would have been tenable if the murdered victim was not a prisoner under his custody as a jail guard. The function of a jail guard is to insure the safe custody and proper confinement of persons detained in the jail. In this case, the Information alleges that the victim was a detention prisoner when Crisostomo, the jail guard, conspired with the inmates to kill him.

Indeed, murder and homicide will never be the main function of any public office.  No public office will ever be a constituent element of murder. When then would murder or homicide, committed by a public officer, fall within the exclusive and original jurisdiction of the Sandiganbayan? People v. Montejo[7] provides the answer.  The Court explained that a public officer commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper or irregular manner, his official functions and he cannot commit the offense without holding his public office. In such a case, there is an intimate connection between the offense and the office of the accused. If the information alleges the close connection between the offense charged and the office of the accused, the case falls within the jurisdiction of the Sandiganbayan. People v. Montejo is an exception that Sanchez v. Demetriou recognized.

Thus, the jurisdiction of the Sandiganbayan over this case will stand or fall on this test: Does the Information allege a close or intimate connection between the offense charged and Crisostomo’s public office?

The Information passes the test.

The Information alleged that Crisostomo “a public officer, being then a member of the Philippine National Police (PNP) stationed at Solano Police Station and a jailer thereat, taking advantage of his public position and thus committing the offense in relation to his office” conspired, confederated and connived with his co-accused who are inmates of the Solano Municipal Jail to kill Renato, “a detention prisoner.”

If the victim were not a prisoner, the Information would have to state particularly the intimate relationship between the offense charged and the accused public officer’s office to vest jurisdiction on the Sandiganbayan.  This is not the case here.  The law restrains the liberty of a prisoner and puts him under the custody and watchful eyes of his jail guard. Again, the two-fold duties of a jail guard are to insure the safe custody and proper confinement of persons detained in the jail.  The law restricts access to a prisoner.  However, because of the very nature of the work of a jail guard, he has access to the prisoner.  Crisostomo, as the jail guard, could not have conspired with the inmates to murder the detention prisoner in his cell if Crisostomo were not a “jailer.”

The Information accused Crisostomo of murdering a detention prisoner, a crime that collides directly with Crisostomo’s office as a jail guard who has the duty to insure the safe custody of the prisoner.   Crisostomo’s purported act of killing a detention prisoner, while irregular and contrary to Crisostomo’s duties, was committed while he was performing his official functions. The Information sufficiently apprised Crisostomo that he stood accused of committing the crime in relation to his office, a case that is cognizable by the Sandiganbayan, not the Regional Trial Court.  There was no prejudice to Crisostomo’s substantive rights.

Esteban v Sandiganbayan, G.R. No. 146646-69, 3-11-05Facts:

Ana May (more like, Chena Mae) was a casual employee at the City Gov’t of Cabanatuan. She was detailed with the MTC upon the incessant request of its presiding judge Petitioner Esteban (JORAM ni, sure jud ko). She applied for bookbinder but petitioner did not act on her application. Consequently, she went to the petitioner’s chambers to follow up her application. Esteban told her, “Ano naman ang magiging kapalit ng pagpirma ko rito? Mula ngayon, girlfriend na kita. Araw-araw papasok ka dito sa opisina ko, at araw-araw, isang halik.” (mao na na!!! Joram gyud ni.)

Petitioner nonetheless recommended her for appointment.  Thereafter, he suddenly kissed her on her left cheek.  She was shocked and left the chambers, swearing never to return or talk to petitioner.

One morning, the court interpreter told Ana May that the Judge Esteban wanted to see her in his chambers regarding the payroll.  As a subordinate, she complied. Once inside, petitioner asked her if she has been receiving her salary as a bookbinder.  When she answered in the affirmative, he said, “Matagal na pala eh, bakit hindi ka pumapasok dito sa kuwarto ko? Di ba sabi ko say iyo, girlfriend na kita?” 

Again, Ana May protested to his proposal, saying he is like a father to her and that he is a married man with two sons.

Petitioner suddenly rose from his seat, grabbed her and said, “Hindi pwede yan, mahal kita.” (“I can’t allow that for I love you.”)  He embraced her, kissing her all over her face and touching her right breast.

Ana May freed herself and dashed out of the chambers crying.  She threw the payroll on the table of her co-employee, Elizabeth Q. Manubay.  The latter sensed something was wrong and accompanied Ana May to the restroom.  There she told Elizabeth what happened.

On March 9 and July 1, 1998, two Informations for violation of R.A. 7877 (the Anti-Sexual Harassment Law of 1995) were filed against petitioner with the Sandiganbayan criminal charges.

Petitioner contends that the alleged acts of lasciviousness were not committed in relation to his office as a judge; and the fact that he is a public official is not an essential element of the crimes charged.

Issue: Whether or not the Sandiganbayan has jurisdiction over the criminal cases or petitioner judge

committed the offense in relation to his office.

Ruling:Yes.Section 4 of Presidential Decree No. 1606, as amended by Republic Act No. 8249,[10] reads in part:

SEC. 4.  Jurisdiction. – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:x x xb. Other offenses or felonies whether simple or complexed with other crime committed by the public officials and employees mentioned in subsection a of this section  in relation to their office.

In People v. Montejo, we ruled that an offense is said to have been committed in relation to the office if the offense is “intimately connected” with the office of the offender and perpetrated while he was in the performance of his official functions.  This intimate relation between the offense charged and the discharge of official duties must be alleged in the Information. This is in accordance with the rule that the factor that characterizes the charge is the actual recital of the facts in the complaint or information. Hence, where the information is wanting in specific factual averments to show the intimate relationship/connection between the offense charged and the discharge of official functions, the Sandiganbayan has no jurisdiction over the case.

The jurisdiction of a court is determined by the allegations in the complaint or information. The Amended Informations in Criminal Cases Nos. 24703-04 contain allegations showing that the acts of lasciviousness were committed by petitioner in relation to his official function.

C. Three-fold liability rule

San Luis v CA, G.R. No. 80160, June 26, 1989Facts:

Pvt respondent is the quarry superintendent in Laguna. He denounced graft and corrupt practices by the employees of the Provincial Govt.

Petitioner Governor transferred pct respondent Berroya to the office of the Provincial Engr through an Order. Respondent challenged the transfer which the CSC ruled as violative of RA 22600 and the same ordered respondent’s reversion to his original position. Governor did not follow the order of CSC but instead suspended respondent for alleged gross discourtesy, inefficiency and insubordination. CSC reiterated to revert respondent to his original position and declared the suspension as illegal. Governor appealed to the Office of the President from the CSC rulings alluded to. OP reversed the CSC rulings. Respondent moved for recon, the OP reversed its first decision and held the suspension improper.

In the interim, governor issued an Order dismissing respondent for alleged neglect of duty, frequent unauthorized absences, conduct prejudicial to the best interest of duty and abandonment of office. CSC declared the dismissal unjustified.

Issue: Whether or not Petitioner governor is criminally, civilly, and administratively liable.

Ruling:

Where, as in this case, the provincial governor obstinately refused to reinstate the petitioner, in defiance of the orders of the Office of the President and the Ministry of Local Government and in palpable disregard of the opinion of the Civil Service Commission, the appellate court's finding of bad faith cannot be faulted and accordingly, will not be disturbed by this Tribunal Enciso v. Remo, G.R. No. L-23670, September 30, 1969, 29 SCRA 580.] This is in line with our previous ruling in Remo v. Palacio [107 Phil. 803 (1960)] that

xxx xxx xxx

(i)t having been clearly shown by evidence, that respondent, Deogracias Remo, in his capacity as Mayor of Goa, refused to reinstate the petitioner to his former position in the police force of Goa, despite the orders of Malacanang to do so (Exhs. G and I), and inspite of the opinion of the Secretary of Finance (Exh. H), the respondent Mayor of Goa, willfully acted in bad faith, and therefore, he, as Mayor of Goa, should pay for damages caused to the petitioner, Angel Enciso. [At pp. 807-808.]

It is well-settled that when a public officer goes beyond the scope of his duty, particularly when acting tortiously, he is not entitled to protection on account of his office, but is liable for his acts like any private individual [Palma v. Graciano, 99 Phil. 72 (1956)].

Thus, in Mendoza v. De Leon [33 Phil. 508 (1916)], it was held:

Nor are officers or agents of the Government charged with the performance of governmental duties which are in their nature legislative or quasi-judicial liable for the consequences of their official acts, unless it be shown that they act wilfully and maliciously and with the express purpose of inflicting injury upon the plaintiff [at 513; Emphasis supplied].

Accordingly, applying the principle that a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith [Tabuena v. Court of Appeals, G.R. No. L-16290, October 31, 1961, 3 SCRA 413; Correa v. Court of First Instance of Bulacan, G. R. No. L-46096, July 30, 1979, 92 SCRA 312], the Court holds that petitioner Felicisimo T. San Luis, the Provincial Governor of Laguna who has been sued both in his official and private capacities, must be held personally liable to Berroya for the consequences of his illegal and wrongful acts.

In this regard, the Court sustains the appellate court's finding that petitioner San Luis must be held liable to Berroya for moral damages since justice demands that the latter be recompensed for the mental suffering and hardship he went through in order to vindicate his right, apart from the back salaries legally due him [Rama v. Court of Appeals,  supra at p. 5061]. The appellate court was clearly warranted in awarding moral damages in favor of respondent Berroya because of the obstinacy of petitioner Governor who arbitrarily and without legal justification refused Berroya's reinstatement in defiance of directives of the administrative agencies with final authority on the matter. We agree with the appellate court that the sum of P 50,000.00 for moral damages is a reasonable award considering the mental anguish and serious anxiety suffered by Berroya as a result of the wrongful acts of petitioner Governor in refusing to reinstate him.

Finally, as correctly adjudged by respondent court, petitioner San Luis must likewise answer to Berroya for attorney's fees plus costs and expenses of suit, which have been fixed by said court at P 20,000.00, in view of

the wrongful refusal of petitioner provincial governor to afford Berroya his plainly valid and just claim for reinstatement and back salaries.

Chavez v Sandiganbayan, G.R. No. 91391, Jan. 24, 1991Facts:

Republic of the Philippines, through the Presidential Commission on Good Government (PCGG) with the assistance of Solicitor General Francisco Chavez filed with the respondent Sandiganbayan a complaint docketed as Civil Case No. 0033 against Eduardo Cojuangco, Jr. and Juan Ponce Enrile, among others, for reconveyance, reversion and accounting, restitution and damages.

Respondent Enrile then requested leave from the Sandiganbayan to implead the petitioner and the PCGG officials as party defendants for lodging this alleged "harassment suit" against him.

All the PCGG officials filed their answer to the counterclaims invoking their immunity from suits as provided in Section 4 of Executive Order No. 1. Instead of filing an answer, the petitioner comes to this Court assailing the resolutions as rendered with grave abuse of discretion amounting to lack of jurisdiction.

It may be noted that the private respondent Enrile did not limit himself to general averments of malice, recklessness, and bad faith but filed specific charges that then PCGG Chairman Jovito Salonga had already cleared the respondent and yet, knowing the allegations to be false, the petitioner still filed the complaint. 

On the other hand, the petitioner submits that no counter-claim can be filed against him in his capacity as Solicitor General since he is only acting as counsel for the Republic. 

Thus, the petitioner argues that since he is simply the lawyer in the case, exercising his duty under the law to assist the Government in the filing and prosecution of all cases pursuant to Section 1, Executive Order No. 14, he cannot be sued in a counterclaim in the same case.

Issue: Whether or not petitioner, in his capacity as Sol-GEn is immune from suit.

Ruling:Yes.Presiding Justice Francis Garchitorena correctly observed that there is no general immunity arising

solely from occupying a public office.The general rule is that public officials can be held personally accountable for acts claimed to have

been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. 

A number of cases decided by the Court where the municipal mayor alone was held liable for back salaries of, or damages to dismissed municipal employees, to the exclusion of the municipality, are not applicable in this instance. In Salcedo v. Court of Appeals (81 SCRA 408 [1978]) for instance, the municipal mayor was held liable for the back salaries of the Chief of Police he had dismissed, not only because the dismissal was arbitrary but also because the mayor refused to reinstate him in defiance of an order of the Commissioner of Civil Service to reinstate.

In Nemenzo v. Sabillano (25 SCRA 1 [1968]), the municipal mayor was held personally liable for dismissing a police corporal who possessed the necessary civil service eligibility, the dismissal being done without justifiable cause and without any administrative investigation.

In Rama v. Court of Appeals (G.R. Nos. L-44484, L-44842, L-44591, L-44894, March 16 1987), the governor, vice-governor, members of the Sangguniang Panlalawigan, provincial auditor, provincial treasurer and provincial engineer were ordered to pay jointly and severally in their individual and personal capacity damages to some 200 employees of the province of Cebu who were eased out from their positions because of their party affiliations. (Laganapan v. Asedillo, 154 SCRA 377 [1987])

Moreover, the petitioner's argument that the immunity proviso under Section 4(a) of Executive Order No. 1 also extends to him is not well-taken. A mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped.

Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. (id., at page 586)

Where the petitioner exceeds his authority as Solicitor General acts in bad faith, or, as contended by the private respondent, "maliciously conspir(es) with the PCGG commissioners in persecuting respondent

Enrile by filing against him an evidently baseless suit in derogation of the latter's constitutional rights and liberties" (Rollo, p. 417), there can be no question that a complaint for damages may be filed against him. High position in government does not confer a license to persecute or recklessly injure another. The actions governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may be taken against public officers or private citizens alike. The issue is not the right of respondent Enrile to file an action for damages. He has the right. The issue is whether or not that action must be filed as a compulsory counterclaim in the case filed against him.

Domingo v Rayala, G.R. No. 155831, February 18, 2008Facts:On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at the NLRC, filed a Complaint for sexual harassment against Rayala before Secretary Bienvenido Laguesma of the Department of Labor and Employment (DOLE). The committee constituted found Rayala guilty of the offense charged. Secretary Laguesma submitted a copy of the Committee Report and Recommendation to the OP, but with the recommendation that the penalty should be suspension for six (6) months and one (1) day, in accordance with AO 250.On May 8, 2000, the OP issued AO 119, disagreeing with the recommendation that respondent be meted only the penalty of suspension for six (6) months and one (1) day considering the circumstances of the case because of the nature of the position of Reyala as occupying the highest position in the NLRC, being its Chairman. Long digest by Ernani Tadili.It was ordered that Rayala be dismissed from service for being found guilty of grave offense of disgraceful and immoral conduct.Rayala filed Motions for Reconsideration until the case was finally referred to the Court of Appeals for appropriate action. The CA found Reyala guilty and imposed the penalty of suspension of service for the maximum period of one (1) year.Domingo filed a Petition for Review before the SC.Rayala likewise filed a Petition for Review19 with this Court essentially arguing that he is not guilty of any act of sexual harassment.The Republic then filed its own Petition for Review.20

Rayala asserts that Domingo has failed to allege and establish any sexual favor, demand, or request from petitioner in exchange for her continued employment or for her promotion. According to Rayala, the acts imputed to him are without malice or ulterior motive. It was merely Domingo’s perception of malice in his alleged acts – a "product of her own imagination"25 – that led her to file the sexual harassment complaint.

He argues that sexual harassment is considered an offense against a particular person, not against society as a whole.

Issue:Whether or not Rayala is liable for sexual harassment .

Ruling:Yes. CA and OP were unanimous in holding that RAYALA is guilty of sexual harassment. They only differ in

the appropriate imposable penalty.That Rayala committed the acts complained of – and was guilty of sexual harassment – is, therefore,

the common factual finding of not just one, but three independent bodies: the Committee, the OP and the CA. It should be remembered that when supported by substantial evidence, factual findings made by quasi-judicial and administrative bodies are accorded great respect and even finality by the courts.39 The principle, therefore, dictates that such findings should bind us.40

He insists, however, that these acts do not constitute sexual harassment, because Domingo did not allege in her complaint that there was a demand, request, or requirement of a sexual favor as a condition for her continued employment or for her promotion to a higher position.41 Rayala urges us to apply to his case our ruling in Aquino v. Acosta.42

We find respondent’s insistence unconvincing.

Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others.43 This rule applies with full force to sexual harassment.The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof defines work-related sexual harassment in this wise:

Sec. 3. Work, Education or Training-related Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by an employer, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.

(a) In a work-related or employment environment, sexual harassment is committed when:(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or

continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;

(2) The above acts would impair the employee’s rights or privileges under existing labor laws; or(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

This section, in relation to Section 7 on penalties, defines the criminal aspect of the unlawful act of sexual harassment. The same section, in relation to Section 6, authorizes the institution of an independent civil action for damages and other affirmative relief.Section 4, also in relation to Section 3, governs the procedure for administrative cases, viz.:

Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. – It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall:

Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctions therefor.

Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.

The said rules and regulations issued pursuant to this section (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.

(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with other officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of the alleged cases constituting sexual harassment.

The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned.

The CA, thus, correctly ruled that Rayala’s culpability is not to be determined solely on the basis of Section 3, RA 7877, because he is charged with the administrative offense, not the criminal infraction, of sexual harassment.44 It should be enough that the CA, along with the Investigating Committee and the Office of the President, found substantial evidence to support the administrative charge.

Yet, even if we were to test Rayala’s acts strictly by the standards set in Section 3, RA 7877, he would still be administratively liable. It is true that this provision calls for a "demand, request or requirement of a sexual favor." But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. Holding and squeezing Domingo’s shoulders, running his fingers across her neck and tickling her ear, having inappropriate conversations with her, giving her money allegedly for school expenses with a promise of future privileges, and making statements with unmistakable sexual overtones – all these acts of Rayala resound with deafening clarity the unspoken request for a sexual favor.

Likewise, contrary to Rayala’s claim, it is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the

respondent’s acts result in creating an intimidating, hostile or offensive environment for the employee.45 That the acts of Rayala generated an intimidating and hostile environment for Domingo is clearly shown by the common factual finding of the Investigating Committee, the OP and the CA that Domingo reported the matter to an officemate and, after the last incident, filed for a leave of absence and requested transfer to another unit.

Office of the President. v Cataquiz, G.R. No. 183445,September 14, 2011

Facts: Respondent Cataquiz, then General Manager of the Laguna Lake Development Authority, was being

ousted in a petition by a majority of the members of the Management Committee and the rank and file employees of the LLDA, on the grounds of corrupt and unprofessional behavior and management incompetence. In an investigation into the allegations against Cataquiz ordered by Secretary Gozun of the DENR, it was determined that respondent may be found guilty for acts prejudicial to the best interest of the government and for violations of several pertinent laws and regulations. It was recommended that the case be forwarded to the Presidential Anti-Graft Commission. Later, a duly organized employees union of the LLDA, CELLDA, filed a complaint before the PAGC charging Cataquiz with violations of RA 3019 (The Anti-Graft and Corrupt Practices Act), The Administrative Code and The Code of Conduct and Ethical Standards for Public Officials and Employees. The Office of the President adopted the findings and recommendations of PAGC, and dismissed the respondent from service. The decision was amended by the OP imposing the penalties of disqualification from re-employment and forfeiture of retirement benefits because the penalty of dismissal was no longer available to him because of his replacement as General Manager of LLDA. The Court of Appeals reversed the decision. Meanwhile, the Office of the Ombudsman recommended the dismissal of the charges against respondent for violation of RA No. 3019.Issue:

Whether or not the dismissal of the charges against respondent by the Ombudsman serves as a bar to the finding of administrative liability.Ruling:

No. It is a basic rule in administrative law that public officials are under a three-fold responsibility for a

violation of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and administratively liable for the same act. Obviously, administrative liability is separate and distinct from penal and civil liability. In the case of People v. Sandiganbayan, the Court elaborated on the difference between administrative and criminal liability: “The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may give rise to criminal as well as administrative liability.

D. Liability of Superior Officers for Acts of Subordinates

Cesa v Ombudsman, G.R. No. 166658, April 30, 2008Facts:

On March 5, 1998, government auditors conducted a surprise audit at the Cash Division of Cebu City Hall.  Getting wind of the surprise audit, paymaster Rosalina G.Badana hurriedly left her office and, since then, never returned.  From September 20, 1995 to March 5, 1998, Badana had cash advances of more than P216 million fraudulently incurred by presenting cash items such as payrolls and vouchers already previously credited to her account to cover the balance or shortage during cash counts.  Her unliquidated cash advances were more than P18 million. The government auditors discovered that Badana had an average monthly cash advance of P7.6 million in excess of her monthly payroll of P5.7 million, and was granted more advances without liquidating previous advances.

On April 3, 1998, the Ombudsman impleaded Cesa and other city officials.[5]  Affirming the audit team’s report, graft investigators concluded that the city officials’ failure to observe relevant laws[6] and rules[7] governing the grant, utilization and liquidation of cash advances facilitated, promoted, and encouraged the defalcation of public funds. The irregularities could not have happened without the officials’

acts and omissions, as they failed to exercise the diligence of a good father of a family to prevent losses of funds and efficiently supervise the paymasters.

Cesa argued before the Ombudsman that he could not grant cash advances as the authority belongs to a higher officer and that he signed the cash advance vouchers not as approving officer but because his signature was required therein.  He further argued that Badana’s cash advances were legal and necessary for city workers’ salaries and that the matter could be resolved by the city accountant.  He also emphasized that since he had under him five department heads, he was not expected to review the work of some 370 workers under them, by virtue of division of labor and delegation of functions.

Ombudsman found Cesa and the other city officials guilty of neglect of duty and meted to them the penalty of six months suspension without pay.

The Court of Appeals dismissed Cesa’s gripe that there was lack of due process as the Ombudsman can undertake criminal or administrative investigations sans any complaint. It found Cesa negligent for tolerating the illegal practices on cash advances because he approved the paymasters’ requests for cash advances based on pieces of paper without any particulars and without diligent supervision over them.  The Court of Appeals ruled that the Arias ruling[13] where this Court held that heads of offices have to rely to a reasonable extent on their subordinates, is inapplicable to this case for it had not been alleged that Cesa conspired with Badana.  What was proven was that his negligence in carrying out his duties as city treasurer contributed to giving Badana the opportunity to malverse more than P18 million in public funds.

Issue:Whether or not the doctrine that a head of office has the right to rely on his subordinates and to

presume regularity in the subordinate’s performance of official functions applies only in criminal cases.

Ruling:No.That a public official’s foreknowledge of facts and circumstances that suggested an irregularity

constitutes an added reason to exercise a greater degree of circumspection before signing and issuing public documents.[24]  By failing to prevent the irregularity that Cesa had reason to suspect all along or to take immediate steps to rectify, Cesa had tolerated the same and allowed it to wreak havoc on the coffers of the city.

Arias v Sandiganbayan, 180 SCRA 309Facts:

That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D. Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and as such, headed and supervised the acquisition of private lands for the right-of-way of the Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused Cresencio D. Data in the Mangahan Floodway Project; accused Ladislao G. Cruz, then the Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who was charged with the acquisition of lots needed for the Mangahan Floodway Project; accused Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal, Ministry of Public Works who acted as the surveyor of the Mangahan Floodway Project; accusedClaudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's Office, Ministry of Public Works who passed upon all papers and documents pertaining to private lands acquired by the Government for the Mangahan Floodway Project; and accused Amado C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila, who passed upon and approved in audit the acquisition as well as the payment of lands needed for the Mangahan Floodway Project all taking advantage of their public and official positions, and conspiring, confederating and confabulating with accused Natividad C. Gutierrez, the attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel of land situated at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title No. 0097, with accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident bad faith, while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting with manifest partiality in the discharge of their official public and/or administrative

functions, did then and there wilfully, unlawfully and feloniously cause undue injury, damage and prejudice to the Government of the Republic of the Philippines by causing, allowing and/or approving the illegal and irregular disbursement and expenditure of public funds in favor of and in the name of Benjamin P. Agleham in the amount of P1,520,320.00 under General Voucher No. 8-047, supported by a certification, dated September 14, 1978, which was purportedly issued by the Municipal Treasurer of Pasig, and certified xerox copies of Tax Declarations Nos. 47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an alleged owner's copy of Tax Declaration No. 49948, in the name of the Republic of the Philippines, said   supporting documents having been falsified by the accused to make it appear that the land mentioned in the above-stated supporting papers is a residential land with a market value of P80.00   p er square meter and that 19,004 square meters thereof were transferred in the name of the Government of the Republic of the Philippines under Tax Declaration No. 49948, when in truth and in fact, the afore-stated land is actually a riceland with a true and actual market value of P5.00 per square meter only and Tax Declaration No. 49948 was truly and officially registered in the names of spouses Moises Javillonar and Sofia San Andres, not in the name of the Government, and refers to a parcel of land at Sagad, Pasig, Metro Manila; that the foregoing falsities were committed by the accused to conceal the fact that the true and actual pace of the 19,004 square meters of land of Benjamin P. Agleham, which was acquired in behalf of the Government by way of negotiated purchase by the accused officials herein for the right of way of the Mangahan Floodway project at an overprice of P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced amount, the accused misappropriated, converted and misapplied the excess of the true and actual value of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs, uses and benefits, to the damage and prejudice of the Government in the amount of P1,428,300.00. Ruling:

We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing, his signature as the final approving authority.

There appears to be no question from the records that documents used in the negotiated sale were falsified. A key tax declaration had a typewritten number instead of being machine-numbered. The registration stampmark was antedated and the land reclassified as residential instead of ricefield. But were the petitioners guilty of conspiracy in the falsification and the subsequent charge of causing undue in injury and damage to the Government?

We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document, letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling.

Part IVTermination of Relations

A. Modes of termination

End of term

Fernandez v Ledesma, G.R. No. L-18878, 3-30-63

Facts:

Celso A. Fernandez was appointed ad interim chief of police of Basilan City on January 7, 1954, took his oath of office on the same date, and his appointment was confirmed by the Commission on Appointments on April 21, 1954. On June 8, 1957, President Carlos P. Garcia, in an administrative order, suspended Fernandez for one month for having been found guilty of gross negligence, violation of law, and dereliction of duty.

Fernandez was later charged before the Court of First Instance of Basilan City with two offenses, one for disobedience of an order of his superior officer (Criminal Case No. 368) and another for oral defamation (Criminal Case No. 438), for which he was suspended from office by the then Executive Secretary Fortunato de Leon. He asked that his order of suspension be lifted but it was denied. After the prosecution had rested its cases and without requiring the accused to submit his defense, the latter was acquitted in the two criminal cases abovementioned. Nevertheless, Fernandez continued suspended even if no formal administrative charge were instituted against him, or any administrative investigation conducted of said charges. On April 28, 1959, the then Executive Secretary Juan C. Pajo wrote Fernandez informing him that the President has terminated his services as chief of police of Basilan City and has designated Cecilio Ledesma in his place requesting him at the same time to turn over his office to Ledesma. The nomination of Ledesma having been confirmed by the Commission on Appointments, he took his oath of office as new chief of police of Basilan City on May 26, 1959. Whereupon, Fernandez instituted an action for quo warranto with mandamus against Ledesma before the Court of First Instance of Basilan City seeking his reinstatement on the ground that his removal from office without cause as provided by law was in violation of our Constitution.

Issue:

WON, the removal of Fernandez from office by the President was valid in accordance with Section 17, RA 288 – Charter of the City of Basilan.

Held/Ratio:

Yes, it is clear that the President in the exercise of his discretion has put an end to the services of appellant as chief of police of Basilan City on April 28, 1959, and this he did pursuant to the authority conferred upon him by Section 17 of Republic Act 288, known as the Charter of the City of Basilan, which reads as follows:

SEC. 17. Appointment and removal of officers and employees — Compensation.— The President shall appoint with the consent of the Commission on Appointments, the municipal judge and auxiliary municipal judge, the city engineer, the city treasurer-assessor, the city attorney, the chief of police and the other chiefs of departments of the city which may be created from time to time, and the President may remove at his discretion any of said appointive officers with the exception of the municipal judge, who may be removed only according to law. (Emphasis supplied)

As may be noted, under the aforesaid section, the President is vested with the authority to

appoint, with the consent of the Commission of Appointments, among others, the chief of police, and in connection with such power the same section says "the President may remove at his discretion any of said appointive officers with the exception of the municipal judge, who may be removed only according to law." Verily, the President interpreted said removal clause as meaning that he may terminate the services of any officer he may appoint under the charter at his discretion or pleasure with the exception of the municipal judge who may be removed only according to law, and in the exercise of such power he terminated the services of appellant as chief of police.

We agree with the foregoing interpretation. When the law says that the President may remove at his discretion any of the appointive officers of the city with the exception of the municipal judge who may be removed only according to law, it is evident that the legislative intent is to make the continuance in office of any of said appointive officers dependent upon the pleasure of the President. If such were not the case, it would not have made a distinction in point of removal between appointive officers in general and the municipal judge. This distinction verily is predicated upon the fact that nowhere in Republic Act No. 288 is there any mention that the term of office of the chief of police, and for that matter of any appointive officer, with the exception of the municipal judge, should be for a fixed period. The fact no term of office is fixed for that position is indicative of an intention to make it dependent upon the discretion or pleasure of the appointing power. And Congress is not wanting in power to do so for, as it was aptly said: "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 function of the government, to be exercised by him for the benefit of the public" (7 Mechem, Public Officers, Section 1; See also 42 Am. Jur., 944-955; Emphasis supplied ). And in Alba v. Alajar, 53 O.G. No. 5, p. 1452 , this Court also said: "Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of the President."

Appellant, however, does not agree with the foregoing view for he contends that the act of the President in appointing Cecilio Ledesma to the position of chief of police of Basilan City in his place is tantamount to his removal without cause from office in violation of Section 4, Article XII, of our Constitution, invoking in support thereof our ruling in the cases of De los Santos v. Mallare, 48 O.G., 1791 and Lacson v. Roque, 49 O.G., 93. But this contention cannot be sustained considering that the position of the chief of police does not have a fixed term. As already said, it was made dependent upon the discretion or pleasure of the President, whereas the cases invoked by appellant relate to positions for which the law fixes a definite term of office. What is in point here is the case of Alba v. Alajar, supra, wherein this Court made the following pronouncement:

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 his tenure , which is one the ordinary modes of terminating official relations. On this score, section 2545 of the Revised Administrative Code which was declared inoperative in the Santos vs. Mallare case, is different from section 8 of Republic Act No. 603. Section 2546 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, inopposite 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.

Hernandez v Villegas, G.R. No. L-17287, 6-30-65

Facts:

Epifanio Villegas, a lawyer and civil service eligible, was appointed Director for Security of the Bureau of Customs, with compensation at P6,000, effective November 1, 1955. In 1956, he was sent to the United States to study enforcement techniques and customs practices under the technical assistance program of the National Economic Council and the International Cooperation Administration.

Villegas returned to the Philippines in June, 1957. Shortly thereafter, he was temporarily detailed to the Arrastre Service vice Eleazar Manikin and, in his stead, James Keefe was designated Acting Director for Security. While he was acting Arrastre Superintendent, however, Villegas continued receiving his salary as Director for Security and, when the salary was increased from P6,600 to P7,017.60, he also received the corresponding salary adjustment.

On January 9, 1958, Secretary of Finance Jaime Hernandez proposed to the Office of the President the permanent appointment of Villegas as Arrastre Superintendent, stating in his letter that "this (the proposed appointment) involves a change of designation and status from Director for Security which is confidential in nature to Arrastre Superintendent, a classified position." A few days later, the appointment of James Keefe to the position of Director for Security was likewise proposed.

On January 14, 1958, Executive Secretary Juan C. Pajo advised Secretary Hernandez that the President had approved the proposed appointments of Villegas and Keefe. Accordingly, Villegas and Keefe's appointments, effective January 1, 1958, were prepared and later signed by Secretary Hernandez. As the Court of Appeals observed in its decision, "In one of the appointments, defendant Keefe was promoted to the position of Director for Security ... and in the other plaintiff was demoted to the rank of arrastre superintendent." (Emphasis supplied)

It appears that Villegas did not know of his appointment and that of Keefe until February 28, 1958. On this day, he learned that Keefe was being paid the salary for Director for Security and, on further inquiry, found that he had been appointed Arrastre Superintendent. On March 3, 1958, therefore, he served notice on Customs Commissioner Eleuterio Capapas that he was resuming the duties and functions of his office as Director for Security. He also wrote the Auditor General, Secretary Hernandez and Commissioner Capapas, the Budget Commissioner, and the Civil Service Commissioner, asking them to

disapprove the promotional appointment of Keefe to the post of Director for Security.

Villegas resorted for quo warranto and the judgment was on his favor.

Issue/s:

1) WON, the office of Director for Security in the Bureau of Customs, is a primarily confidential position

Held/Ratio:

Not necessarily, SC said that, we do not need to consider the position involved in this case is primarily confidential, because, even assuming the position to be, it is nevertheless subject to the Constitutional provision that "No officer or employee in the Civil Service shall be removed or suspended except for cause." (Phil. Const., Art. XII, sec. 4) Villanuevas' removal, is, therefore, concededly without cause. Thus, only recently, this Court reiterated in Corpus v. Cuaderno, G.R. No. L-23721, March 31, 1965, the view that :

[T]he Constitutional provisions merely constitute the policy-determining, primarily confidential, and highly technical positions as exceptions to the rule requiring appointments in the Civil Service to be made on the basis of merit a fitness as determined from competitive examinations (sec. 1, supra ) (Jover vs. Borra, 49 O.G. [No. 7] 2755), but that the Constitution does not exempt such positions from the operation of the principle emphatically and categorically enumerated in section 4 of Article XII that —

No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.

and which recognizes no exception .

This view finds confirmation in sections 3 and 5 of the Civil Service Act of 1959 (Rep. Act No. 2260).

The statement in De los Santos v. Mallare, supra, to the effect that appointment to any of the three classes of positions is terminable at the will of the appointing power, must be deemed a mere obiter. It has been correctly criticized as misleading. For if these three special positions do not really belong to the Civil Service, the Constitution would not have specifically named them as an exception to the general rule that all appointments must be made on the basis of merit and fitness to be determined by competitive examinations. (Sinco, Philippine Political Law 411 [11th ed. 1962]) Indeed, in the Corpus case, this statement was held as not controlling, the ruling in the De los Santos case, where the statement appears, being that a city engineer who belongs to the unclassified service is protected by the security of tenure provisions of the Constitution.

It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office — two different causes for the termination of official relations recognized in the Law of Public Officers. (See, e.g., Corpus v. Cuaderno, supra; Alba vs. Evangelista, 53 O.G. 1452; Fernandez v. Ledesma, G.R. No. L-18879, March 30, 1963. Contra Hojilla v. Marino,

G.R. No. L-20574, Feb. 26, 1965.) But the point is that as long as confidence in them endures — and it has been shown that it has been lost in this case — the incumbent is entitled to continue in office.

We therefore hold that Villegas' removal from the office of Director for Security is without cause and is therefore illegal.

Retirement

Beronilla v GSIS, G.R. No. L-21723, Nov. 26, 1970

Facts:

A special civil action for prohibition seeking to declare Resolution No. 1497 of the Board of Trustees of the respondent Government Service Insurance System of August 9, 1963 to the effect that petitioner "Mr. (Hilarion) Beronilla be considered compulsorily retired from the service (as Auditor of the Philippine National Bank) effective January 14, 1963" as null and void.

At the time of the filing of the present petition on August 23, 1963, petitioner was acting as and performing the duties of Auditor of the Philippine National Bank. Before that, he had occupied many other positions in the government and had been a member of the GSIS during all times required by law.

In his application for employment, his applications for life and retirement insurance as well as his application to be allowed to take civil service examinations, ten times from 1917 to 1925, petitioner uniformly indicated that his date of birth is January 14, 1898. He also indicated the same date of birth in his Member's Service Record which he submitted to the GSIS on October 29, 1954 pursuant to the provisions of Section 13-A, Republic Act No. 660.

On September 29, 1959, he requested the Commissioner of Civil Service, thru the Auditor General, that his date of birth indicated in the records be changed to January 14, 1900. According to the petition, it was only in 1955, before the demise of his mother that petitioner discovered that his true date of birth is January 14, 1900; that his mother told him that in 1916, his uncle, Alvaro Beronilla, purchased a cedula for him showing in the same that he was already 18 years old for the reason that his uncle wanted to take advantage of his being able to vote for him in La Paz, Abra in 1919, when he would be already twenty-one years of age and the uncle a candidate for vice-president of the municipality; that since then he had been looking for people who could attest to his true date of birth and it was only in September, 1959 that he came upon two old persons of their town, Felix Alberne and Ricardo Lalin who could do so; that the former had been a member of the provincial board and the latter is a retired justice of the peace; and that his letter to the Civil Service Commissioner was supported by the affidavits of these two persons. This letter was endorsed by the Commission to the GSIS for action "without the intervention of the Civil Service Commission."

In the GSIS, petitioner's letter-request was referred to the Legal Counsel who, on October 22, 1959, denied the same since "all official records point to January 14, 1898 as the birthday of Mr. Hilarion Beronilla." Upon learning of this denial, petitioner submitted additional evidence to support his request. This evidence consisted of photostat copies of the yearbooks of the Philippine Institute of Accountants in 1954 and 1958 wherein his date

of birth is shown as January 14, 1900. This additional evidence notwithstanding, on March 21, 1960 the Legal Counsel reiterated his former denial. Whereupon, on May 21, 1960 petitioner appealed to the General Manager of the System who at that time was Mr. Rodolfo Andal. Upon favorable recommendation of the 2nd Assistant General Manager, Mr. F. G. Araña in a memorandum dated May 30, 1960, on June 2, 1960, Mr. Andal placed "OK." at the foot thereof over his initials, thus indicating approval of the requested change.

Based on this action of the General Manager, notes of the adjustment of the date of birth of petitioner to January 14, 1900 were sent to the Auditor General and the Commissioner of Civil Service and the proceeds of petitioner's policy was re-computed. As emphasized by petitioner, in the letter to the Philippine National Bank, it is stated that "his date of birth has been adjusted by this office, after careful study and deliberation." On the other hand, in the 2nd indorsement to the Deputy Auditor General, it was made clear that relative to petitioner's life insurance policy No. N-2065 which had matured on November 30, 1957, corresponding adjustment or recomputation of the maturity value had been effected on the basis of his changed date of birth. In the meantime, upon application of petitioner, on October 1, 1960, he was issued a new life policy No. 335778 indicating his date of birth as January 14, 1900. Regarding his above-mentioned policy No. N-2065, on July 7, 1960, demand was made upon petitioner to pay the System additionally the sum of P131.09, due to the adjustment of his date of birth, which demand, petitioner promptly complied with.

Almost three years after Mr. Andal approved the change of petitioner's date of birth, more specifically, on May 6, 1963, Mr. Ismael Mathay, then Auditor of the Central Bank detailed to the Philippine National Bank, wrote the Board of Trustees of the GSIS about the service of petitioner and stated that "in the course of the audit of the transactions of the Philippine National Bank, it was found that Mr. Hilarion Beronilla has been continuously paid since January 15, 1963, his salary allowances and other fringe benefits as Auditor of said Bank notwithstanding the fact that Mr. Beronilla has attained his sixty-fifth (65th) birthday last January 14, 1963, the date of his automatic and compulsory retirement from the government service as fixed under Republic Act No. 3096 approved June 16, 1961."

Issue/s:

WON, the GSIS Board of Trustees acted within its powers when it reversed the approval by General Manager Andal of petitioner's request for the change of his date of birth, taking all circumstances into account including petitioner's allegations of res adjudicata, laches, estoppel, denial of due process and unconstitutional impairment of contractual obligations.

Held/Ratio:

Yes, it acted within its powers. It is clear to Us that under the GSIS charter, the General Manager's approval is not beyond review and reprobation by the Board of Trustees. It must be borne in mind that under Section 16 of said charter, the System "shall be managed by the Board of Trustees ... " and Section 17 adds that the Board "shall have the following powers and authority: (a) to adopt by-laws, rules and regulations for the administration of the System and the transaction of its business." On the other hand, the extent of the functions and powers of the General Manager are defined in Section 18 as follows:

SEC. 18. Personnel. — The Board shall have the power to appoint a general manager, who shall be a person of recognized experience and capacity in the subject of life and social insurance, and who shall be the chief executive officer of the System, one or more assistant general managers, one or more managers, a medical director, and an actuary, and fix their compensation. The general manager shall, subject to the approval of the Board, appoint additional personnel whenever and wherever they may be necessary to the effective execution of the provisions of this Act, fix their compensation, remove, suspend, or otherwise discipline them, for cause. He shall have the power to prescribe their duties, grant leave, prescribe certain qualifications to the end that only competent persons may be employed, and appoint committees: Provided, however, That said additional personnel shall be subject to existing Civil Service laws, rules and regulations.

xxx xxx xxx

It is thus obvious that by express statutory authority, the Board of Trustees directly manages the System and the General Manager is only the chief executive officer of the Board. In the exercise of its power to adopt rules and regulations for the administration of the System and the transaction of its business, the Board may lodge in the General Manager the authority to act on any matter the Board may deem proper, but in no wise can such conferment of authority be considered as a full and complete delegation resulting in the diminution, much less exhaustion, of the Board's own statutorily-based prerogative and responsibility to manage the affairs of the System and, accordingly, to decide with finality any matter affecting its transactions or business. In other words, even if the Board may entrust to the General Manager the power to give final approval to applications for retirement annuities, the finality of such approval cannot be understood to divest the Board, in appropriate cases and upon its attention being called to a flaw, mistake or irregularity in the General Manager's action, of the authority to exercise its power of supervision and control which flows naturally from the ultimate and final responsibility for the proper management of the System imposed upon it by the charter. Incidentally, it may be added that the force of this principle is even more true insofar as the GSIS is concerned, for the fiduciary character of the management of the System is rendered more strict by the fact that the funds under its administration are partly contributed by the thousands upon thousands of employees and workers in all the branches and instrumentalities of the government. It is indeed well to remember at all times that the System and, particularly, its funds do not belong to the government, much less to any administration which may happen to be temporarily on the saddle, and that the interests of the mass of its members can only be duly safeguarded if the administrators of the System act with utmost fidelity and care. Not for nothing is its controlling and managing board called the Board of Trustees. We hold that any authority conferred upon the General Manager by the Board of Trustees notwithstanding, the said Board may in appropriate cases and in the exercise of its own sound discretion review the actions and decisions of the General Manager. The mere fact that the resolution granting the authority expressly gives the character of finality to the General Manager's acts does not constitute such a representation to third persons dealing with the System that such finality is definite even vis-a-vis the Board as to create any estoppel, for the simple reason that it is not legally possible for the Board to divest itself of an authority which the charter of the System places under its direct responsibility. From another point of view, since the law clearly vests the management in the Board and makes the General Manager only its chief executive officer, all parties dealing with the System must be deemed to be on guard regarding the ultimate authority of the Board to modify or reverse any action of the General Manager and they cannot complain should the Board exercise its powers in the

premises.

It may be stated at the outset that petitioner's twin points of laches and estoppel actually boil down in this particular case to nothing more than estoppel by silence. With this clarification, it is meet to recall that "mere innocent silence will not work estoppel. There must also be some element of turpitude or negligence connected with the silence by which another is misled to his injury" (Civil Code of the Philippines by Tolentino, Vol. IV, p. 600) and that "the doctrine of estoppel having its origin in equity and therefore being based on moral and natural justice, its applicability to any particular case depends, to a very large extent, upon the special circumstances of the case." (Mirasol v. Municipality of Tabaco, 43 Phil. 610, 614.) Important also it is not to overlook that as regards the actuations of government officials, the general rule is that their mistakes and omissions do not create estoppel.

The compulsory retirement of government officials and employees upon their reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and at the same time give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompense, inadequate perhaps for their long service and devotion to. the government, in the form of a comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose upon them. Needless to say, therefore, the officials charged with the duty of implementing this policy cannot be too careful in insuring and safeguarding the correctness and integrity of the records they prepare and keep. In this case, all that the Board has done is to set aside what it found to be an erroneous decision of the General Manager in approving the change of date of petitioner's birth, because from the evidence before it, the Board was convinced that the originally recorded date of birth should not be disturbed. We cannot see where the charged inequity of such action of the Board could lie.

For decades back, repeatedly and uniformly, petitioner made it appear in all material government and public records and in all his representations to respondent System that his date of birth is January 14, 1898. His rather belated request for a change of said date to January 14, 1900 which would unquestionably favor his interests, pecuniarily or otherwise, and correspondingly adversely affect those of the System and, of course, its members, was duly investigated and found not to be sufficiently grounded to merit favorable action by the Legal Counsel in whom is lodged the authority to evaluate such request. It is to be noted that, after all, it was always the petitioner who made representations to the respondent System as to his date of birth, and not the other way around. All that the System did was to take his representations for what they were worth. He was not believed by the Legal Counsel, but the General Manager did; on the other hand, the authority higher than the General Manager found the action of the General Manager erroneous. Under these circumstances, how could the System be in estoppel where the conflicting representations are of the petitioner rather than of the System?

Finally, as regards petitioner's argument that the Board's resolution in question constitutes an impairment of the obligations of his contract of insurance, it is obvious that the constitutional injunction that is evidently the basis of such argument refers to the legislature and not to resolutions even of government corporations. Besides, petitioner's life insurance policy, apart from not having any real relevance in this case, what is involved being his retirement, contains specific provisions contemplating the correction of any error or mistake in the date of birth of the insured. On the other hand, the retirement of government employees is imposed by law and is not the result of any contractual

stipulation.

Abolition of officeBusacay v Buenaventura, 94 Phil. 1033

Facts:

The plaintiff was a duly appointed and qualified pre-war toll collector in the office of the provincial treasurer of Pangasinan with station at the Bued toll bridge in Sison, Pangasinan. His appointment was classified by the Commissioner of Civil Service as permanent. On October 18, 1945, after liberation, he was reappointed to that position with compensation at the rate of P720 per annum. On March 21, 1946, he resigned but on April 16 he was reappointed, and had continuously served up to November of 1947, when the bridge was destroyed by flood, by reason of which, he and two other toll collectors were laid off. Previously, from July 17 to September 10, 1946, the bridge had been temporarily closed to traffic due to minor repairs and during that period he and his fellow toll collectors had not been paid salaries because they had not rendered any service, but upon the reopening of the bridge to traffic after the repairs, he and his companions resumed work without new appointments and continued working until the bridge was washed away by flood in 1947.

When the bridge was reconstructed and reopened to traffic about the end of November, 1950, the plaintiff notified the respondent Provincial Treasurer of his intention and readiness to resume his duties as toll collector but said respondent refused to reinstate or reappoint him. Respondent Alfredo Murao, also a civil service eligible, was appointed instead of him in February, 1951, and has been discharging the duties of the position ever since. The position now carries a salary of P1,440 a year. The Bued toll bridge is a portion of a national road and is a national toll bridge under Act No. 3932. The salaries of toll collectors thereon are paid from toll collections. In 1948, 1949 and 1950, no appropriation was set aside for these salaries, when the bridge was being rehabilitated. On September 15, 1950, the board on toll bridges approved the Bued river bridge as a toll bridge, authorized the collection of fees thereon, and prescribed corresponding rules and regulations.

Issue/s:

WON, by the total destruction of the bridge in 1947 the positions of toll collectors provided therefor were abolished.

Held/Ratio:

No. To consider an office abolished there must have been an intention to do away with it wholly and permanently, as the word "abolish" denotes. Here there was never any thought, avowed or apparent, of not rebuilding the aforementioned bridge. Rather the contrary was taken for granted, so indispensable was that bridge to span vital highways in northern Luzon and to Baguio.

This being so, the collapse of said bridge did not, in our opinion, work to destroy but only to suspend the plaintiff's position, and that upon the bridge's rehabilitation and its reoperation as a toll bridge, his right to the position was similarly and automatically

restored.

This position is temporary, transitory or precarious only in the sense that its life is co-extensive with that of the bridge as a toll bridge. For that matter, all offices created by statute are more or less temporary, transitory or precarious in that they are subject to the power of the legislature to abolish them. But this is not saying that the rights of the incumbents of such positions may be impaired while the offices exist, except for cause.

The fact that the destruction of the bridge in question was total, and not partial as in 1945, the length of time it took to reconstruct it, and the hypothetical supposition that the new structure could have been built across another part of the river, are mere matters of detail and do not alter the proposition that the positions of toll collector were not eliminated. We believe that the cases of pre-war officers and employees whose employments were not considered forfeited notwithstanding the Japanese invasion and occupation of the Philippines and who were allowed to reoccupy them after liberation without the formality of new appointments are pertinent authority for the views here expressed

Our judgment then is that the appellant should be reinstated to the position he held before the destruction of the Bued river bridge.

The claim for back salary and/or damages may not be granted, however. Without deciding the merit of this claim, it is our opinion that the respondent Provincial Treasurer is not personally liable therefor nor is he authorized to pay it out of public funds without proper authorization by the Provincial Board, which is not a party to the suit.

Manalang v Quitoriano, G.R. No. L-6898, April 30, 1954

Facts:

Petitioner Luis Manalang contests, by quo warranto proceedings, the title of the incumbent Commissioner of the National Employment Service, and seeks to take possession of said office as the person allegedly entitled thereto.

The original respondent was Aurelio Quitoriano, who, at the time of the filing of the petition (August 4, 1953), held said office, which he assumed on July 1, 1953, by virtue of a designation made, in his favor, as Acting Commissioner of the National Employment Service, by the Office of the President of the Philippines. Subsequently, or on October 22, 1953, petitioner included, as respondents, Emiliano Morabe, who, on September 11, 1953, was designated Acting commissioner of National Employment Service, and Zosimo G. Linato, the Collecting, Disbursing and Property Officer of said National Employment Service — hereinafter referred to, for the sake of brevity, as the Service — in order to restrain him from paying, to respondent Morabe, the salary of the Commissioner of said Service. Still later, or on January 21, 1954, Mohamad de Venancio, who was designated Acting Commissioner of said Service, and assumed said office, on January 11 and 13, respectively, of the same year, was included as respondent.

Petitioner, Luis Manalang, was Director of the Placement Bureau, an office created by Executive Order No. 392, dated December 31, 1950 (46 Off. Gaz., No. 12, pp. 5913, 5920-5921), avowedly pursuant to the powers vested in the President by Republic Act No. 422. On June 20, 1952, Republic Act No. 761, entitled "An Act to Provide for the Organization of

a National Employment Service," was approved and became effective. Section 1 thereof partly provides:

. . . In order to ensure the best possible organization of the employment market as an integral part of the national program for the achievement and maintenance of maximum employment and the development and use of productive resources there is hereby established a national system of free public employment offices to be known as the National Employment Service, hereinafter referred to as the Service. the Service shall be under the executive supervision and control of the Department of Labor, and shall have a chief who shall be known as the Commissioner of the National employment Service hereinafter referred to as Commissioner. Said Commissioner shall be appointed by the President of the Philippines with the consent of the Commission on Appointments and shall receive compensation at the rate of nine thousand pesos per annum. A Deputy Commissioner shall be appointed by the President of the Philippines with the consent of the Commission on Appointments and shall receive compensation at the rate of seven thousand two hundred pesos per annum.

On June 1, 1953, the then Secretary of Labor, Jose Figueras, recommended the appointment of petitioner Luis Manalang as Commissioner of the Service. On June 29, 1953, respondent Aurelio Quitoriano, then Acting Secretary of Labor, made a similar recommendation in favor of Manalang, upon the ground that "he is best qualified" and "loyal to service and administration." Said Acting Secretary of Labor even informed Manalang that he would probably be appointed to the office in question. However, on July 1, 1953, Quitoriano was the one designated, and sworn in, as Acting Commissioner of the Service. Such designation of Quitoriano — like the subsequent designation, first, of Emiliano Morabe, and the, of Mohamad de Venancio — is now assailed by Manalang as "illegal" and equivalent to removal of the petitioner from office without cause.

Issue/s:

WON, Manalang was illegally removed from office without cause.

Held/Ratio:

No, he was not. Petitioner Manalang has never been Commissioner of the National Employment Service and, hence, he could not have been, and has not been removed therefrom. Secondly, to remove an officer is to oust him from office before the expiration of his term. As removal implies that the office exists after the ouster. Such is not the case of petitioner herein, for Republic Act No. 761 expressly abolished the Placement Bureau, and, by implication, the office of director thereof, which, obviously, cannot exist without said Bureau. By the abolition of the latter and of said office, the right thereto of its incumbent, petitioner herein, was necessarily extinguished thereby. Accordingly, the constitutional mandate to the effect that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law" (Art. XII, Sec. 4, Phil. Const.), is not in point, for there has been neither a removal nor a suspension of petitioner Manalang, but an abolition of his former office of Director of the Placement Bureau, which, admittedly, is within the power of Congress to undertake by legislation.

It is argued, however, in petitioner's memorandum, that

. . . there is no abolition but only fading away of the title Placement Bureau and all

its functions are continued by the National Employment Service because the two titles cannot co-exist. The seemingly additional duties were only brought about by the additional facilities like the district offices. Employment Service Advisory Councils, etc.

The question whether or not Republic Act No. 761 abolished the Placement Bureau is one of legislative intent, about which there can be no controversy whatsoever, in view of the explicit declaration in the second paragraph of section 1 of said Act reading:

Upon the organization of the Service, the existing Placement Bureau and the existing Employment Office in the Commission of Social Welfare shall be abolished, and all the files, records, supplies, equipment, qualified personnel and unexpended balances of appropriations of said Bureau and Commission pertaining to said bureau or office shall thereupon be transferred to the Service. (Emphasis supplied.)

Incidentally, this transfer connotes that the National Employment Service is different and distinct from the Placement Bureau, for a thing may be transferred only from one place to another, not to the same place. Had Congress intended the National Employment Service to be a mere amplification or enlargement of the Placement Bureau, Republic Act No. 761 would have directed the retention of the "qualified personnel" of the latter, not their transfer to the former. Indeed, the Service includes, not only the functions pertaining to the former Placement Bureau, but also, those of the former Employment Office in the Commission of Social Welfare, apart from other powers, not pertaining to either office, enumerated in section 4 of Republic Act No. 761.

It is next urged in petitioner's memorandum "that the item of National Employment Service Commissioner is not new and is occupied by the petitioner" and that the petitioner is entitled to said office "automatically by operation of law," in view of the above quoted provision of section 1 of Republic Act No. 761, relative to the transfer to the service of the "qualified personnel" of the Placement Bureau and of the Employment Office in the Commission of Social Welfare.

This contention is inconsistent with the very allegations of petitioner's pleadings. Thus, in paragraph 11 of his petition, it is alleged "that increasing the item and elaborating the title of a civil servant, although necessitating a new appointment, does not mean the ousting of the incumbent or declaring the item vacant." In paragraph 12 of the same pleading, petitioner averred that "on or about June 25, 1953, two days before the departure of President Quirino to Baltimore, petitioner wrote a confidential memorandum to His Excellency reminding him of the necessity of appointing anew the petitioner as head of the National Employment Service."

Having thus admitted — and correctly — that he needed a new appointment as Commissioner of the National Employment Service, it follows that petitioner does not hold — or, in his own words, occupy — the latter's item, inasmuch as the right thereto may be acquired only by appointment. What is more, Republic Act No. 761 requires specifically that said appointment be made by the President of the Philippines 'with the consent of the Commission on Appointments." How could the President and the Commission on Appointments perform these acts if the Director of the Placement Bureau automatically became Commissioner of the National Employment Service?

Neither may petitioner profit by the provision of the second paragraph of section 1 of Republic Act No. 761, concerning the transfer to the Service of the "qualified personnel" of

the Placement Bureau and of the Employment Office in the Commission of Social Welfare, because:

1. Said transfer shall be affected only "upon the organization" of the National Employment Service, which does not take place until after the appointment of, at least, the commissioner thereof. If the Director of the Placement Bureau were included in the phrase "qualified personnel" and, as a consequence, he automatically became Commissioner of the Service, the latter would have become organized simultaneously with the approval of Republic Act No. 761, and the same would not have conditioned the aforementioned transfer "upon the organization of the Service," which connotes that the new office would be established at some future time. Indeed, in common parlance, the word "personnel" is used generally to refer to the subordinate officials or clerical employees of an office or enterprise, not to the managers directors or heads thereof.

2. If "qualified personnel" included the heads of the offices affected by the establishment of the Service, then it would, also, include the chief of the Employment Office in the Commission of Social Welfare, who, following petitioner's line of argument, would, like petitioner herein, be, also, a Commissioner of the National Employment Service. The result would be that we would have either two commissioners of said Service or a Commission thereof consisting of two persons — instead of a Commissioner — and neither alternative is countenanced by Republic Act No. 761.

3. Congress can not either appoint the Commissioner of the Service, or impose upon the President the duty to appoint any particular person to said office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing the concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office.

Facundo v Pablan, G.R. No. L-17746, January 31, 1962

Facts:

On July 13, 1960, Valeriano Ulep and Alejandro Facundo jointly filed with the Court of First Instance of Pangasinan a petition for mandamus (docketed as Special Civil Case No. T-669) against respondents Carbonell (municipal mayor of Asingan, Pangasinan), Layos, Domingo, Lopez, de los Trinos, Cruz (municipal councilors of Asingan), and Perez (municipal treasurer) alleging, as first cause of action, that on February 11, 1948, petitioner Ulep was appointed Local Civil Registry Clerk in the office of the municipal treasurer of Asingan, and has held said position and received salary therefor, continuously since his appointment; that because he is a non-civil service eligible, he (Ulep) took the general clerical (qualifying) civil service examination on February 27, 1960, pursuant to the provisions of Republic Act No. 2260, known as the Civil Service Act of 1959; that on June 24, 1960, respondents municipal councilors passed Resolution No. 67, abolishing his position and, on the same day, approved Resolution No. 70, creating 4 positions of policemen; and that four days later, respondent mayor Carbonell wrote a letter to him (Ulep) terminating his services as Local Civil Registry clerk.

As second cause of action, the petition alleged that the other petitioner Facundo, a third grade civil service eligible was appointed as Market Collector in the office of the municipal treasurer of Asingan, on October 15, 1958, and has continuously held and performed the

duties of said position and received the emoluments therefor since his appointment; that in said Resolution No. 67, his position was abolished; and that on June 28, 1960, respondent mayor Carbonell wrote him a letter terminating his services as Market Collector.

The petition further alleged that by the approval and adoption of said resolution and the termination of their services, petitioners have been unlawfully excluded from their positions; that in approving and adopting said resolution and in terminating their services, respondents were impelled by revenge and ulterior motives; that respondents' acts are oppressive, persecutory, and violative of the specific provisions of the cited Republic Act No. 2260. Petitioners, therefore, prayed that a preliminary mandatory order 1 be issued directing respondent mayor Carbonell to reinstate them to their positions; and that judgment be rendered declaring respondents to have acted illegally in passing said resolution, and in terminating petitioners' services, declaring void said resolution for being oppressive, persecutory, and violative of the provisions of Republic Act No. 2260

To this petition, respondents timely filed their answer alleging, among others, that the positions abolished under the resolution in question "were unnecessary and useless and carrying duties which could be efficiently performed by other employees in the office of the Municipal Treasurer"; that the appropriation for said positions, "could be applied for more important and useful undertakings of the municipality, particularly, in the implementation and pursuance of its inherent duty, which is the present administration's avowed policy of maintaining peace and order which have been unduly neglected in the past"; and that said resolution "is valid and lawful, enacted and resolved with a view of bringing about a better and more efficient administration and in consonance with the promise and avowed policy of the present administration of maintaining peace and order" for which it received the confidence of the people of Asingan in the last local elections. Respondents prayed that the petition be dismiss with costs.

The lower court ruled that the abolition of the position of Ulep was valid, being not civil service legible while the abolition of the position of Facundo is not valid as he was entitled to permanency being civil service legible.

To this, Ulep appealed while the respondents appealed out of the reglementary period. The counsel for Facundo moved for execution of the judgment, to which the Judge Pabalan denied, alleging that since Ulep appealed, then the SC may declare valid or invalid in parts or in whole the Resolution 67 which can still affect Facundo. Facundo filed for mandamus against Judge Pabalan.

Issue/s:1) WON, mandamus can be granted against Judge Pabalan.

2) WON, the municipal council validly abolished the position of Ulep.

Held/Ratio:

1) Yes, Facundo's petition for certiorari with mandamus is meritorious. The records disclose that respondents' appeal was filed out of time and was disallowed by the trial court in its order of November 3, 1960. Consequently, the decision in favor of petitioner Facundo became final and executory (Sec. 1, Rule 39, Rules of Court), and he (Facundo) became entitled, as a matter of right, to its execution. It, therefore, became respondent Judge's ministerial duty, compellable by mandamus, to issue the writ of execution sought

by Facundo.

The fact that there is only one decision and only one resolution involved, does not make the right of one of the petitioners dependent upon the right of the other. The provisions of Resolution No. 67 are severable, each petitioner occupying a different position and having different qualifications, Facundo being a civil service eligible and Ulep, not. The decision too, although only one, contains separate findings for each of the parties and makes distinct and independent rulings for each of them. The appeal, therefore, of Ulep which has no bearing to the ordered reinstatement of Facundo cannot be an obstacle to the execution of said decision insofar as Facundo is concerned.

2) There is no law which expressly authorizes a municipal council to abolish the positions it has created, but the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules expressly or impliedly providing otherwise (Castillo v. Pajo, et al., G. R. No. L-11262, prom. April 28, 1958, citing Brillo v. Enage, 50 O. G. 3102 and 67 C.J.S. 121). However, the office must be abolished in good faith; and if immediately after the office is abolished, another office is created with substantially the same duties, and a different individual is appointed, or if it otherwise appears that the office was abolished for personal or political reasons, the courts will intervene (Gacho, et al. v. Osmena, et al., G. R. No. L-10989, prom. May 28, 1959, citing 37 Am. Jur. 858).

In the instant case, the reasons which impelled the municipal council of Asingan in adopting. Resolution No. 67 dated June 24, 1960, abolishing the position of appellant are stated therein, to wit: there is "an excess of personnel" in the office of the municipal treasurer of Asingan; the position of appellant "could be undertaken by the internal revenue clerk" in said office; and if abolished, the remaining positions in said office "will be sufficient to warrant the sound operation of said office". In respondents' answer, it is also stated that the appropriation for said position "could be applied for more important and useful undertakings of the municipality, particularly, in the implementation and pursuance of its inherent duty, which is the present administration's avowed policy of maintaining peace and order, which have been unduly neglected in the past." Observe too, that the new positions created (in Resolution No. 70 of the same date as No. 67) are those of policemen, the duties of which, are entirely different from those of appellant. In the circumstances, we are not prepared to declare that the action of the municipal council of Asingan was an abuse of the power and discretion lodged in it by existing law (Rodriguez v. Montinola, G.R. No. L-5689, prom. May 14, 1954).

Appellant contends that his removal from his position was illegal because having taken the civil service examination required under Section 23 2 of Republic Act No. 2260, known as the Civil Service Act of 1959, he could not be replaced or removed from office, unless the results of said examination shows he failed therein. He also argues that his removal was illegal, as it was not for cause as provided by Section 4, Article XI of the Constitution. But, appellant can not successfully invoke said provisions in his favor, because there has been no removal of petitioner, but in abolition of his position, which was within the power of the municipal council of Asingan to do.

Cruz v Primicias, 23 SCRA 998

Facts:

Direct petition for Mandamus, with preliminary injunction, filed by certain employees of the Province of Pangasinan, to declare Resolution No. 5 of the Provincial Board and Executive Order No. 2 of the Provincial Governor null and void; to have the abolition of petitioners' positions declared illegal, and compel their immediate reinstatement; to restrain respondents from excluding petitioners from the enjoyment of their rights as civil service employees, and to recover attorneys' fees and costs.

It is not disputed that upon election and assumption of office in 1967 of the respondents Provincial Governor and Members of the Provincial Board, the latter adopted on January 1, 1968, Resolution No. 5 providing as follows:

Resolution No. 5

RESOLVED by the Provincial Board of Pangasinan, that for the purpose of promoting simplicity, economy and efficiency in the operation of the Provincial Government and for the purpose of providing the necessary expanded services on agricultural extension, rural health, provincial public works and legal services, etc., the Provincial Governor is hereby authorized to effect by executive orders from time to time for a period not exceeding six (6) months from the date of approval of this resolution, such reforms and changes in the different offices and branches of the Provincial Government as may be necessary, with the power to diminish, add to or abolish those existing and create new ones; consolidate related undertakings; transfer functions, appropriations, equipments, properties, records and personnel from one office or branch to another; eliminate duplicated services or authorize new ones not provided for; classify, combine, split or abolish positions; standardize salaries and do whatever is necessary and desirable to effect economy and promote efficiency of the government service and provide necessary services for the promotion of the general social welfare.

That any action taken by the Provincial Governor pursuant to this resolution shall be immediately reported to the Provincial Board and shall be valid and subsisting until the Provincial Board shall provide otherwise.1ªvvphi1.nêt

Acting pursuant to this Resolution, the Governor issued his Executive Order No. 2 on January 2, 1968, reorganizing the office of the Governor and that of the Provincial Board. The order expressly abolished the divisions provided for in the Annual Budget for the fiscal year ending on June 30, 1968 —

1. Executive Division2. Socio-Economic Program Implementation Division3. Political Affairs and Placement Division4. Public Information Division5. Legal Division

as well as "all the positions listed in the current plantilla of personnel of said offices," with certain exceptions. At the same time, the Executive Order (pars. d-f) provided:

(d) That there is hereby created, effective January 1, 1968, a private and confidential staff of the Governor under his immediate control and supervision with such duties and functions as may be assigned and prescribed by him from time to time in the interest of the service.

(e) That as authorized by the Decentralization Law, there is hereby created, effective January 1, 1968, One Provincial Attorney under the Governor with an annual salary of P8,400.

(f) That there is hereby created a Personnel Division under the Office of the Governor with such duties and functions as prescribed under Rule XVII of the Civil Service Rules in relation to Section 21 of the Civil Service Act of 1959

Petitioners are Provincial Clerk eligibles, except Bancod, who is a general clerk eligible. On or about January 11 to 15, 1968, they were individually served notices of termination of their services and coincidentally, the equipment used by said petitioners was taken, transferred and redistributed to other retained offices.

In their answer filed on February 12, 1968, respondents pleaded that the reorganization of the offices of the Provincial Governor and Provincial Board had been made within the powers of the Provincial government, in order to effect economy in view of the province's deficit of P3.714 million pesos; to promote simplicity and efficiency, and to provide for more essential services and activities; that the Governor's Executive Order No. 2 had been approved and ratified by the Provincial Board on January 5, 1968, by its Resolution No. 8, while the supplemental budget to provide for the newly created positions was ratified by the Board's Resolution No. 50, of January 26, 1968; that the actions thus taken were immediately effective, without need of the approval of the Secretary of Finance; and that the abolition and creation of new positions were made in good faith, the selection of retained employees had been made on the basis of seniority and fitness as required by the Civil Service law, those retained having been appointed earlier than the petitioners. The answer also urged that the petitioners should have exhausted their administrative remedies, by appealing to the Commissioner of Civil Service.

After this case was argued in open court, one of the petitioners, Myrna Sison, formerly occupying the position of correspondence clerk, manifested in writing that she was no longer interested in the case and prayed that she be excluded therefrom.

Issue/s:

WON, the abolition of the offices held by petitioners is valid and legal.

Held/Ratio:

No, the abolition was not valid and legal. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is a well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents (Manalang vs. Quitoriano, 94 Phil. 903; Rodriguez vs. Montemayor, 94 Phil. 964; Castillo vs. Pajo, 103 Phil. 515). And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office.

As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void.

A review of the record herein satisfies us that the justifications advanced for the abolition of petitioners' offices (economy and efficiency) are but subterfuges resorted to for disguising an illegal removal of permanent civil service employees, in violation of the security of tenure guaranteed by the Constitution.

The claim of economy effectuated through the reorganization is belied by the fact that while 72 positions were abolished, 50 of these were actually vacant. Only 22 stations were occupied at the time of the reorganization, carrying total emoluments of P25,538.71 per semester, of which P6,120.00 per semester corresponds to the five remaining petitioners (Answer, Exh. 3-C). As against these 22 positions suppressed by the reorganization (Executive Order No. 2), 28 new positions were simultaneously created, with a compensation of P87,600.00 per annum, P43,800.00 per semester, for confidential personnel in the office of the Governor (Exh. Order No. 2, par. d). In addition, a Provincial Attorney and his staff (p. 2), and a Personnel Division of five members, importing P13,380.00 per semester were set up. Thus, against the suppressed items of P25,538.71, new items carrying a total appropriation of P57,180.00 per semester (or P114,360.00 annually) were created, in addition to P8,000.00 for casual laborers at the discretion of the Governor. Where the economy lies is difficult to see. Significantly, this "economy" was the same excuse advanced by the preceding administration when it attempted to eliminate civil service eligibles upon its coming into power (Ocampo, et al. vs. Duque, supra).

As to the alleged need for greater efficiency, it is well to observe that no charge of inefficiency is lodged against petitioners herein. Their efficiency is attested by their promotional appointments in 1967. What can not be glossed over is that respondent's reorganization replaced 22 civil service eligibles with 23 confidential employees. No further elaboration is required to show that in truth and in fact, what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be totally dependent upon respondents' pleasure and discretion. Thus the spirit of the Civil Service law and of the Constitution are being purposely circumvented.

The motives behind these wholesale replacements are made manifest in paragraph 10 of respondents' own Answer, where it is averred, in an attempt to justify the new positions created, that:

... These positions are indispensable to the respondent Governor, he being the elected Chief Executive of the Province and it could not be denied that his position is more political in nature and as such, it is humbly submitted, that he is entitled to a flexible compact staff of highly confidential assistants in whom he has complete trust and confidence not only in their capacity for work but also in their personal fitness and loyalty. This should be so because his executive position is a political one and as elected Governor, he is also the Chairman of the Provincial Committee of the Nacionalista Party to which he belongs. In this situation, it could not be helped that his Office should deal with his own party men on party matters. Not only that, as the Chief Executive of the Province, his office has to keep and take up official secrets of the government which should not be put in danger of being leaked out to third parties, and it is for this reason, among others, that the respondent Governor should have a flexible compact staff of highly confidential assistants.

Here is proof that the true motivation for reorganizing out the petitioners was "not only (in) their capacity for work but also (in) their personal fitness and loyalty". Political loyalty or disloyalty are not statutory nor constitutional preconditions for appointment or grounds

for separation of eligibles in the Civil Service.

As a consequence of this pronouncement, it is likewise held, that respondents have unlawfully excluded the petitioners from the enjoyment of an office to which they are entitled; and that in failing or refusing to include in the 1968-1969 budget items required to cover appropriations for salaries of petitioners, respondents have unlawfully failed or neglected the performance of an act which the law enjoins as a duty resulting from office.

ReorganizationDario v Mison, G.R. No. 81954, August 8, 1989

Facts:

On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." Among other things, Proclamation No. 3 provided:

SECTION 1. ...

The President shall give priority to measures to achieve the mandate of the people to:

(a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime;

Pursuant thereto, it was also provided:

SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption.

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.

SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.

SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its FUNDS and properties shall be transferred to the office or body to which its powers, functions and responsibilities substantially pertain.

Actually, the reorganization process started as early as February 25, 1986, when the

President, in her first act in office, called upon "all appointive public officials to submit their courtesy resignation(s) beginning with the members of the Supreme Court." Later on, she abolished the Batasang Pambansa and the positions of Prime Minister and Cabinet under the 1973 Constitution.

Since then, the President has issued a number of executive orders and directives reorganizing various other government offices, a number of which, with respect to elected local officials, has been challenged in this Court, and two of which, with respect to appointed functionaries, have likewise been questioned herein.

On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization had generated, and prescribed as "grounds for the separation/replacement of personnel,"

On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE." Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs and prescribed a new staffing pattern therefor.

Three days later, on February 2, 1987, the Filipino people adopted the new Constitution.

On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," prescribing the procedure in personnel placement. It also provided:

1. By February 28, 1988, the employees covered by Executive Order 127 and the grace period extended to the Bureau of Customs by the President of the Philippines on reorganization shall be:

a) informed of their re-appointment, or

b) offered another position in the same department or agency or

c) informed of their termination.

On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged with adjudicating appeals from removals under the above Memorandum.

Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano Pacifico Lagleva Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre, and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 individuals mentioned are the private respondents in G.R. No. 85310.

Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the deadline prescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution, specifically, the transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees' argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria in the sense that retention in the Bureau, under the Executive Order, depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered vacant." 57 The Solicitor General denies the applicability of Palma-Fernandez v. De la Paz 58

because that case supposedly involved a mere transfer and not a separation. He rejects, finally, the force and effect of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which was meant to implement the Provisional Constitution, had ceased to have force and effect upon the ratification of the 1987 Constitution, and that, under Executive Order No. 39, the dismissals contemplated were "for cause" while the separations now under question were "not for cause" and were a result of government reorganize organization decreed by Executive Order No. 127. Anent Republic Act No. 6656, he expresses doubts on the constitutionality of the grant of retroactivity therein (as regards the reinforcement of security of tenure) since the new Constitution clearly allows reorganization after its effectivity.

Issue/s:

WON, Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Government to remove career public officials it could have validly done under an "automatic" vacancy-authority and to remove them without rhyme or reason (WON, the removals conducted by Commissioner Mison in light of the reorganization as he claimed was valid – NO).

Held/Ratio:

No, reorganization must be in good faith. There is no question that the administration may validly carry out a government reorganization — insofar as these cases are concerned, the reorganization of the Bureau of Customs — by mandate not only of the Provisional Constitution, supra, but also of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-1987 revolutionary government. It should also be noted that under the present Constitution, there is a recognition, albeit implied, that a government reorganization may be legitimately undertaken, subject to certain conditions.

1. The ongoing government reorganization is in the nature of a "progressive" 60

reorganization "impelled by the need to overhaul the entire government bureaucracy" 61

following the people power revolution of 1986;

2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to deliberation, and selection of personnel for appointment under the new staffing pattern;

3. The separated employees have been, under Section 59 of Executive Order No. 127, on

mere holdover standing, "which means that all positions are declared vacant;" 62

4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987 Constitution;

5. Republic Act No. 6656 is of doubtful constitutionality.

The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:

Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shag be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted.

The Court considers the above provision critical for two reasons: (1) It is the only provision — in so far as it mentions removals not for cause — that would arguably support the challenged dismissals by mere notice, and (2) It is the single existing law on reorganization after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June 10, 1988.

It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution:

Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until the Congress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the President shall vacate their respective office(s) upon the appointment and qualification of their successors, if such appointment is made within a period of one year from the date of the inauguration of the Commonwealth of the Philippines. 65

Under Section 9, Article XVII, of the 1973 Charter:

Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors. 66

The Freedom Constitution is, as earlier seen, couched in similar language:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if

such is made within a period of one year from February 25, 1986.67

Other than references to "reorganization following the ratification of this Constitution," there is no provision for "automatic" vacancies under the 1987 Constitution.

Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure.

At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obliged to prove good faith. In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it.

As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's notice.

What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so in clearer terms, as its 1935, 1973, and 1986 counterparts had so stated.

The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization under the prior Charter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stop to those 'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of reorganization — the first, to its conferment or authorization under Proclamation No. 3 (Freedom Charter) and the second, to its implementation on its effectivity date (February 2, 1987). But as we asserted, if the intent of Section 16 of Article XVIII of the 1987 Constitution were to extend the effects of reorganization under the Freedom Constitution, it should have said so in clear terms. It is illogical why it should talk of two phases of reorganization when it could have simply acknowledged the continuing effect of the first reorganization.

Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated must be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service employees separated "for cause." In other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:

1. the separation must not be for cause, and

2. the separation must be due to any of the three situations mentioned above.

By its terms, the authority to remove public officials under the Provisional Constitution

ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. 70 It Can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution — the first stage. We are on the second stage — that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document.

This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is apparent from the Charter's own words. It also warrants our holding in Esguerra and Palma-Fernandez, in which we categorically declared that after February 2, 1987, incumbent officials and employees have acquired security of tenure, which is not a deterrent against separation by reorganization under the quondam fundamental law.

Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations under martial rule. And, of course, we also have the democratic character of the Charter itself.

What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, nevertheless, magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm and ruthless propensity that accompanies reorganizations — notwithstanding the fact that removals arising therefrom were "not for cause," and in spite of the fact that such removals would have been valid and unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary anxiety and demoralization" in the government rank and file that reorganization was causing, and prescribed guidelines for personnel action. Specifically, she said on May 28, 1986:

WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the said constitutional provision to protect career civil servants whose qualifications and performance meet the standards of service demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are separated from the government service; 71

Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of inefficiency, graft, and unfitness to render public service.*

The President's Memorandum of October 14, 1987 should furthermore be considered. We quote, in part:

Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further layoffs this year of personnel as a result of the government reorganization. 72

Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in a revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in any event, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization theory, he would still have to come to terms with the Chief

Executive's subsequent directives moderating the revolutionary authority's plenary power to separate government officials and employees.

Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. —

The transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first stage being the reorganization under Proclamation No. 3 — which had already been consummated — the second stage being that adverted to in the transitory provisions themselves — which is underway. Hence, when we spoke, in Arroyo, of reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried over reorganization under the Freedom Constitution to its 1987 counterpart.

As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under the prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same cannot be said of the reorganization inferred under the new Constitution because, precisely, the new Constitution seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to due process and no-removal-"except for cause provided by law" principles enshrined in the very same 1987 Constitution, 79 which may possibly justify removals "not for cause," there is no contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requires that removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith — a test not obviously required under the revolutionary government formerly prevailing, but a test well-established in democratic societies and in this government under a democratic Charter.

Reorganizations in this jurisdiction have been regarded as valid provided they are 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. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat sty of tenure, or otherwise not in good faith, no valid "abolition' takes place and whatever "abolition' is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds.

It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause," if by "cause" we refer to "grounds" or conditions that call for disciplinary action.**

Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case. However, under Republic Act No. 6656, we are told:

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 to a 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.

It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of it.

Reorganization of the Bureau of Customs,Lack of Good Faith in. —

The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy — except for the change of personnel — has occurred, which would have justified (an things being equal) the contested dismisses. The contention that the staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same s pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm, has not been successfully contradicted There is no showing that legitimate structural changes have been made — or a reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and simple.

The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of August 18, 1988. This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the President's directive to halt further layoffs as a consequence of reorganization. Finally, he was aware that layoffs should observe the procedure laid down by Executive Order No. 17.

We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and all, the means with which it was implemented is not. 88

Executive Order No. 127, Specific Case of. —

With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "[t]hose incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Customs may "appoint

all Bureau personnel, except those appointed by the President."

Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being Presidential appointees.

Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding in Palma-Fernandez.

That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that the positions held by them had become vacant. In Palma-Fernandez, we said in no uncertain terms:

The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. 90

It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the transitory provisions of the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith.

Resume. —

In resume, we restate as follows:

1. The President could have validly removed government employees, elected or appointed, without cause but only before the effectivity of the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-Fernandez vs. De la Paz, supra); in this connection, Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination;

2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9);

3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career civil service employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith. (Rep. Act No. 6656, supra.)

G.R. No. 83737

This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure 91 and as far as it provides for a retroactive effect, 92

runs counter to the transitory provisions of the new Constitution on removals not for

cause.

It can be seen that the Act, insofar as it provides for reinstatament of employees separated without "a valid cause and after due notice and hearing" is not contrary to the transitory provisions of the new Constitution. The Court reiterates that although the Charter's transitory provisions mention separations "not for cause," separations thereunder must nevertheless be on account of a valid reorganization and which do not come about automatically. Otherwise, security of tenure may be invoked. Moreover, it can be seen that the statute itself recognizes removals without cause. However, it also acknowledges the possibility of the leadership using the artifice of reorganization to frustrate security of tenure. For this reason, it has installed safeguards. There is nothing unconstitutional about the Act.

Dela Llana v Alba, 112 SCRA 294

Facts:

Batas Pambansa Blg. 129, entitled “An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes”, was passed. Gualberto De la Llana, a judge in Olongapo, assailed its validity because, he would be one of the judges that would be removed because of the reorganization and he said such law would contravene the constitutional provision which provides the security of tenure of judges of the courts. He averred that only the Supreme Court can remove judges not the Congress.

Issue/s:

WON, BP 129 is constitutional.

Held/Ratio:

Yes, it is constitutional.

Cabinet Bill No. 42, which later became the basis of Batas Pambansa Blg. 129, was introduced. After setting forth the background as above narrated, its Explanatory Note continues: "Pursuant to the President's instructions, this proposed legislation has been drafted in accordance with the guidelines of that report with particular attention to certain objectives of the reorganization, to wit, the attainment of more efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meeting out of justice. In consultation with, and upon a consensus of, the governmental and parliamentary leadership, however, it was felt that some options set forth in the Report be not availed of. Instead of the proposal to confine the jurisdiction of the intermediate appellate court merely to appellate adjudication, the preference has been opted to increase rather than diminish its jurisdiction in order to enable it to effectively assist the Supreme Court. This preference has been translated into one of the innovations in the proposed Bill." In accordance with the parliamentary procedure, the Bill was sponsored by the Chairman of the Committee on Justice, Human Rights and Good Government to which it was referred. Thereafter, Committee Report No. 225 was submitted by such Committee to the Batasang Pambansa recommending the approval with some amendments. In the sponsorship speech of Minister Ricardo C. Puno, there was reference to the Presidential Committee on Judicial Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial Reorganization submitted its report to the

President which contained the 'Proposed Guidelines for Judicial Reorganization.' Cabinet Bill No. 42 was drafted substantially in accordance with the options presented by these guidelines. Some options set forth in the aforesaid report were not availed of upon consultation with and upon consensus of the government and parliamentary leadership. Moreover, some amendments to the bill were adopted by the Committee on Justice, Human Rights and Good Government, to which The bill was referred, following the public hearings on the bill held in December of 1980. The hearings consisted of dialogues with the distinguished members of the bench and the bar who had submitted written proposals, suggestions, and position papers on the bill upon the invitation of the Committee on Justice, Human Rights and Good Government." Stress was laid by the sponsor that the enactment of such Cabinet Bill would, firstly, result in the attainment of more efficiency in the disposal of cases. Secondly, the improvement in the quality of justice dispensed by the courts is expected as a necessary consequence of the easing of the court's dockets. Thirdly, the structural changes introduced in the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure, are designated to suit the court system to the exigencies of the present day Philippine society, and hopefully, of the foreseeable future." 37 it may be observed that the volume containing the minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive study before the act was signed by the President on August 14, 1981. With such a background, it becomes quite manifest how lacking in factual basis is the allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is the good faith that characterized its enactment from its inception to the affixing of the Presidential signature.

Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine: "We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. ... And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith." As with the offices in the other branches of the government, so it is with the judiciary. The test remains whether the abolition is in good faith. As that element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more apparent. The concurring opinion of Justice Laurel in Zandueta v. De la Costa cannot be any clearer. This is a quo warranto proceeding filed by petitioner, claiming that he, and not respondent, was entitled to he office of judge of the Fifth Branch of the Court of First Instance of Manila. There was a Judicial Reorganization Act in 1936, a year after the inauguration of the Commonwealth, amending the Administrative Code to organize courts of original jurisdiction known as the Courts of First Instance Prior to such statute, petitioner was the incumbent of such branch. Thereafter, he received an ad interim appointment, this time to the Fourth Judicial District, under the new legislation. Unfortunately for him, the Commission on Appointments of then National Assembly disapproved the same, with respondent being appointed in his place. He contested the validity of the Act insofar as it resulted in his being forced to vacate his position This Court did not rule squarely on the matter. His petition was dismissed on the ground of estoppel. Nonetheless, the separate concurrence of Justice Laurel in the result reached, to repeat, reaffirms in no uncertain terms the standard of good faith to preclude any doubt as to the abolition of an inferior court, with due recognition of the security of

tenure guarantee. Thus: " I am of the opinion that Commonwealth Act No. 145 in so far as it reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and constitutional. This conclusion flows from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of the Constitution vests in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tenure of all the judges. The principles embodied in these two sections of the same article of the Constitution must be coordinated and harmonized. A mere enunciation of a principle will not decide actual cases and controversies of every sort.

It was pointed out by Justice Laurel that the mere creation of an entirely new district of the same court is valid and constitutional. Such conclusion flowing "from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions." The challenged statute creates an intermediate appellate court, regional trial courts, metropolitan trial courts of the national capital region, 51 and other metropolitan trial courts, municipal trial courts in cities, as well as in municipalities, and municipal circuit trial courts. There is even less reason then to doubt the fact that existing inferior courts were abolished. For the Batasang Pambansa, the establishment of such new inferior courts was the appropriate response to the grave and urgent problems that pressed for solution. Certainly, there could be differences of opinion as to the appropriate remedy.

To be more specific, petitioners contend that the abolition of the existing inferior courts collides with the security of tenure enjoyed by incumbent Justices and judges under Article X, Section 7 of the Constitution. There was a similar provision in the 1935 Constitution. It did not, however, go as far as conferring on this Tribunal the power to supervise administratively inferior courts. Moreover, this Court is em powered "to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal." Thus it possesses the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not render advisory opinions. No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power, Rather

what is sought to be achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing tulle inferior courts, the power of removal of the present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernidble except to those predisposed to view it with distrust.

Nor is there anything novel in the concept that this Court is called upon to reconcile or harmonize constitutional provisions. To be specific, the Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. As noted in the preceding paragraph, the termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence. That is why it has long been well-settled under the constitutional system we have adopted that this Court cannot, whenever appropriate, avoid the task of reconciliation. As Justice Laurel put it so well in the previously cited Angara decision, while in the main, "the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government, the overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins." It is well to recall another classic utterance from the same jurist, even more emphatic in its affirmation of such a view, moreover buttressed by one of those insights for which Holmes was so famous "The classical separation of government powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Motesquieu or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down 'with mathematical precision and divide the branches into water-tight compartments' not only because 'the great ordinances of the Constitution do not establish and divide fields of black and white but also because 'even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.'"

There are other objections raised but they pose no difficulty. Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is quite clear. The questioned provisions reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges, municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such receive such compensation and allowances as may be authorized by the President along the guidelines set forth in Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." The existence of a standard is thus clear. The basic postulate that underlies the doctrine of non-delegation is that it is the legislative body which is entrusted with the competence to make laws and to alter and repeal them, the test being the completeness of the statue in all its terms and provisions when enacted. As pointed out in Edu v. Ericta: “ To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may

be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole."The undeniably strong links that bind the executive and legislative departments under the amended Constitution assure that the framing of policies as well as their implementation can be accomplished with unity, promptitude, and efficiency. There is accuracy, therefore, to this observation in the Free Telephone Workers Union decision: "There is accordingly more receptivity to laws leaving to administrative and executive agencies the adoption of such means as may be necessary to effectuate a valid legislative purpose. It is worth noting that a highly-respected legal scholar, Professor Jaffe, as early as 1947, could speak of delegation as the 'dynamo of modern government.'" He warned against a "restrictive approach" which could be "a deterrent factor to much-needed legislation." Further on this point from the same opinion" Another objection based on the absence in the statue of what petitioners refer to as a "definite time frame limitation" is equally bereft of merit. They ignore the categorical language of this provision: "The Supreme Court shall submit to the President, within thirty (30) days from the date of the effectivity of this act, a staffing pattern for all courts constituted pursuant to this Act which shall be the basis of the implementing order to be issued by the President in accordance with the immediately succeeding section." The first sentence of the next section is even more categorical: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President." Certainly petitioners cannot be heard to argue that the President is insensible to his constitutional duty to take care that the laws be faithfully executed. In the meanwhile, the existing inferior courts affected continue functioning as before, "until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." There is no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold office." No fear need be entertained by incumbents whose length of service, quality of performance, and clean record justify their being named anew, in legal contemplation without any interruption in the continuity of their service. It is equally reasonable to assume that from the ranks of lawyers, either in the government service, private practice, or law professors will come the new appointees. In the event that in certain cases a little more time is necessary in the appraisal of whether or not certain incumbents deserve reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its implementation by the Executive.

It is a cardinal article of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or impliedly certain powers. Those they exercise not for their own benefit but for the body politic. The Constitution does not speak in the language of ambiguity: "A public office is a public trust." That is more than a moral adjuration It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is from that standpoint that the security of tenure provision to assure judicial independence is to be viewed. It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. The judges may be guaranteed a fixed tenure of office during good behavior, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be nothing more than a myth or an empty Ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress — we do not say unlimited but as herein exercised — to reorganize inferior courts." That is to recall one of

the greatest Common Law jurists, who at the cost of his office made clear that he would not just blindly obey the King's order but "will do what becomes [him] as a judge." So it was pointed out in the first leading case stressing the independence of the judiciary, Borromeo v. Mariano, The ponencia of Justice Malcolm Identified good judges with "men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government." There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious consequences to the administration of justice. It does not follow that the abolition in good faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor should there be any fear that less than good faith will attend the exercise be of the appointing power vested in the Executive. It cannot be denied that an independent and efficient judiciary is something to the credit of any administration. Well and truly has it been said that the fundamental principle of separation of powers assumes, and justifiably so, that the three departments are as one in their determination to pursue the Ideals and aspirations and to fulfilling the hopes of the sovereign people as expressed in the Constitution. There is wisdom as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, a decision promulgated almost half a century ago: "Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department or the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act." To that basic postulate underlying our constitutional system, this Court remains committed.

Section 11, Article VIII, 1987 Constitution:The Members of the Supreme Court and judges of the lower court shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the issues in the case and voted in thereon.

Biraogo v Truth Commission, G.R. No. 192935, & 193036 December 7, 2010

Facts:Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor. 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).

Nature of the Truth Commission 

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.

 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.” 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. “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.”

 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.  Issue/s: (a) WON, 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.”

(b) WON, 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.

  Held/Ratio:

Power of the President to Create the Truth Commission 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.

 a) No, it cannot legitimize the creation of the PTC, however the President has the power to create ad hoc committees – such the PTC. 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, 

 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. 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?

 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.

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. 

 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.

 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. 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. In a case, 

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.

 b) No – 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.” 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. 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. 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.” 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.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. Even respondents themselves admit that the commission is bereft of any quasi-judicial power.

However, PTC cannot be succesfully created for it violated equal protection clause as it targeted only the past administration.

AbandonmentSummers v Ozaeta, G.R. No. L-1534, October 25, 1948Facts:

Summers was a cadastral judge who received an adterim appointment for the position of judge-at-large. He then assumed office as a judge-at-large. However, such appointment was disapproved by the Commission on Appointments. He wanted to go back being a cadastral judge invoking section 9, Article VIII, of the Constitution, that he is entitled to continue as cadastral judge during good behavior until he reaches the age of seventy years or becomes incapacitated to discharge the duties of said office; that the positions of cadastral judge and judge-at-large are not incompatible and that therefore by the acceptance of the latter office he did not cease to be a cadastral judge, especially where his ad interim appointment was disapproved by the Commission on Appointments.

Issue/s:

WON, Summers can validly resumed as a cadastral judge.

Held/Ratio:

No. There can be no doubt about the constitutional right of member of the Supreme Court and judge of inferior court to hold offices during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. We believe, that said right is waivable and should be construed without prejudice to the legal effects of abandonment in proper cases.

We do not hesitate to rule that petitioner's voluntary acceptance of the position of judge-

at-large consequent upon his taking of the oath of office on February 16, 1946, amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. But it is maintained that an ad interim appointment is merely temporary and the petitioner cannot be said to have vacated the office of cadastral judge in view of the rejection of said appointment by the Commission on Appointments. This point has to be resolved adversely to the petitioner, if we are to be consistent with the decision in Zandueta vs. De la Costa, supra, wherein it was held that "when a judge of first instance, presiding over a branch of a Court of First Instance of a judicial district by virtue of a legal and valid appointment, accepts another appointment to preside over the same branch of the same Court of First Instance, in addition to another court of the same category, both of which belong to a new judicial district formed by the addition of another Court of First Instance to the old one, enters into the discharge of the functions of his new office and receives the corresponding salary, he abandons his old office and cannot claim to be entitled to repossess it or question the constitutionality of the law by virtue of which his new appointment has been issued; and, said new appointment having been disapproved by the commission on Appointments of the National Assembly, neither can he claim to continue occupying the office conferred upon him by said new appointment, having ipso jure ceased in the discharge of the functions thereof.

Moreover, an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII, of the Constitution, which provides that the " President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an "acting" appointment which is merely temporary, good until another permanent appointment is issued. Thus, the decision in Santiago vs. Agustin, 46 Phil. 1, cannot be invoked by the petitioner because Santiago, while being a member of the municipal board of Manila, was designated only "Acting Mayor" and this Court held that he did not thereby vacate his first office. Indeed, the distinction between an acting designation and a permanent appointment may be gathered from the following passage of the decision: "Mr. Santiago took the oath of office and qualified for the position of Acting Mayor of the City of Manila. He indicated to the Municipal Board his intention to fill the new office temporarily and then return to his position as member of the Municipal Board. Mr. Santiago never took the oath of office as Mayor of the City of Manila. He never qualified for the office of Mayor. He never accepted the office of Mayor. He did not at any time disclose an intention to abandon the office of member of the Municipal Board. There was no resignation, express or implied, from the latter office.

In the case at bar, the petitioner accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an "acting" judge-at-large. He cannot argue that said acceptance was conditioned upon the approval of the appointment by the Commission on Appointments, for, as stated in Zandueta vs. De la Costa, supra, the petitioner "knew, or at least he should know, that his ad interim appointment was subject to the approval of the Commission on Appointments of the National Assembly and that if said commission were to disapprove the same, it would become ineffective and he would cease discharging the office.

In a situation faced by the petitioner, the safer course to follow would have been for him to await the confirmation of the ad interim appointment before qualifying for and

assuming the position of judge-at-large. A hasty acceptance on the part of an ad interim appointee, in the anxiety to enjoy either the higher honor or better material advantages of a second office, may lead to seemingly unfair consequences for which the appointing power should not be blamed. While in the ordinary course of things, an appointee certainly has the right to rely on his record and expect the approval of his appointment, it is nevertheless the better part of wisdom for one always to adopt the surer method which will, furthermore, protect him against any design, intentional or otherwise, to oust him from an office the tenure of which is fixed by the Constitution.

Under the comparison presented by the petitioner, the situation before us is undoubtedly not one wherein he may appropriately hold two compatible offices at one time such, for instance, as the positions of town recorder and county and probate judge, but one wherein he cannot legally hold two offices of similar category at the same time, like two positions of judge of first instance. At least, the petitioner does not contend that he can simultaneously occupy the position of cadastral judge and the office of judge-at-large, for this would of course be clearly against public policy. The law has created a fixed number of cadastral judges (Republic Act No. 156 and Executive Order No. 94, at P8,400 per annum each), and a fixed number of judge-at-large (Republic Act No. 156 and Executive Order No. 94, at P9,000 per annum each), and considerations of public interest must have been the basis thereof. If the petitioner can be a cadastral judge and a judge-at-large at the same time, the judicial positions as specified and created by law will be diminished by one. Authority in support of our proposition is not wanting. In State vs. Jones, 150 Wis., 572; 110 N. W., 431, it was held: "That realtor in a contest by quo warranto for the office of police justice of the city of Watertown was held to have no right to that office, because at the time he was holding the office of justice of the peace in the same city. The court said: 'We consider that the two offices are clearly incompatible with each other, and that one person cannot and should not hold both of them at the same time. In the plainest terms the charter gives the city four judicial officers of the grade of justice of the peace while, if the realtor could make good his right to the office of police justice it would, in fact, have but three.' This is a strong and authoritative declaration of public policy and it is said elsewhere that the incompatibility 'which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper from consideration of public policy for one person to retain both.' (Mechem, Pub. Off., section 422 and cases.) Preliminary examinations in criminal cases may be held before a justice of the peace, country judge or court commissioner. Chapter 195, St. 1898. The consolidation in one person of the offices of country judge and justice of the peace diminishes the number of examining magistrates by one." And is State ex rel. Crawford vs. Anderson, 155 Iowa, 271, 136 N. W., 128, the same rule was stressed: "It is apparent from these several provisions of the law that the lawmaking power considered it for the public good and convenience to have three judicial officers in every township containing within its geographical limits an incorporated city, town, and that in criminal prosecutions under statute, these officers should have the same jurisdiction. And if this be true, can this plain purpose be thwarted by permitting one man to hold two of these offices? We think not, because the two offices are, in our judgment, incompatible when viewed in the light of the public policy expressed in the statutes creating them and defining their powers and duties. To hold otherwise would be to say that, in certain instances, there should be but two magistrates in the township, and it would become wholly without force and effect.

Incompatible office

ResignationOffice of the President v Cataquiz, G.R. No. 183445 September 14, 2011Facts:

Respondent Calixto R. Cataquiz (Cataquiz) was appointed as General Manager of the Laguna Lake Development Authority (LLDA). On April 1, 2003, a majority of the members of the Management Committee and the rank-and-file employees of the LLDA submitted to then Department of Environment and Natural Resources (DENR) Secretary Elisea G. Gozun (Secretary Gozun) their Petition for the Ouster of Cataquiz as LLDA General Manager on the grounds of corrupt and unprofessional behavior and management incompetence. In response, Secretary Gozun ordered the formation of an investigating team to conduct an inquiry into the allegations against Cataquiz. The results of the fact-finding activity were submitted in a Report dated May 21, 2003 in which it was determined that respondent may be found guilty for acts prejudicial to the best interest of the government and for violations of several pertinent laws and regulations. Consequently, the investigating team recommended that the case be forwarded to the Presidential Anti-Graft Commission (PAGC) for proper investigation.  In her Memorandum for the President dated May 23, 2003, Secretary Gozun reported that there is prima facie evidence to support some accusations against Cataquiz which may be used to pursue an administrative or criminal case against him. It was further noted that respondent lost his leadership credibility. In light of these, she recommended that Cataquiz be relieved from his position and that he be investigated by PAGC. On June 6, 2003, in a letter to then President Gloria Macapagal-Arroyo (President Arroyo), the Concerned Employees of the Laguna Lake Development Authority (CELLDA), a duly organized employees union of the LLDA, expressed their support for the petition to oust Cataquiz and likewise called for his immediate replacement.  Thereafter, CELLDA formally filed its Affidavit Complaint dated September 5, 2003 before PAGC charging Cataquiz with violations of Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act), Executive Order (E.O.) No. 292 (The Administrative Code) and R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) (corrupt practices: directly transacted with fishpen operators and authorized payment of fishpen fees based on negotiated prices in violation of LLDA, condoned/granted reductions of fines and penalties and the like)

On December 5, 2003, PAGC issued a Resolution recommending to the President that the penalty of dismissal from the service with the accessory penalties of disqualification for re-employment in the public service and forfeiture of government retirement benefits be imposed upon Cataquiz. Thereafter, on December 8, 2003, Cataquiz was replaced by Fatima A.S. Valdez, who then assumed the position of Officer-in-Charge/General Manager and Chief Operating Officer of the LLDA by virtue of a letter of appointment dated December 3, 2003 issued by President Arroyo. 

Issue/s: 

(1) Whether the dismissal by the Ombudsman of the charges against Cataquiz serves as a bar to the decision of the OP; 

(2) Whether Cataquiz can be made to suffer the accessory penalties of disqualification from re-employment in the public service and forfeiture of government

retirement benefits, despite his dismissal from the LLDA prior to the issuance by the PAGC and the OP of their decision and resolution, respectively;

Held/Ratio: 

1) The dismissal of the criminal case against Respondent does not bar the finding of administrative liability.  Cataquiz claims that the dismissal by the Ombudsman of the case against him constitutes the law of the case between him and the OP which necessitates the dismissal of the petition before this Court. The Ombudsman Resolution dated November 30, 2004 recommending the dismissal of the charges against him pertains only to the criminal case against him and not the administrative case, which is the subject matter of the case at bench. As can be gleaned from the Resolution, the charges referred to by the Ombudsman were for respondent’s alleged violation of Section 3(b) and (c) of R.A. No. 3019 or for malversation of public funds and fraud against the public treasury.

It is a basic rule in administrative law that public officials are under a three-fold responsibility for a violation of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and administratively liable for the same act. Obviously, administrative liability is separate and distinct from penal and civil liability. In the case of People v. Sandiganbayan, the Court elaborated on the difference between administrative and criminal liability: 

The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may give rise to criminal as well as administrative liability.

 Accordingly, the dismissal of the criminal case by the Ombudsman does not foreclose administrative action against Cataquiz. His absolution from criminal liability is not conclusive upon the OP, which subsequently found him to be administratively liable. The pronouncement made by the Ombudsman cannot serve to protect the respondent from further administrative prosecution. A contrary ruling would be unsettling as it would undermine the very purpose of administrative proceedings, that is, to protect the public service and uphold the time-honored principle that a public office is a public trust. 2) Respondent can be imposed with the accessory penalties. Removal or resignation from office is not a bar to a finding of administrative liability. Despite his removal from his position, Cataquiz can still be held administratively liable for acts committed during his service as General Manager of the LLDA and he can be made to suffer the corresponding penalties. The subsequent finding by the OP that Cataquiz is guilty of the charges against him with the imposition of the penalty of dismissal and its corresponding accessory penalties is valid. It cannot be disputed that Cataquiz was a presidential appointee. As such, he was under the direct disciplining authority of the President who could legitimately have him dismissed from service. This is pursuant to the well-established principle that the President’s power to remove is inherent in his power to appoint. Therefore, it is well within

the authority of the President to order the respondent’s dismissal.

Cataquiz argues that his removal has rendered the imposition of the principal penalty of dismissal impossible. Consequently, citing the rule that the accessory follows the principal, he insists that the accessory penalties may no longer be imposed on him.

The respondent is mistaken.  In the case of In Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico, despite the resignation from government service by the employee found guilty of grave misconduct, disgraceful and immoral conduct and violation of the Code of Conduct for Court Personnel, thereby making the imposition of the penalty of dismissal impossible, this Court nevertheless imposed the accessory penalties of forfeiture of benefits with prejudice to re-employment in any branch or instrumentality of government. Similarly instructive is the case of Pagano v. Nazarro, Jr. where the Court held that: 

The instant case is not moot and academic, despite the petitioner’s separation from government service. Even if the most severe of administrative sanctions – that of separation from service – may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits.

 Based on the foregoing, it is clear that the accessory penalties of disqualification

from re-employment in public service and forfeiture of government retirement benefits can still be imposed on the respondent, notwithstanding the impossibility of effecting the principal penalty of dismissal because of his removal from office.

Office of the Ombudsman v Andutan, G.R. No. 164679 July 27, 2011 Facts:Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-career officials or those occupying political positions to vacate their positions effective July 1, 1998. On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF.

 On September 1, 1999, Andutan, together with Belicena, former Undersecretary, DOF; Malonzo, Tax Specialist I, DOF; Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia); Lapid, Vice-President, Steel Asia; Lorenzana, President and Chief Operating Officer, Steel Asia; and Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.

 The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others.

 On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits. Only Malonzo complied with the order, prompting the

Ombudsman to set a Preliminary Conference on March 13, 2000.  

Upon the respondents’ failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted for resolution.  On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations.

Issue/s:I.  Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative investigation a year after the act was committed?II. Does Andutan’s resignation render moot the administrative case filed against him?

Held/Ratio: I. No, provisions of Section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an investigation a year after the supposed act was committed.  

The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. In Office of the Ombudsman v. De Sahagun, the Court, speaking through Justice Austria-Martinez, held:

 [W]ell-entrenched is the rule that administrative offenses do not prescribe. Administrative offenses by their very nature pertain to the character of public officers and employees. In disciplining public officers and employees, the object sought is not the punishment of the officer or employee but the improvement of the public service and the preservation of the public’s faith and confidence in our government [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001)].

 The use of the word "may" clearly shows that it is directory in

nature and not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis supplied)

 The declaration of the CA in its assailed decision that while as a

general rule the word "may" is directory, the negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on statutory construction. [emphases and underscoring supplied]  

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an

administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to conduct the administrative investigation.

 However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsman’s authority to institute an administrative complaint against a government employee who had already resigned. On this issue, we rule in Andutan’s favor. II. Yes, Andutan’s resignation divests the Ombudsman of its right to institute an administrative complaint against him. Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at the time the case was filed.  To recall, we have held in the past that a public official’s resignation does not render moot an administrative case that was filed prior to the official’s resignation. In Pagano v. Nazarro, Jr., we held that: 

In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the service does not render moot the administrative case against him.  Resignation is not a way out to evade administrative liability when facing administrative sanction .     The resignation of a public servant does not preclude the finding of any administrative liability to which he or she shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied]  Likewise, in Baquerfo v. Sanchez, we held: 

Cessation from office of respondent by resignation neither warrants the dismissal of the administrative complaint filed against him while he was still in the service nor does it render said administrative case moot and academic. The jurisdiction that was this Court’s at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent’s resignation does not preclude the finding of any administrative liability to which he shall still be answerable. 

 However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court found that the public officials – subject of the administrative cases – resigned, either to prevent the continuation of a case already filed or to pre-empt the imminent filing of one. Here, neither situation obtains. The Ombudsman’s general assertion that Andutan pre-empted the filing of a case against him by resigning, since he “knew for certain that the investigative and disciplinary arms of the State would eventually reach him”] is unfounded. First , Andutan’s resignation was neither his choice nor of his own doing; he was forced to resign. Second , Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on

September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find reason in the Ombudsman’s sweeping assertions in light of these facts.

 What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the administrative case against him. Additionally, even if we were to accept the Ombudsman’s position that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the administrative case. Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman’s interpretation that “[a]s long as the breach of conduct was committed while the public official or employee was still in the service x x x a public servant’s resignation is not a bar to his administrative investigation, prosecution and adjudication.” If we agree with this interpretation, any official – even if he has been separated from the service for a long time – may still be subject to the disciplinary authority of his superiors, ad infinitum.

We believe that this interpretation is inconsistent with the principal motivation of the law – which is to improve public service and to preserve the public’s faith and confidence in the government, and not the punishment of the public official concerned. Likewise, if the act committed by the public official is indeed inimical to the interests of the State, other legal mechanisms are available to redress the same.  The possibility of imposing accessory penalties does not negate the Ombudsman’s lack of jurisdiction. The Ombudsman suggests that although the issue of Andutan’s removal from the service is moot, there is an “irresistible justification” to “determine whether or not there remains penalties capable of imposition, like bar from re-entering the public service and forfeiture of benefits.” Otherwise stated, since accessory penalties may still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the inapplicability of the principal penalty of removal from office.  We find several reasons that militate against this position.

 First, although we have held that the resignation of an official does not render an administrative case moot and academic because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro, Jr., indeed, we held: 

 A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner’s separation from government service.   Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits. [emphasis and underscoring supplied]

  “that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the service does not render moot the

administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction.” Our position that accessory penalties are still imposable – thereby negating the mootness of the administrative complaint – merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of the administrative complaint if Pagano’s filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:

 At the time petitioner filed her certificate of candidacy, petitioner

was already notified by the Provincial Treasurer that she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage of P1,424,289.99 in her accountabilities.  Moreover, she had already filed her answer.  To all intents and purposes, the administrative proceedings had already been commenced at the time she was considered separated from service through her precipitate filing of her certificate of candidacy.     Petitioner’s bad faith was manifest when she filed it, fully knowing that administrative proceedings were being instituted against her as part of the procedural due process in laying the foundation for an administrative case. (emphasis and underscoring supplied)

Plainly, our justification for the continuation of the administrative case – notwithstanding Pagano’s resignation – was her “bad faith” in filing the certificate of candidacy, and not the availability of accessory penalties.

 Second, we agree with the Ombudsman that “fitness to serve in public office x x x

is a question of transcendental [importance]” and that “preserving the inviolability of public office” compels the state to prevent the “re-entry [to] public service of persons who have x x x demonstrated their absolute lack of fitness to hold public office.” However, the State must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated, under the Ombudsman’s theory, the administrative authorities may exercise administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly severed his ties with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to the law and the public policy behind it.  

Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office, but had already resigned or retired therefrom. Under the “threefold liability rule,” the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. Even if the Ombudsman may no longer file an administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal and civil cases to vindicate Andutan’s alleged transgressions. In fact, here, the Ombudsman – through the FFIB – filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest. CONCLUSION 

Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their constituencies well.

 

While we commend the Ombudsman’s resolve in pursuing the present case for violations allegedly committed by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman’s factual findings.  

RemovalOffice of the President v Cataquiz, G.R. No. 183445 September 14, 2011Respondent Calixto R. Cataquiz (Cataquiz) was appointed as General Manager of the Laguna Lake Development Authority (LLDA). On April 1, 2003, a majority of the members of the Management Committee and the rank-and-file employees of the LLDA submitted to then Department of Environment and Natural Resources (DENR) Secretary Elisea G. Gozun (Secretary Gozun) their Petition for the Ouster of Cataquiz as LLDA General Manager on the grounds of corrupt and unprofessional behavior and management incompetence. In response, Secretary Gozun ordered the formation of an investigating team to conduct an inquiry into the allegations against Cataquiz. The results of the fact-finding activity were submitted in a Report dated May 21, 2003 in which it was determined that respondent may be found guilty for acts prejudicial to the best interest of the government and for violations of several pertinent laws and regulations. Consequently, the investigating team recommended that the case be forwarded to the Presidential Anti-Graft Commission (PAGC) for proper investigation.  In her Memorandum for the President dated May 23, 2003, Secretary Gozun reported that there is prima facie evidence to support some accusations against Cataquiz which may be used to pursue an administrative or criminal case against him. It was further noted that respondent lost his leadership credibility. In light of these, she recommended that Cataquiz be relieved from his position and that he be investigated by PAGC. On June 6, 2003, in a letter to then President Gloria Macapagal-Arroyo (President Arroyo), the Concerned Employees of the Laguna Lake Development Authority (CELLDA), a duly organized employees union of the LLDA, expressed their support for the petition to oust Cataquiz and likewise called for his immediate replacement.  Thereafter, CELLDA formally filed its Affidavit Complaint dated September 5, 2003 before PAGC charging Cataquiz with violations of Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act), Executive Order (E.O.) No. 292 (The Administrative Code) and R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) (corrupt practices: directly transacted with fishpen operators and authorized payment of fishpen fees based on negotiated prices in violation of LLDA, condoned/granted reductions of fines and penalties and the like)

On December 5, 2003, PAGC issued a Resolution recommending to the President that the penalty of dismissal from the service with the accessory penalties of disqualification for re-employment in the public service and forfeiture of government retirement benefits be imposed upon Cataquiz. Thereafter, on December 8, 2003, Cataquiz was replaced by Fatima A.S. Valdez, who then assumed the position of Officer-in-Charge/General Manager and Chief Operating Officer of the LLDA by virtue of a letter of appointment dated December 3, 2003 issued by President Arroyo.

 

Issue/s: 

(1) Whether the dismissal by the Ombudsman of the charges against Cataquiz serves as a bar to the decision of the OP; 

(2) Whether Cataquiz can be made to suffer the accessory penalties of disqualification from re-employment in the public service and forfeiture of government retirement benefits, despite his dismissal from the LLDA prior to the issuance by the PAGC and the OP of their decision and resolution, respectively;

Held/Ratio: 

1) The dismissal of the criminal case against Respondent does not bar the finding of administrative liability.  Cataquiz claims that the dismissal by the Ombudsman of the case against him constitutes the law of the case between him and the OP which necessitates the dismissal of the petition before this Court. The Ombudsman Resolution dated November 30, 2004 recommending the dismissal of the charges against him pertains only to the criminal case against him and not the administrative case, which is the subject matter of the case at bench. As can be gleaned from the Resolution, the charges referred to by the Ombudsman were for respondent’s alleged violation of Section 3(b) and (c) of R.A. No. 3019 or for malversation of public funds and fraud against the public treasury.

It is a basic rule in administrative law that public officials are under a three-fold responsibility for a violation of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and administratively liable for the same act. Obviously, administrative liability is separate and distinct from penal and civil liability. In the case of People v. Sandiganbayan, the Court elaborated on the difference between administrative and criminal liability: 

The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may give rise to criminal as well as administrative liability.

 Accordingly, the dismissal of the criminal case by the Ombudsman does not foreclose administrative action against Cataquiz. His absolution from criminal liability is not conclusive upon the OP, which subsequently found him to be administratively liable. The pronouncement made by the Ombudsman cannot serve to protect the respondent from further administrative prosecution. A contrary ruling would be unsettling as it would undermine the very purpose of administrative proceedings, that is, to protect the public service and uphold the time-honored principle that a public office is a public trust. 2) Respondent can be imposed with the accessory penalties. Removal or resignation from office is not a bar to a finding of administrative liability. Despite his removal from his position, Cataquiz can still be held administratively liable for

acts committed during his service as General Manager of the LLDA and he can be made to suffer the corresponding penalties. The subsequent finding by the OP that Cataquiz is guilty of the charges against him with the imposition of the penalty of dismissal and its corresponding accessory penalties is valid. It cannot be disputed that Cataquiz was a presidential appointee. As such, he was under the direct disciplining authority of the President who could legitimately have him dismissed from service. This is pursuant to the well-established principle that the President’s power to remove is inherent in his power to appoint. Therefore, it is well within the authority of the President to order the respondent’s dismissal.

Cataquiz argues that his removal has rendered the imposition of the principal penalty of dismissal impossible. Consequently, citing the rule that the accessory follows the principal, he insists that the accessory penalties may no longer be imposed on him.

The respondent is mistaken.  In the case of In Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico, despite the resignation from government service by the employee found guilty of grave misconduct, disgraceful and immoral conduct and violation of the Code of Conduct for Court Personnel, thereby making the imposition of the penalty of dismissal impossible, this Court nevertheless imposed the accessory penalties of forfeiture of benefits with prejudice to re-employment in any branch or instrumentality of government. Similarly instructive is the case of Pagano v. Nazarro, Jr. where the Court held that: 

The instant case is not moot and academic, despite the petitioner’s separation from government service. Even if the most severe of administrative sanctions – that of separation from service – may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits.

 Based on the foregoing, it is clear that the accessory penalties of disqualification

from re-employment in public service and forfeiture of government retirement benefits can still be imposed on the respondent, notwithstanding the impossibility of effecting the principal penalty of dismissal because of his removal from office.

In re Gonzales, 160 SCRA 771

Facts:

An indorsement letter from Mr. Gonzalez forwarding to Mr. Fernan a letter-complaint with enclosure of the Concerned Employees of the SC. Mr. Fernan brought this indorsement to the attention of the Court en banc because of its important implications of policy raised by said 1st indorsement.

The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Cuenco addressed to Hon. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No.

3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention.

Issue/s:

Can a disbarment be made against Mr. Fernan, a member of the SC?

Held/Ratio:

No. It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms. A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office.

The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms:

There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id .), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id . and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id .), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied)

This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan, 1 the Court said:

The broad power of the New Constitution vests the respondent court with jurisdiction over "public officers and employees, including those in government-owned or controlled corporations." There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides:

Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of,

culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption."

Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law.

Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that "judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)." The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance with law" may not prosper. 2

The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are substantially reproduced in Article XI of the 1987 Constitution:

Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Sec. 3 xxx xxx xxx

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.

It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and

enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings.

The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court.

It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings.

Recall

PrescriptionUnabia v City Mayor, 99 Phil. 253

Facts:

Petitioner was a foreman, Group Disposal, Office of the City Health Officer, Cebu City, at P3.90 per day. On June 16, 1953, the City Mayor removed him from the service and his place was taken by Perfecto Abellana, and latter by Pedro E. Gonzales. Before June 16, 1953, the Group Disposal Division, including personnel, was transferred from the City Health Department to the Office of the City Engineer. In April, 1954, Petitioner sought to be reinstated but his petition was not headed by the Respondents.

On the basis of the above facts, the Court of First Instance of Cebu held that Petitioner is a person in the Philippine Civil Service, pertaining to the unclassified service (section 670, Revised Administrative Code as amended), and his removal from his position is a violation of section 694 of the Revised Administrative Code and section 4 of Art XII of the Constitution. The court further held that the notation at the bottom of Petitioner’s appointment to the effect that his appointment is “temporary pending report from the Government Service Insurance System as to the appointee’s physical and medical examination” did not make his appointment merely temporary.

Issue/s:

WON, petitioner could be allowed to claim the remedy as he being considered as having abandoned his office.

Held/Ratio:

No, he was deemed to have abandoned his office for his inaction. There is no reason for excluding persons in the unclassified service from the benefits extended to those belonging to the classified service. Both are expressly declared to belong to the Civil Service hence, the same rights and privileges should be accorded to both. Persons in the unclassified service are so designated because the nature of their work and qualifications are not subject to classification, which is not true of those appointed to the classified service. This cannot be a valid reason for denying privileges to the former that are granted the latter.

As the removal of Petitioner was made without investigation and without cause, said

removal is null and void and Petitioner is entitled to be reinstated to the position from which he was removed.

If an employee is illegally dismissed, he may conform to such illegal dismissal or acquiesce therein, or by his inaction and by sleeping on his rights he may in law be considered as having abandoned the office to which he is entitled to be reinstated. These defenses are valid defenses to an action for reinstatement. To that effect is our decision in the case of Mesias vs. Jover, et al., 97 Phil., 899, decided November 22, 1955. In that case we cited with approval Nicolas vs. United States, 66 L. Ed. 133, and the following ruling therein contained:

“A person illegally dismissed from office is not thereby exonerated from the obligation to take steps for his own protection, and may not for an unreasonable length of time, acquiesce to the order of removal and then sue to recover the salary attached to the position. In case of unreasonable delay he may be held to have abandoned title to the office and any right to recover its emoluments.” (Mesias vs. Jover, supra.)

Difficulty in applying the principle lies in the fact that the law has not fixed any period which may be deemed to be considered as an abandonment of office. In the abovecited case decided by the Federal Supreme Court of the United States, 11 months was considered an unreasonable delay amounting to abandonment of office and of the right to recover its emoluments. However, we note that in actions of quo warranto involving right to an office, the action must be instituted within the period of one year. This has been the law in the island since 1901, the period having been originally fixed in section 216 of the Code of Civil Procedure (Act No. 190). We find this provision to be an expression of policy on the part of the State that persons claiming a right to an office of which they are illegally dispossessed should immediately take steps to recover said office and that if they do not do so within a period of one year, they shall be considered as having lost their right thereto by abandonment. There are weighty reasons of public policy and convenience that demand the adoption of a similar period for persons claiming rights to positions in the civil service. There must be stability in the service so that public business may be unduly retarded; delays in the statement of the right to positions in the service must be discouraged. The following considerations as to public officers, by Mr. Justice Bengzon, may well be applicable to employees in the civil service:

“Furthermore, constitutional rights may certainly be waived, and the inaction of the officer for one year could be validly considered as waiver, i.e., a renunciation which no principle of justice may prevent, he being at liberty to resign his position anytime he pleases.

“And there is good justification for the limitation period; it is not proper that the title to public office should be subjected to continued uncertainly, and the peoples’ interest requires that such right should be determined as speedily as practicable.” (Tumulak vs. Egay, 46 Off. Gaz., [8], 3693, 3695.)

Further, the Government must be immediately informed or advised if any person claims to be entitled to an office or a position in the civil service as against another actually holding it, so that the Government may not be faced with the predicament of having to pay two salaries, one, for the person actually holding the office, although illegally, and another, for one not actually rendering service although entitled to do so. We hold that in view of the policy of the State contained in the law fixing the period of one year within which actions for quo warranto may be instituted, any person claiming right to a position in the civil service should also be required to file his petition for reinstatement within the period of one year, otherwise he is thereby considered as having abandoned his office.

One other point, merely procedural, needs to be considered. This is the fact that the objection as to the delay in filing the action is raised for the first time in this Court, not having been raised in the court below. The above circumstance (belated objection) would bar the consideration if it were a defense merely. However, we consider it to be essential

to the Petitioner’s right of action that the same is filed within a year from the illegal removal. The delay is not merely a defense which may be interposed against it subject to waiver. It is essential to Petitioner’s cause of action and may be considered even at this stage of the action.

“We would go farther by holding that the period fixed in the rule is a condition precedent to the existence of the cause of action, with the result that, if a complaint is not filed within one year, it cannot prosper although the matter is not set up in the answer or motion to dismiss.” (Abeto vs. Rodas, 46 Off. Gaz., [3], 930, 932.)

A defense of failure to state a causes of action is not waived by failure to raise same as a defense (section 10, Rule 9).

Failure to assume officeSection 11, Omnibus Election Code:

Failure to assume office. - The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control.

Part IVTermination of Relations

A. Modes of termination

End of term

Fernandez v Ledesma, G.R. No. L-18878, 3-30-63

Facts:

Celso A. Fernandez was appointed ad interim chief of police of Basilan City on January 7, 1954, took his oath of office on the same date, and his appointment was confirmed by the Commission on Appointments on April 21, 1954. On June 8, 1957, President Carlos P. Garcia, in an administrative order, suspended Fernandez for one month for having been found guilty of gross negligence, violation of law, and dereliction of duty.

Fernandez was later charged before the Court of First Instance of Basilan City with two offenses, one for disobedience of an order of his superior officer (Criminal Case No. 368) and another for oral defamation (Criminal Case No. 438), for which he was suspended from office by the then Executive Secretary Fortunato de Leon. He asked that his order of suspension be lifted but it was denied. After the prosecution had rested its cases and without requiring the accused to submit his defense, the latter was acquitted in the two criminal cases abovementioned. Nevertheless, Fernandez continued suspended even if no formal administrative charge were instituted against him, or any administrative investigation conducted of said charges. On April 28, 1959, the then Executive Secretary Juan C. Pajo wrote Fernandez informing him that the President has terminated his services as chief of police of Basilan City and has designated Cecilio Ledesma in his place requesting him at the same time to turn over his office to Ledesma. The nomination of

Ledesma having been confirmed by the Commission on Appointments, he took his oath of office as new chief of police of Basilan City on May 26, 1959. Whereupon, Fernandez instituted an action for quo warranto with mandamus against Ledesma before the Court of First Instance of Basilan City seeking his reinstatement on the ground that his removal from office without cause as provided by law was in violation of our Constitution.

Issue:

WON, the removal of Fernandez from office by the President was valid in accordance with Section 17, RA 288 – Charter of the City of Basilan.

Held/Ratio:

Yes, it is clear that the President in the exercise of his discretion has put an end to the services of appellant as chief of police of Basilan City on April 28, 1959, and this he did pursuant to the authority conferred upon him by Section 17 of Republic Act 288, known as the Charter of the City of Basilan, which reads as follows:

SEC. 17. Appointment and removal of officers and employees — Compensation.— The President shall appoint with the consent of the Commission on Appointments, the municipal judge and auxiliary municipal judge, the city engineer, the city treasurer-assessor, the city attorney, the chief of police and the other chiefs of departments of the city which may be created from time to time, and the President may remove at his discretion any of said appointive officers with the exception of the municipal judge, who may be removed only according to law. (Emphasis supplied)

As may be noted, under the aforesaid section, the President is vested with the authority to appoint, with the consent of the Commission of Appointments, among others, the chief of police, and in connection with such power the same section says "the President may remove at his discretion any of said appointive officers with the exception of the municipal judge, who may be removed only according to law." Verily, the President interpreted said removal clause as meaning that he may terminate the services of any officer he may appoint under the charter at his discretion or pleasure with the exception of the municipal judge who may be removed only according to law, and in the exercise of such power he terminated the services of appellant as chief of police.

We agree with the foregoing interpretation. When the law says that the President may remove at his discretion any of the appointive officers of the city with the exception of the municipal judge who may be removed only according to law, it is evident that the legislative intent is to make the continuance in office of any of said appointive officers dependent upon the pleasure of the President. If such were not the case, it would not have made a distinction in point of removal between appointive officers in general and the municipal judge. This distinction verily is predicated upon the fact that nowhere in Republic Act No. 288 is there any mention that the term of office of the chief of police, and for that matter of any appointive officer, with the exception of the municipal judge, should be for a fixed period. The fact no term of office is fixed for that position is indicative of an intention to make it dependent upon the discretion or pleasure of the appointing power. And Congress is not wanting in power to do so for, as it was aptly said: "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 function of the government, to be exercised

by him for the benefit of the public" (7 Mechem, Public Officers, Section 1; See also 42 Am. Jur., 944-955; Emphasis supplied ). And in Alba v. Alajar, 53 O.G. No. 5, p. 1452 , this Court also said: "Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of the President."

Appellant, however, does not agree with the foregoing view for he contends that the act of the President in appointing Cecilio Ledesma to the position of chief of police of Basilan City in his place is tantamount to his removal without cause from office in violation of Section 4, Article XII, of our Constitution, invoking in support thereof our ruling in the cases of De los Santos v. Mallare, 48 O.G., 1791 and Lacson v. Roque, 49 O.G., 93. But this contention cannot be sustained considering that the position of the chief of police does not have a fixed term. As already said, it was made dependent upon the discretion or pleasure of the President, whereas the cases invoked by appellant relate to positions for which the law fixes a definite term of office. What is in point here is the case of Alba v. Alajar, supra, wherein this Court made the following pronouncement:

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 his tenure , which is one the ordinary modes of terminating official relations. On this score, section 2545 of the Revised Administrative Code which was declared inoperative in the Santos vs. Mallare case, is different from section 8 of Republic Act No. 603. Section 2546 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, inopposite 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.

Hernandez v Villegas, G.R. No. L-17287, 6-30-65

Facts:

Epifanio Villegas, a lawyer and civil service eligible, was appointed Director for Security of the Bureau of Customs, with compensation at P6,000, effective November 1, 1955. In 1956, he was sent to the United States to study enforcement techniques and customs practices under the technical assistance program of the National Economic Council and the International Cooperation Administration.

Villegas returned to the Philippines in June, 1957. Shortly thereafter, he was temporarily

detailed to the Arrastre Service vice Eleazar Manikin and, in his stead, James Keefe was designated Acting Director for Security. While he was acting Arrastre Superintendent, however, Villegas continued receiving his salary as Director for Security and, when the salary was increased from P6,600 to P7,017.60, he also received the corresponding salary adjustment.

On January 9, 1958, Secretary of Finance Jaime Hernandez proposed to the Office of the President the permanent appointment of Villegas as Arrastre Superintendent, stating in his letter that "this (the proposed appointment) involves a change of designation and status from Director for Security which is confidential in nature to Arrastre Superintendent, a classified position." A few days later, the appointment of James Keefe to the position of Director for Security was likewise proposed.

On January 14, 1958, Executive Secretary Juan C. Pajo advised Secretary Hernandez that the President had approved the proposed appointments of Villegas and Keefe. Accordingly, Villegas and Keefe's appointments, effective January 1, 1958, were prepared and later signed by Secretary Hernandez. As the Court of Appeals observed in its decision, "In one of the appointments, defendant Keefe was promoted to the position of Director for Security ... and in the other plaintiff was demoted to the rank of arrastre superintendent." (Emphasis supplied)

It appears that Villegas did not know of his appointment and that of Keefe until February 28, 1958. On this day, he learned that Keefe was being paid the salary for Director for Security and, on further inquiry, found that he had been appointed Arrastre Superintendent. On March 3, 1958, therefore, he served notice on Customs Commissioner Eleuterio Capapas that he was resuming the duties and functions of his office as Director for Security. He also wrote the Auditor General, Secretary Hernandez and Commissioner Capapas, the Budget Commissioner, and the Civil Service Commissioner, asking them to disapprove the promotional appointment of Keefe to the post of Director for Security.

Villegas resorted for quo warranto and the judgment was on his favor.

Issue/s:

1) WON, the office of Director for Security in the Bureau of Customs, is a primarily confidential position

Held/Ratio:

Not necessarily, SC said that, we do not need to consider the position involved in this case is primarily confidential, because, even assuming the position to be, it is nevertheless subject to the Constitutional provision that "No officer or employee in the Civil Service shall be removed or suspended except for cause." (Phil. Const., Art. XII, sec. 4) Villanuevas' removal, is, therefore, concededly without cause. Thus, only recently, this Court reiterated in Corpus v. Cuaderno, G.R. No. L-23721, March 31, 1965, the view that :

[T]he Constitutional provisions merely constitute the policy-determining, primarily confidential, and highly technical positions as exceptions to the rule requiring appointments in the Civil Service to be made on the basis of merit a fitness as determined from competitive examinations (sec. 1, supra ) (Jover vs. Borra, 49 O.G. [No. 7] 2755), but that the Constitution does not exempt such positions from the operation of the principle emphatically and categorically enumerated in section 4

of Article XII that —

No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.

and which recognizes no exception .

This view finds confirmation in sections 3 and 5 of the Civil Service Act of 1959 (Rep. Act No. 2260).

The statement in De los Santos v. Mallare, supra, to the effect that appointment to any of the three classes of positions is terminable at the will of the appointing power, must be deemed a mere obiter. It has been correctly criticized as misleading. For if these three special positions do not really belong to the Civil Service, the Constitution would not have specifically named them as an exception to the general rule that all appointments must be made on the basis of merit and fitness to be determined by competitive examinations. (Sinco, Philippine Political Law 411 [11th ed. 1962]) Indeed, in the Corpus case, this statement was held as not controlling, the ruling in the De los Santos case, where the statement appears, being that a city engineer who belongs to the unclassified service is protected by the security of tenure provisions of the Constitution.

It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office — two different causes for the termination of official relations recognized in the Law of Public Officers. (See, e.g., Corpus v. Cuaderno, supra; Alba vs. Evangelista, 53 O.G. 1452; Fernandez v. Ledesma, G.R. No. L-18879, March 30, 1963. Contra Hojilla v. Marino, G.R. No. L-20574, Feb. 26, 1965.) But the point is that as long as confidence in them endures — and it has been shown that it has been lost in this case — the incumbent is entitled to continue in office.

We therefore hold that Villegas' removal from the office of Director for Security is without cause and is therefore illegal.

Retirement

Beronilla v GSIS, G.R. No. L-21723, Nov. 26, 1970

Facts:

A special civil action for prohibition seeking to declare Resolution No. 1497 of the Board of Trustees of the respondent Government Service Insurance System of August 9, 1963 to the effect that petitioner "Mr. (Hilarion) Beronilla be considered compulsorily retired from the service (as Auditor of the Philippine National Bank) effective January 14, 1963" as null and void.

At the time of the filing of the present petition on August 23, 1963, petitioner was acting as and performing the duties of Auditor of the Philippine National Bank. Before that, he had occupied many other positions in the government and had been a member of the GSIS during all times required by law.

In his application for employment, his applications for life and retirement insurance as well as his application to be allowed to take civil service examinations, ten times from 1917 to 1925, petitioner uniformly indicated that his date of birth is January 14, 1898. He also indicated the same date of birth in his Member's Service Record which he submitted to the GSIS on October 29, 1954 pursuant to the provisions of Section 13-A, Republic Act No. 660.

On September 29, 1959, he requested the Commissioner of Civil Service, thru the Auditor General, that his date of birth indicated in the records be changed to January 14, 1900. According to the petition, it was only in 1955, before the demise of his mother that petitioner discovered that his true date of birth is January 14, 1900; that his mother told him that in 1916, his uncle, Alvaro Beronilla, purchased a cedula for him showing in the same that he was already 18 years old for the reason that his uncle wanted to take advantage of his being able to vote for him in La Paz, Abra in 1919, when he would be already twenty-one years of age and the uncle a candidate for vice-president of the municipality; that since then he had been looking for people who could attest to his true date of birth and it was only in September, 1959 that he came upon two old persons of their town, Felix Alberne and Ricardo Lalin who could do so; that the former had been a member of the provincial board and the latter is a retired justice of the peace; and that his letter to the Civil Service Commissioner was supported by the affidavits of these two persons. This letter was endorsed by the Commission to the GSIS for action "without the intervention of the Civil Service Commission."

In the GSIS, petitioner's letter-request was referred to the Legal Counsel who, on October 22, 1959, denied the same since "all official records point to January 14, 1898 as the birthday of Mr. Hilarion Beronilla." Upon learning of this denial, petitioner submitted additional evidence to support his request. This evidence consisted of photostat copies of the yearbooks of the Philippine Institute of Accountants in 1954 and 1958 wherein his date of birth is shown as January 14, 1900. This additional evidence notwithstanding, on March 21, 1960 the Legal Counsel reiterated his former denial. Whereupon, on May 21, 1960 petitioner appealed to the General Manager of the System who at that time was Mr. Rodolfo Andal. Upon favorable recommendation of the 2nd Assistant General Manager, Mr. F. G. Araña in a memorandum dated May 30, 1960, on June 2, 1960, Mr. Andal placed "OK." at the foot thereof over his initials, thus indicating approval of the requested change.

Based on this action of the General Manager, notes of the adjustment of the date of birth of petitioner to January 14, 1900 were sent to the Auditor General and the Commissioner of Civil Service and the proceeds of petitioner's policy was re-computed. As emphasized by petitioner, in the letter to the Philippine National Bank, it is stated that "his date of birth has been adjusted by this office, after careful study and deliberation." On the other hand, in the 2nd indorsement to the Deputy Auditor General, it was made clear that relative to petitioner's life insurance policy No. N-2065 which had matured on November 30, 1957, corresponding adjustment or recomputation of the maturity value had been effected on the basis of his changed date of birth. In the meantime, upon application of petitioner, on October 1, 1960, he was issued a new life policy No. 335778 indicating his date of birth as January 14, 1900. Regarding his above-mentioned policy No. N-2065, on July 7, 1960, demand was made upon petitioner to pay the System additionally the sum of P131.09, due to the adjustment of his date of birth, which demand, petitioner promptly complied with.

Almost three years after Mr. Andal approved the change of petitioner's date of birth, more specifically, on May 6, 1963, Mr. Ismael Mathay, then Auditor of the Central Bank detailed

to the Philippine National Bank, wrote the Board of Trustees of the GSIS about the service of petitioner and stated that "in the course of the audit of the transactions of the Philippine National Bank, it was found that Mr. Hilarion Beronilla has been continuously paid since January 15, 1963, his salary allowances and other fringe benefits as Auditor of said Bank notwithstanding the fact that Mr. Beronilla has attained his sixty-fifth (65th) birthday last January 14, 1963, the date of his automatic and compulsory retirement from the government service as fixed under Republic Act No. 3096 approved June 16, 1961."

Issue/s:

WON, the GSIS Board of Trustees acted within its powers when it reversed the approval by General Manager Andal of petitioner's request for the change of his date of birth, taking all circumstances into account including petitioner's allegations of res adjudicata, laches, estoppel, denial of due process and unconstitutional impairment of contractual obligations.

Held/Ratio:

Yes, it acted within its powers. It is clear to Us that under the GSIS charter, the General Manager's approval is not beyond review and reprobation by the Board of Trustees. It must be borne in mind that under Section 16 of said charter, the System "shall be managed by the Board of Trustees ... " and Section 17 adds that the Board "shall have the following powers and authority: (a) to adopt by-laws, rules and regulations for the administration of the System and the transaction of its business." On the other hand, the extent of the functions and powers of the General Manager are defined in Section 18 as follows:

SEC. 18. Personnel. — The Board shall have the power to appoint a general manager, who shall be a person of recognized experience and capacity in the subject of life and social insurance, and who shall be the chief executive officer of the System, one or more assistant general managers, one or more managers, a medical director, and an actuary, and fix their compensation. The general manager shall, subject to the approval of the Board, appoint additional personnel whenever and wherever they may be necessary to the effective execution of the provisions of this Act, fix their compensation, remove, suspend, or otherwise discipline them, for cause. He shall have the power to prescribe their duties, grant leave, prescribe certain qualifications to the end that only competent persons may be employed, and appoint committees: Provided, however, That said additional personnel shall be subject to existing Civil Service laws, rules and regulations.

xxx xxx xxx

It is thus obvious that by express statutory authority, the Board of Trustees directly manages the System and the General Manager is only the chief executive officer of the Board. In the exercise of its power to adopt rules and regulations for the administration of the System and the transaction of its business, the Board may lodge in the General Manager the authority to act on any matter the Board may deem proper, but in no wise can such conferment of authority be considered as a full and complete delegation resulting in the diminution, much less exhaustion, of the Board's own statutorily-based prerogative and responsibility to manage the affairs of the System and, accordingly, to decide with finality any matter affecting its transactions or business. In other words, even if the Board may entrust to the General Manager the power to give final approval to

applications for retirement annuities, the finality of such approval cannot be understood to divest the Board, in appropriate cases and upon its attention being called to a flaw, mistake or irregularity in the General Manager's action, of the authority to exercise its power of supervision and control which flows naturally from the ultimate and final responsibility for the proper management of the System imposed upon it by the charter. Incidentally, it may be added that the force of this principle is even more true insofar as the GSIS is concerned, for the fiduciary character of the management of the System is rendered more strict by the fact that the funds under its administration are partly contributed by the thousands upon thousands of employees and workers in all the branches and instrumentalities of the government. It is indeed well to remember at all times that the System and, particularly, its funds do not belong to the government, much less to any administration which may happen to be temporarily on the saddle, and that the interests of the mass of its members can only be duly safeguarded if the administrators of the System act with utmost fidelity and care. Not for nothing is its controlling and managing board called the Board of Trustees. We hold that any authority conferred upon the General Manager by the Board of Trustees notwithstanding, the said Board may in appropriate cases and in the exercise of its own sound discretion review the actions and decisions of the General Manager. The mere fact that the resolution granting the authority expressly gives the character of finality to the General Manager's acts does not constitute such a representation to third persons dealing with the System that such finality is definite even vis-a-vis the Board as to create any estoppel, for the simple reason that it is not legally possible for the Board to divest itself of an authority which the charter of the System places under its direct responsibility. From another point of view, since the law clearly vests the management in the Board and makes the General Manager only its chief executive officer, all parties dealing with the System must be deemed to be on guard regarding the ultimate authority of the Board to modify or reverse any action of the General Manager and they cannot complain should the Board exercise its powers in the premises.

It may be stated at the outset that petitioner's twin points of laches and estoppel actually boil down in this particular case to nothing more than estoppel by silence. With this clarification, it is meet to recall that "mere innocent silence will not work estoppel. There must also be some element of turpitude or negligence connected with the silence by which another is misled to his injury" (Civil Code of the Philippines by Tolentino, Vol. IV, p. 600) and that "the doctrine of estoppel having its origin in equity and therefore being based on moral and natural justice, its applicability to any particular case depends, to a very large extent, upon the special circumstances of the case." (Mirasol v. Municipality of Tabaco, 43 Phil. 610, 614.) Important also it is not to overlook that as regards the actuations of government officials, the general rule is that their mistakes and omissions do not create estoppel.

The compulsory retirement of government officials and employees upon their reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and at the same time give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompense, inadequate perhaps for their long service and devotion to. the government, in the form of a comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose upon them. Needless to say, therefore, the officials charged with the duty of implementing this policy cannot be too careful in insuring and safeguarding the correctness and integrity of the records they prepare and keep. In this case, all that the Board has done is to set aside what it found to be an erroneous decision of the General Manager in approving the change of date of petitioner's birth, because from the

evidence before it, the Board was convinced that the originally recorded date of birth should not be disturbed. We cannot see where the charged inequity of such action of the Board could lie.

For decades back, repeatedly and uniformly, petitioner made it appear in all material government and public records and in all his representations to respondent System that his date of birth is January 14, 1898. His rather belated request for a change of said date to January 14, 1900 which would unquestionably favor his interests, pecuniarily or otherwise, and correspondingly adversely affect those of the System and, of course, its members, was duly investigated and found not to be sufficiently grounded to merit favorable action by the Legal Counsel in whom is lodged the authority to evaluate such request. It is to be noted that, after all, it was always the petitioner who made representations to the respondent System as to his date of birth, and not the other way around. All that the System did was to take his representations for what they were worth. He was not believed by the Legal Counsel, but the General Manager did; on the other hand, the authority higher than the General Manager found the action of the General Manager erroneous. Under these circumstances, how could the System be in estoppel where the conflicting representations are of the petitioner rather than of the System?

Finally, as regards petitioner's argument that the Board's resolution in question constitutes an impairment of the obligations of his contract of insurance, it is obvious that the constitutional injunction that is evidently the basis of such argument refers to the legislature and not to resolutions even of government corporations. Besides, petitioner's life insurance policy, apart from not having any real relevance in this case, what is involved being his retirement, contains specific provisions contemplating the correction of any error or mistake in the date of birth of the insured. On the other hand, the retirement of government employees is imposed by law and is not the result of any contractual stipulation.

Abolition of officeBusacay v Buenaventura, 94 Phil. 1033

Facts:

The plaintiff was a duly appointed and qualified pre-war toll collector in the office of the provincial treasurer of Pangasinan with station at the Bued toll bridge in Sison, Pangasinan. His appointment was classified by the Commissioner of Civil Service as permanent. On October 18, 1945, after liberation, he was reappointed to that position with compensation at the rate of P720 per annum. On March 21, 1946, he resigned but on April 16 he was reappointed, and had continuously served up to November of 1947, when the bridge was destroyed by flood, by reason of which, he and two other toll collectors were laid off. Previously, from July 17 to September 10, 1946, the bridge had been temporarily closed to traffic due to minor repairs and during that period he and his fellow toll collectors had not been paid salaries because they had not rendered any service, but upon the reopening of the bridge to traffic after the repairs, he and his companions resumed work without new appointments and continued working until the bridge was washed away by flood in 1947.

When the bridge was reconstructed and reopened to traffic about the end of November, 1950, the plaintiff notified the respondent Provincial Treasurer of his intention and readiness to resume his duties as toll collector but said respondent refused to reinstate or

reappoint him. Respondent Alfredo Murao, also a civil service eligible, was appointed instead of him in February, 1951, and has been discharging the duties of the position ever since. The position now carries a salary of P1,440 a year. The Bued toll bridge is a portion of a national road and is a national toll bridge under Act No. 3932. The salaries of toll collectors thereon are paid from toll collections. In 1948, 1949 and 1950, no appropriation was set aside for these salaries, when the bridge was being rehabilitated. On September 15, 1950, the board on toll bridges approved the Bued river bridge as a toll bridge, authorized the collection of fees thereon, and prescribed corresponding rules and regulations.

Issue/s:

WON, by the total destruction of the bridge in 1947 the positions of toll collectors provided therefor were abolished.

Held/Ratio:

No. To consider an office abolished there must have been an intention to do away with it wholly and permanently, as the word "abolish" denotes. Here there was never any thought, avowed or apparent, of not rebuilding the aforementioned bridge. Rather the contrary was taken for granted, so indispensable was that bridge to span vital highways in northern Luzon and to Baguio.

This being so, the collapse of said bridge did not, in our opinion, work to destroy but only to suspend the plaintiff's position, and that upon the bridge's rehabilitation and its reoperation as a toll bridge, his right to the position was similarly and automatically restored.

This position is temporary, transitory or precarious only in the sense that its life is co-extensive with that of the bridge as a toll bridge. For that matter, all offices created by statute are more or less temporary, transitory or precarious in that they are subject to the power of the legislature to abolish them. But this is not saying that the rights of the incumbents of such positions may be impaired while the offices exist, except for cause.

The fact that the destruction of the bridge in question was total, and not partial as in 1945, the length of time it took to reconstruct it, and the hypothetical supposition that the new structure could have been built across another part of the river, are mere matters of detail and do not alter the proposition that the positions of toll collector were not eliminated. We believe that the cases of pre-war officers and employees whose employments were not considered forfeited notwithstanding the Japanese invasion and occupation of the Philippines and who were allowed to reoccupy them after liberation without the formality of new appointments are pertinent authority for the views here expressed

Our judgment then is that the appellant should be reinstated to the position he held before the destruction of the Bued river bridge.

The claim for back salary and/or damages may not be granted, however. Without deciding the merit of this claim, it is our opinion that the respondent Provincial Treasurer is not personally liable therefor nor is he authorized to pay it out of public funds without proper authorization by the Provincial Board, which is not a party to the suit.

Manalang v Quitoriano, G.R. No. L-6898, April 30, 1954

Facts:

Petitioner Luis Manalang contests, by quo warranto proceedings, the title of the incumbent Commissioner of the National Employment Service, and seeks to take possession of said office as the person allegedly entitled thereto.

The original respondent was Aurelio Quitoriano, who, at the time of the filing of the petition (August 4, 1953), held said office, which he assumed on July 1, 1953, by virtue of a designation made, in his favor, as Acting Commissioner of the National Employment Service, by the Office of the President of the Philippines. Subsequently, or on October 22, 1953, petitioner included, as respondents, Emiliano Morabe, who, on September 11, 1953, was designated Acting commissioner of National Employment Service, and Zosimo G. Linato, the Collecting, Disbursing and Property Officer of said National Employment Service — hereinafter referred to, for the sake of brevity, as the Service — in order to restrain him from paying, to respondent Morabe, the salary of the Commissioner of said Service. Still later, or on January 21, 1954, Mohamad de Venancio, who was designated Acting Commissioner of said Service, and assumed said office, on January 11 and 13, respectively, of the same year, was included as respondent.

Petitioner, Luis Manalang, was Director of the Placement Bureau, an office created by Executive Order No. 392, dated December 31, 1950 (46 Off. Gaz., No. 12, pp. 5913, 5920-5921), avowedly pursuant to the powers vested in the President by Republic Act No. 422. On June 20, 1952, Republic Act No. 761, entitled "An Act to Provide for the Organization of a National Employment Service," was approved and became effective. Section 1 thereof partly provides:

. . . In order to ensure the best possible organization of the employment market as an integral part of the national program for the achievement and maintenance of maximum employment and the development and use of productive resources there is hereby established a national system of free public employment offices to be known as the National Employment Service, hereinafter referred to as the Service. the Service shall be under the executive supervision and control of the Department of Labor, and shall have a chief who shall be known as the Commissioner of the National employment Service hereinafter referred to as Commissioner. Said Commissioner shall be appointed by the President of the Philippines with the consent of the Commission on Appointments and shall receive compensation at the rate of nine thousand pesos per annum. A Deputy Commissioner shall be appointed by the President of the Philippines with the consent of the Commission on Appointments and shall receive compensation at the rate of seven thousand two hundred pesos per annum.

On June 1, 1953, the then Secretary of Labor, Jose Figueras, recommended the appointment of petitioner Luis Manalang as Commissioner of the Service. On June 29, 1953, respondent Aurelio Quitoriano, then Acting Secretary of Labor, made a similar recommendation in favor of Manalang, upon the ground that "he is best qualified" and "loyal to service and administration." Said Acting Secretary of Labor even informed Manalang that he would probably be appointed to the office in question. However, on July 1, 1953, Quitoriano was the one designated, and sworn in, as Acting Commissioner of the Service. Such designation of Quitoriano — like the subsequent designation, first, of Emiliano Morabe, and the, of Mohamad de Venancio — is now assailed by Manalang as "illegal" and equivalent to removal of the petitioner from office without cause.

Issue/s:

WON, Manalang was illegally removed from office without cause.

Held/Ratio:

No, he was not. Petitioner Manalang has never been Commissioner of the National Employment Service and, hence, he could not have been, and has not been removed therefrom. Secondly, to remove an officer is to oust him from office before the expiration of his term. As removal implies that the office exists after the ouster. Such is not the case of petitioner herein, for Republic Act No. 761 expressly abolished the Placement Bureau, and, by implication, the office of director thereof, which, obviously, cannot exist without said Bureau. By the abolition of the latter and of said office, the right thereto of its incumbent, petitioner herein, was necessarily extinguished thereby. Accordingly, the constitutional mandate to the effect that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law" (Art. XII, Sec. 4, Phil. Const.), is not in point, for there has been neither a removal nor a suspension of petitioner Manalang, but an abolition of his former office of Director of the Placement Bureau, which, admittedly, is within the power of Congress to undertake by legislation.

It is argued, however, in petitioner's memorandum, that

. . . there is no abolition but only fading away of the title Placement Bureau and all its functions are continued by the National Employment Service because the two titles cannot co-exist. The seemingly additional duties were only brought about by the additional facilities like the district offices. Employment Service Advisory Councils, etc.

The question whether or not Republic Act No. 761 abolished the Placement Bureau is one of legislative intent, about which there can be no controversy whatsoever, in view of the explicit declaration in the second paragraph of section 1 of said Act reading:

Upon the organization of the Service, the existing Placement Bureau and the existing Employment Office in the Commission of Social Welfare shall be abolished, and all the files, records, supplies, equipment, qualified personnel and unexpended balances of appropriations of said Bureau and Commission pertaining to said bureau or office shall thereupon be transferred to the Service. (Emphasis supplied.)

Incidentally, this transfer connotes that the National Employment Service is different and distinct from the Placement Bureau, for a thing may be transferred only from one place to another, not to the same place. Had Congress intended the National Employment Service to be a mere amplification or enlargement of the Placement Bureau, Republic Act No. 761 would have directed the retention of the "qualified personnel" of the latter, not their transfer to the former. Indeed, the Service includes, not only the functions pertaining to the former Placement Bureau, but also, those of the former Employment Office in the Commission of Social Welfare, apart from other powers, not pertaining to either office, enumerated in section 4 of Republic Act No. 761.

It is next urged in petitioner's memorandum "that the item of National Employment Service Commissioner is not new and is occupied by the petitioner" and that the petitioner is entitled to said office "automatically by operation of law," in view of the above quoted provision of section 1 of Republic Act No. 761, relative to the transfer to the service of the

"qualified personnel" of the Placement Bureau and of the Employment Office in the Commission of Social Welfare.

This contention is inconsistent with the very allegations of petitioner's pleadings. Thus, in paragraph 11 of his petition, it is alleged "that increasing the item and elaborating the title of a civil servant, although necessitating a new appointment, does not mean the ousting of the incumbent or declaring the item vacant." In paragraph 12 of the same pleading, petitioner averred that "on or about June 25, 1953, two days before the departure of President Quirino to Baltimore, petitioner wrote a confidential memorandum to His Excellency reminding him of the necessity of appointing anew the petitioner as head of the National Employment Service."

Having thus admitted — and correctly — that he needed a new appointment as Commissioner of the National Employment Service, it follows that petitioner does not hold — or, in his own words, occupy — the latter's item, inasmuch as the right thereto may be acquired only by appointment. What is more, Republic Act No. 761 requires specifically that said appointment be made by the President of the Philippines 'with the consent of the Commission on Appointments." How could the President and the Commission on Appointments perform these acts if the Director of the Placement Bureau automatically became Commissioner of the National Employment Service?

Neither may petitioner profit by the provision of the second paragraph of section 1 of Republic Act No. 761, concerning the transfer to the Service of the "qualified personnel" of the Placement Bureau and of the Employment Office in the Commission of Social Welfare, because:

1. Said transfer shall be affected only "upon the organization" of the National Employment Service, which does not take place until after the appointment of, at least, the commissioner thereof. If the Director of the Placement Bureau were included in the phrase "qualified personnel" and, as a consequence, he automatically became Commissioner of the Service, the latter would have become organized simultaneously with the approval of Republic Act No. 761, and the same would not have conditioned the aforementioned transfer "upon the organization of the Service," which connotes that the new office would be established at some future time. Indeed, in common parlance, the word "personnel" is used generally to refer to the subordinate officials or clerical employees of an office or enterprise, not to the managers directors or heads thereof.

2. If "qualified personnel" included the heads of the offices affected by the establishment of the Service, then it would, also, include the chief of the Employment Office in the Commission of Social Welfare, who, following petitioner's line of argument, would, like petitioner herein, be, also, a Commissioner of the National Employment Service. The result would be that we would have either two commissioners of said Service or a Commission thereof consisting of two persons — instead of a Commissioner — and neither alternative is countenanced by Republic Act No. 761.

3. Congress can not either appoint the Commissioner of the Service, or impose upon the President the duty to appoint any particular person to said office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing the concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office.

Facundo v Pablan, G.R. No. L-17746, January 31, 1962

Facts:

On July 13, 1960, Valeriano Ulep and Alejandro Facundo jointly filed with the Court of First Instance of Pangasinan a petition for mandamus (docketed as Special Civil Case No. T-669) against respondents Carbonell (municipal mayor of Asingan, Pangasinan), Layos, Domingo, Lopez, de los Trinos, Cruz (municipal councilors of Asingan), and Perez (municipal treasurer) alleging, as first cause of action, that on February 11, 1948, petitioner Ulep was appointed Local Civil Registry Clerk in the office of the municipal treasurer of Asingan, and has held said position and received salary therefor, continuously since his appointment; that because he is a non-civil service eligible, he (Ulep) took the general clerical (qualifying) civil service examination on February 27, 1960, pursuant to the provisions of Republic Act No. 2260, known as the Civil Service Act of 1959; that on June 24, 1960, respondents municipal councilors passed Resolution No. 67, abolishing his position and, on the same day, approved Resolution No. 70, creating 4 positions of policemen; and that four days later, respondent mayor Carbonell wrote a letter to him (Ulep) terminating his services as Local Civil Registry clerk.

As second cause of action, the petition alleged that the other petitioner Facundo, a third grade civil service eligible was appointed as Market Collector in the office of the municipal treasurer of Asingan, on October 15, 1958, and has continuously held and performed the duties of said position and received the emoluments therefor since his appointment; that in said Resolution No. 67, his position was abolished; and that on June 28, 1960, respondent mayor Carbonell wrote him a letter terminating his services as Market Collector.

The petition further alleged that by the approval and adoption of said resolution and the termination of their services, petitioners have been unlawfully excluded from their positions; that in approving and adopting said resolution and in terminating their services, respondents were impelled by revenge and ulterior motives; that respondents' acts are oppressive, persecutory, and violative of the specific provisions of the cited Republic Act No. 2260. Petitioners, therefore, prayed that a preliminary mandatory order 1 be issued directing respondent mayor Carbonell to reinstate them to their positions; and that judgment be rendered declaring respondents to have acted illegally in passing said resolution, and in terminating petitioners' services, declaring void said resolution for being oppressive, persecutory, and violative of the provisions of Republic Act No. 2260

To this petition, respondents timely filed their answer alleging, among others, that the positions abolished under the resolution in question "were unnecessary and useless and carrying duties which could be efficiently performed by other employees in the office of the Municipal Treasurer"; that the appropriation for said positions, "could be applied for more important and useful undertakings of the municipality, particularly, in the implementation and pursuance of its inherent duty, which is the present administration's avowed policy of maintaining peace and order which have been unduly neglected in the past"; and that said resolution "is valid and lawful, enacted and resolved with a view of bringing about a better and more efficient administration and in consonance with the promise and avowed policy of the present administration of maintaining peace and order" for which it received the confidence of the people of Asingan in the last local elections. Respondents prayed that the petition be dismiss with costs.

The lower court ruled that the abolition of the position of Ulep was valid, being not civil service legible while the abolition of the position of Facundo is not valid as he was entitled

to permanency being civil service legible.

To this, Ulep appealed while the respondents appealed out of the reglementary period. The counsel for Facundo moved for execution of the judgment, to which the Judge Pabalan denied, alleging that since Ulep appealed, then the SC may declare valid or invalid in parts or in whole the Resolution 67 which can still affect Facundo. Facundo filed for mandamus against Judge Pabalan.

Issue/s:1) WON, mandamus can be granted against Judge Pabalan.

2) WON, the municipal council validly abolished the position of Ulep.

Held/Ratio:

1) Yes, Facundo's petition for certiorari with mandamus is meritorious. The records disclose that respondents' appeal was filed out of time and was disallowed by the trial court in its order of November 3, 1960. Consequently, the decision in favor of petitioner Facundo became final and executory (Sec. 1, Rule 39, Rules of Court), and he (Facundo) became entitled, as a matter of right, to its execution. It, therefore, became respondent Judge's ministerial duty, compellable by mandamus, to issue the writ of execution sought by Facundo.

The fact that there is only one decision and only one resolution involved, does not make the right of one of the petitioners dependent upon the right of the other. The provisions of Resolution No. 67 are severable, each petitioner occupying a different position and having different qualifications, Facundo being a civil service eligible and Ulep, not. The decision too, although only one, contains separate findings for each of the parties and makes distinct and independent rulings for each of them. The appeal, therefore, of Ulep which has no bearing to the ordered reinstatement of Facundo cannot be an obstacle to the execution of said decision insofar as Facundo is concerned.

2) There is no law which expressly authorizes a municipal council to abolish the positions it has created, but the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules expressly or impliedly providing otherwise (Castillo v. Pajo, et al., G. R. No. L-11262, prom. April 28, 1958, citing Brillo v. Enage, 50 O. G. 3102 and 67 C.J.S. 121). However, the office must be abolished in good faith; and if immediately after the office is abolished, another office is created with substantially the same duties, and a different individual is appointed, or if it otherwise appears that the office was abolished for personal or political reasons, the courts will intervene (Gacho, et al. v. Osmena, et al., G. R. No. L-10989, prom. May 28, 1959, citing 37 Am. Jur. 858).

In the instant case, the reasons which impelled the municipal council of Asingan in adopting. Resolution No. 67 dated June 24, 1960, abolishing the position of appellant are stated therein, to wit: there is "an excess of personnel" in the office of the municipal treasurer of Asingan; the position of appellant "could be undertaken by the internal revenue clerk" in said office; and if abolished, the remaining positions in said office "will be sufficient to warrant the sound operation of said office". In respondents' answer, it is also stated that the appropriation for said position "could be applied for more important and useful undertakings of the municipality, particularly, in the implementation and pursuance of its inherent duty, which is the present administration's avowed policy of

maintaining peace and order, which have been unduly neglected in the past." Observe too, that the new positions created (in Resolution No. 70 of the same date as No. 67) are those of policemen, the duties of which, are entirely different from those of appellant. In the circumstances, we are not prepared to declare that the action of the municipal council of Asingan was an abuse of the power and discretion lodged in it by existing law (Rodriguez v. Montinola, G.R. No. L-5689, prom. May 14, 1954).

Appellant contends that his removal from his position was illegal because having taken the civil service examination required under Section 23 2 of Republic Act No. 2260, known as the Civil Service Act of 1959, he could not be replaced or removed from office, unless the results of said examination shows he failed therein. He also argues that his removal was illegal, as it was not for cause as provided by Section 4, Article XI of the Constitution. But, appellant can not successfully invoke said provisions in his favor, because there has been no removal of petitioner, but in abolition of his position, which was within the power of the municipal council of Asingan to do.

Cruz v Primicias, 23 SCRA 998

Facts:

Direct petition for Mandamus, with preliminary injunction, filed by certain employees of the Province of Pangasinan, to declare Resolution No. 5 of the Provincial Board and Executive Order No. 2 of the Provincial Governor null and void; to have the abolition of petitioners' positions declared illegal, and compel their immediate reinstatement; to restrain respondents from excluding petitioners from the enjoyment of their rights as civil service employees, and to recover attorneys' fees and costs.

It is not disputed that upon election and assumption of office in 1967 of the respondents Provincial Governor and Members of the Provincial Board, the latter adopted on January 1, 1968, Resolution No. 5 providing as follows:

Resolution No. 5

RESOLVED by the Provincial Board of Pangasinan, that for the purpose of promoting simplicity, economy and efficiency in the operation of the Provincial Government and for the purpose of providing the necessary expanded services on agricultural extension, rural health, provincial public works and legal services, etc., the Provincial Governor is hereby authorized to effect by executive orders from time to time for a period not exceeding six (6) months from the date of approval of this resolution, such reforms and changes in the different offices and branches of the Provincial Government as may be necessary, with the power to diminish, add to or abolish those existing and create new ones; consolidate related undertakings; transfer functions, appropriations, equipments, properties, records and personnel from one office or branch to another; eliminate duplicated services or authorize new ones not provided for; classify, combine, split or abolish positions; standardize salaries and do whatever is necessary and desirable to effect economy and promote efficiency of the government service and provide necessary services for the promotion of the general social welfare.

That any action taken by the Provincial Governor pursuant to this resolution shall be immediately reported to the Provincial Board and shall be valid and subsisting

until the Provincial Board shall provide otherwise.1ªvvphi1.nêt

Acting pursuant to this Resolution, the Governor issued his Executive Order No. 2 on January 2, 1968, reorganizing the office of the Governor and that of the Provincial Board. The order expressly abolished the divisions provided for in the Annual Budget for the fiscal year ending on June 30, 1968 —

1. Executive Division2. Socio-Economic Program Implementation Division3. Political Affairs and Placement Division4. Public Information Division5. Legal Division

as well as "all the positions listed in the current plantilla of personnel of said offices," with certain exceptions. At the same time, the Executive Order (pars. d-f) provided:

(d) That there is hereby created, effective January 1, 1968, a private and confidential staff of the Governor under his immediate control and supervision with such duties and functions as may be assigned and prescribed by him from time to time in the interest of the service.

(e) That as authorized by the Decentralization Law, there is hereby created, effective January 1, 1968, One Provincial Attorney under the Governor with an annual salary of P8,400.

(f) That there is hereby created a Personnel Division under the Office of the Governor with such duties and functions as prescribed under Rule XVII of the Civil Service Rules in relation to Section 21 of the Civil Service Act of 1959

Petitioners are Provincial Clerk eligibles, except Bancod, who is a general clerk eligible. On or about January 11 to 15, 1968, they were individually served notices of termination of their services and coincidentally, the equipment used by said petitioners was taken, transferred and redistributed to other retained offices.

In their answer filed on February 12, 1968, respondents pleaded that the reorganization of the offices of the Provincial Governor and Provincial Board had been made within the powers of the Provincial government, in order to effect economy in view of the province's deficit of P3.714 million pesos; to promote simplicity and efficiency, and to provide for more essential services and activities; that the Governor's Executive Order No. 2 had been approved and ratified by the Provincial Board on January 5, 1968, by its Resolution No. 8, while the supplemental budget to provide for the newly created positions was ratified by the Board's Resolution No. 50, of January 26, 1968; that the actions thus taken were immediately effective, without need of the approval of the Secretary of Finance; and that the abolition and creation of new positions were made in good faith, the selection of retained employees had been made on the basis of seniority and fitness as required by the Civil Service law, those retained having been appointed earlier than the petitioners. The answer also urged that the petitioners should have exhausted their administrative remedies, by appealing to the Commissioner of Civil Service.

After this case was argued in open court, one of the petitioners, Myrna Sison, formerly occupying the position of correspondence clerk, manifested in writing that she was no

longer interested in the case and prayed that she be excluded therefrom.

Issue/s:

WON, the abolition of the offices held by petitioners is valid and legal.

Held/Ratio:

No, the abolition was not valid and legal. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is a well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents (Manalang vs. Quitoriano, 94 Phil. 903; Rodriguez vs. Montemayor, 94 Phil. 964; Castillo vs. Pajo, 103 Phil. 515). And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office.

As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void.

A review of the record herein satisfies us that the justifications advanced for the abolition of petitioners' offices (economy and efficiency) are but subterfuges resorted to for disguising an illegal removal of permanent civil service employees, in violation of the security of tenure guaranteed by the Constitution.

The claim of economy effectuated through the reorganization is belied by the fact that while 72 positions were abolished, 50 of these were actually vacant. Only 22 stations were occupied at the time of the reorganization, carrying total emoluments of P25,538.71 per semester, of which P6,120.00 per semester corresponds to the five remaining petitioners (Answer, Exh. 3-C). As against these 22 positions suppressed by the reorganization (Executive Order No. 2), 28 new positions were simultaneously created, with a compensation of P87,600.00 per annum, P43,800.00 per semester, for confidential personnel in the office of the Governor (Exh. Order No. 2, par. d). In addition, a Provincial Attorney and his staff (p. 2), and a Personnel Division of five members, importing P13,380.00 per semester were set up. Thus, against the suppressed items of P25,538.71, new items carrying a total appropriation of P57,180.00 per semester (or P114,360.00 annually) were created, in addition to P8,000.00 for casual laborers at the discretion of the Governor. Where the economy lies is difficult to see. Significantly, this "economy" was the same excuse advanced by the preceding administration when it attempted to eliminate civil service eligibles upon its coming into power (Ocampo, et al. vs. Duque, supra).

As to the alleged need for greater efficiency, it is well to observe that no charge of inefficiency is lodged against petitioners herein. Their efficiency is attested by their promotional appointments in 1967. What can not be glossed over is that respondent's reorganization replaced 22 civil service eligibles with 23 confidential employees. No further elaboration is required to show that in truth and in fact, what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be totally dependent upon respondents' pleasure and discretion. Thus the spirit of the Civil Service law and of the Constitution are being purposely circumvented.

The motives behind these wholesale replacements are made manifest in paragraph 10 of respondents' own Answer, where it is averred, in an attempt to justify the new positions created, that:

... These positions are indispensable to the respondent Governor, he being the elected Chief Executive of the Province and it could not be denied that his position is more political in nature and as such, it is humbly submitted, that he is entitled to a flexible compact staff of highly confidential assistants in whom he has complete trust and confidence not only in their capacity for work but also in their personal fitness and loyalty. This should be so because his executive position is a political one and as elected Governor, he is also the Chairman of the Provincial Committee of the Nacionalista Party to which he belongs. In this situation, it could not be helped that his Office should deal with his own party men on party matters. Not only that, as the Chief Executive of the Province, his office has to keep and take up official secrets of the government which should not be put in danger of being leaked out to third parties, and it is for this reason, among others, that the respondent Governor should have a flexible compact staff of highly confidential assistants.

Here is proof that the true motivation for reorganizing out the petitioners was "not only (in) their capacity for work but also (in) their personal fitness and loyalty". Political loyalty or disloyalty are not statutory nor constitutional preconditions for appointment or grounds for separation of eligibles in the Civil Service.

As a consequence of this pronouncement, it is likewise held, that respondents have unlawfully excluded the petitioners from the enjoyment of an office to which they are entitled; and that in failing or refusing to include in the 1968-1969 budget items required to cover appropriations for salaries of petitioners, respondents have unlawfully failed or neglected the performance of an act which the law enjoins as a duty resulting from office.

ReorganizationDario v Mison, G.R. No. 81954, August 8, 1989

Facts:

On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." Among other things, Proclamation No. 3 provided:

SECTION 1. ...

The President shall give priority to measures to achieve the mandate of the people to:

(a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime;

Pursuant thereto, it was also provided:

SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption.

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.

SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.

SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its FUNDS and properties shall be transferred to the office or body to which its powers, functions and responsibilities substantially pertain.

Actually, the reorganization process started as early as February 25, 1986, when the President, in her first act in office, called upon "all appointive public officials to submit their courtesy resignation(s) beginning with the members of the Supreme Court." Later on, she abolished the Batasang Pambansa and the positions of Prime Minister and Cabinet under the 1973 Constitution.

Since then, the President has issued a number of executive orders and directives reorganizing various other government offices, a number of which, with respect to elected local officials, has been challenged in this Court, and two of which, with respect to appointed functionaries, have likewise been questioned herein.

On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization had generated, and prescribed as "grounds for the separation/replacement of personnel,"

On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE." Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs and prescribed a new staffing pattern therefor.

Three days later, on February 2, 1987, the Filipino people adopted the new Constitution.

On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," prescribing the procedure in personnel placement. It also provided:

1. By February 28, 1988, the employees covered by Executive Order 127 and the grace period extended to the Bureau of Customs by the President

of the Philippines on reorganization shall be:

a) informed of their re-appointment, or

b) offered another position in the same department or agency or

c) informed of their termination.

On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged with adjudicating appeals from removals under the above Memorandum.

Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano Pacifico Lagleva Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre, and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 individuals mentioned are the private respondents in G.R. No. 85310.

Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the deadline prescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution, specifically, the transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees' argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria in the sense that retention in the Bureau, under the Executive Order, depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered vacant." 57 The Solicitor General denies the applicability of Palma-Fernandez v. De la Paz 58

because that case supposedly involved a mere transfer and not a separation. He rejects, finally, the force and effect of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which was meant to implement the Provisional Constitution, had ceased to have force and effect upon the ratification of the 1987 Constitution, and that, under Executive Order No. 39, the dismissals contemplated were "for cause" while the separations now under question were "not for cause" and were a result of government reorganize organization decreed by Executive Order No. 127. Anent Republic Act No. 6656, he expresses doubts on the constitutionality of the grant of retroactivity therein (as regards the reinforcement of security of tenure) since the new Constitution clearly allows reorganization after its effectivity.

Issue/s:

WON, Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Government to remove career public officials it could have validly done under an "automatic" vacancy-authority and to remove them without rhyme or reason (WON, the removals conducted by Commissioner Mison in light of the reorganization as he claimed was valid – NO).

Held/Ratio:

No, reorganization must be in good faith. There is no question that the administration may validly carry out a government reorganization — insofar as these cases are concerned, the reorganization of the Bureau of Customs — by mandate not only of the Provisional Constitution, supra, but also of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-1987 revolutionary government. It should also be noted that under the present Constitution, there is a recognition, albeit implied, that a government reorganization may be legitimately undertaken, subject to certain conditions.

1. The ongoing government reorganization is in the nature of a "progressive" 60

reorganization "impelled by the need to overhaul the entire government bureaucracy" 61

following the people power revolution of 1986;

2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to deliberation, and selection of personnel for appointment under the new staffing pattern;

3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere holdover standing, "which means that all positions are declared vacant;" 62

4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987 Constitution;

5. Republic Act No. 6656 is of doubtful constitutionality.

The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:

Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shag be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted.

The Court considers the above provision critical for two reasons: (1) It is the only provision — in so far as it mentions removals not for cause — that would arguably support the challenged dismissals by mere notice, and (2) It is the single existing law on reorganization after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June 10, 1988.

It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution:

Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until the Congress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the President shall vacate their respective office(s) upon the appointment and qualification of their successors, if such appointment is made within a period of one year from the date of the inauguration of the Commonwealth of the Philippines. 65

Under Section 9, Article XVII, of the 1973 Charter:

Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors. 66

The Freedom Constitution is, as earlier seen, couched in similar language:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.67

Other than references to "reorganization following the ratification of this Constitution," there is no provision for "automatic" vacancies under the 1987 Constitution.

Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure.

At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obliged to prove good faith. In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it.

As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's notice.

What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so in clearer terms, as its 1935, 1973, and 1986 counterparts had so stated.

The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization under the prior Charter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stop to those 'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of reorganization — the first, to its conferment or authorization under Proclamation No. 3 (Freedom Charter) and the second, to its implementation on its effectivity date (February 2, 1987). But as we asserted, if the intent of Section 16 of Article XVIII of the 1987 Constitution were to extend the effects of reorganization under the

Freedom Constitution, it should have said so in clear terms. It is illogical why it should talk of two phases of reorganization when it could have simply acknowledged the continuing effect of the first reorganization.

Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated must be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service employees separated "for cause." In other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:

1. the separation must not be for cause, and

2. the separation must be due to any of the three situations mentioned above.

By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. 70 It Can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution — the first stage. We are on the second stage — that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document.

This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is apparent from the Charter's own words. It also warrants our holding in Esguerra and Palma-Fernandez, in which we categorically declared that after February 2, 1987, incumbent officials and employees have acquired security of tenure, which is not a deterrent against separation by reorganization under the quondam fundamental law.

Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations under martial rule. And, of course, we also have the democratic character of the Charter itself.

What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, nevertheless, magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm and ruthless propensity that accompanies reorganizations — notwithstanding the fact that removals arising therefrom were "not for cause," and in spite of the fact that such removals would have been valid and unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary anxiety and demoralization" in the government rank and file that reorganization was causing, and prescribed guidelines for personnel action. Specifically, she said on May 28, 1986:

WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the said

constitutional provision to protect career civil servants whose qualifications and performance meet the standards of service demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are separated from the government service; 71

Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of inefficiency, graft, and unfitness to render public service.*

The President's Memorandum of October 14, 1987 should furthermore be considered. We quote, in part:

Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further layoffs this year of personnel as a result of the government reorganization. 72

Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in a revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in any event, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization theory, he would still have to come to terms with the Chief Executive's subsequent directives moderating the revolutionary authority's plenary power to separate government officials and employees.

Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. —

The transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first stage being the reorganization under Proclamation No. 3 — which had already been consummated — the second stage being that adverted to in the transitory provisions themselves — which is underway. Hence, when we spoke, in Arroyo, of reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried over reorganization under the Freedom Constitution to its 1987 counterpart.

As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under the prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same cannot be said of the reorganization inferred under the new Constitution because, precisely, the new Constitution seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to due process and no-removal-"except for cause provided by law" principles enshrined in the very same 1987 Constitution, 79 which may possibly justify removals "not for cause," there is no contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requires that removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith — a test not obviously required under the revolutionary government formerly prevailing, but a test well-established in democratic societies and in this government under a democratic Charter.

Reorganizations in this jurisdiction have been regarded as valid provided they are 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. In that event, no

dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat sty of tenure, or otherwise not in good faith, no valid "abolition' takes place and whatever "abolition' is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds.

It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause," if by "cause" we refer to "grounds" or conditions that call for disciplinary action.**

Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case. However, under Republic Act No. 6656, we are told:

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 to a 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.

It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of it.

Reorganization of the Bureau of Customs,Lack of Good Faith in. —

The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy — except for the change of personnel — has occurred, which would have justified (an things being equal) the contested dismisses. The contention that the staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same s pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm, has not been successfully contradicted There is no showing that legitimate structural changes have been made — or a reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and

simple.

The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of August 18, 1988. This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the President's directive to halt further layoffs as a consequence of reorganization. Finally, he was aware that layoffs should observe the procedure laid down by Executive Order No. 17.

We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and all, the means with which it was implemented is not. 88

Executive Order No. 127, Specific Case of. —

With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "[t]hose incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau personnel, except those appointed by the President."

Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being Presidential appointees.

Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding in Palma-Fernandez.

That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that the positions held by them had become vacant. In Palma-Fernandez, we said in no uncertain terms:

The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. 90

It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the transitory provisions of the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith.

Resume. —

In resume, we restate as follows:

1. The President could have validly removed government employees, elected or appointed, without cause but only before the effectivity of the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-Fernandez vs. De la Paz, supra); in this connection, Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination;

2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9);

3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career civil service employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith. (Rep. Act No. 6656, supra.)

G.R. No. 83737

This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure 91 and as far as it provides for a retroactive effect, 92

runs counter to the transitory provisions of the new Constitution on removals not for cause.

It can be seen that the Act, insofar as it provides for reinstatament of employees separated without "a valid cause and after due notice and hearing" is not contrary to the transitory provisions of the new Constitution. The Court reiterates that although the Charter's transitory provisions mention separations "not for cause," separations thereunder must nevertheless be on account of a valid reorganization and which do not come about automatically. Otherwise, security of tenure may be invoked. Moreover, it can be seen that the statute itself recognizes removals without cause. However, it also acknowledges the possibility of the leadership using the artifice of reorganization to frustrate security of tenure. For this reason, it has installed safeguards. There is nothing unconstitutional about the Act.

Dela Llana v Alba, 112 SCRA 294

Facts:

Batas Pambansa Blg. 129, entitled “An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes”, was passed. Gualberto De la Llana, a judge in Olongapo, assailed its validity because, he would be one of the judges that would be removed because of the reorganization and he said such law would contravene the constitutional provision which provides the security of tenure of judges of the courts. He averred that only the Supreme Court can remove judges not the Congress.

Issue/s:

WON, BP 129 is constitutional.

Held/Ratio:

Yes, it is constitutional.

Cabinet Bill No. 42, which later became the basis of Batas Pambansa Blg. 129, was introduced. After setting forth the background as above narrated, its Explanatory Note continues: "Pursuant to the President's instructions, this proposed legislation has been drafted in accordance with the guidelines of that report with particular attention to certain objectives of the reorganization, to wit, the attainment of more efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meeting out of justice. In consultation with, and upon a consensus of, the governmental and parliamentary leadership, however, it was felt that some options set forth in the Report be not availed of. Instead of the proposal to confine the jurisdiction of the intermediate appellate court merely to appellate adjudication, the preference has been opted to increase rather than diminish its jurisdiction in order to enable it to effectively assist the Supreme Court. This preference has been translated into one of the innovations in the proposed Bill." In accordance with the parliamentary procedure, the Bill was sponsored by the Chairman of the Committee on Justice, Human Rights and Good Government to which it was referred. Thereafter, Committee Report No. 225 was submitted by such Committee to the Batasang Pambansa recommending the approval with some amendments. In the sponsorship speech of Minister Ricardo C. Puno, there was reference to the Presidential Committee on Judicial Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial Reorganization submitted its report to the President which contained the 'Proposed Guidelines for Judicial Reorganization.' Cabinet Bill No. 42 was drafted substantially in accordance with the options presented by these guidelines. Some options set forth in the aforesaid report were not availed of upon consultation with and upon consensus of the government and parliamentary leadership. Moreover, some amendments to the bill were adopted by the Committee on Justice, Human Rights and Good Government, to which The bill was referred, following the public hearings on the bill held in December of 1980. The hearings consisted of dialogues with the distinguished members of the bench and the bar who had submitted written proposals, suggestions, and position papers on the bill upon the invitation of the Committee on Justice, Human Rights and Good Government." Stress was laid by the sponsor that the enactment of such Cabinet Bill would, firstly, result in the attainment of more efficiency in the disposal of cases. Secondly, the improvement in the quality of justice dispensed by the courts is expected as a necessary consequence of the easing of the court's dockets. Thirdly, the structural changes introduced in the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure, are designated to suit the court system to the exigencies of the present day Philippine society, and hopefully, of the foreseeable future." 37 it may be observed that the volume containing the minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive study before the act was signed by the President on August 14, 1981. With such a background, it becomes quite manifest how lacking in factual basis is the allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is the good faith that characterized its enactment from its inception to the affixing of the Presidential signature.

Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine: "We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. ... And, of

course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith." As with the offices in the other branches of the government, so it is with the judiciary. The test remains whether the abolition is in good faith. As that element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more apparent. The concurring opinion of Justice Laurel in Zandueta v. De la Costa cannot be any clearer. This is a quo warranto proceeding filed by petitioner, claiming that he, and not respondent, was entitled to he office of judge of the Fifth Branch of the Court of First Instance of Manila. There was a Judicial Reorganization Act in 1936, a year after the inauguration of the Commonwealth, amending the Administrative Code to organize courts of original jurisdiction known as the Courts of First Instance Prior to such statute, petitioner was the incumbent of such branch. Thereafter, he received an ad interim appointment, this time to the Fourth Judicial District, under the new legislation. Unfortunately for him, the Commission on Appointments of then National Assembly disapproved the same, with respondent being appointed in his place. He contested the validity of the Act insofar as it resulted in his being forced to vacate his position This Court did not rule squarely on the matter. His petition was dismissed on the ground of estoppel. Nonetheless, the separate concurrence of Justice Laurel in the result reached, to repeat, reaffirms in no uncertain terms the standard of good faith to preclude any doubt as to the abolition of an inferior court, with due recognition of the security of tenure guarantee. Thus: " I am of the opinion that Commonwealth Act No. 145 in so far as it reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and constitutional. This conclusion flows from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of the Constitution vests in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tenure of all the judges. The principles embodied in these two sections of the same article of the Constitution must be coordinated and harmonized. A mere enunciation of a principle will not decide actual cases and controversies of every sort.

It was pointed out by Justice Laurel that the mere creation of an entirely new district of the same court is valid and constitutional. Such conclusion flowing "from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions." The challenged statute creates an intermediate appellate court, regional trial courts, metropolitan trial courts of the national capital region, 51 and other metropolitan trial courts, municipal trial courts in cities, as well as in municipalities, and municipal circuit trial courts. There is even less reason then to doubt the fact that existing inferior courts were abolished. For the Batasang Pambansa, the establishment of such new inferior courts was the appropriate response to the grave and urgent problems that pressed for solution. Certainly, there could be differences of opinion as to the appropriate remedy.

To be more specific, petitioners contend that the abolition of the existing inferior courts collides with the security of tenure enjoyed by incumbent Justices and judges under Article X, Section 7 of the Constitution. There was a similar provision in the 1935 Constitution. It did not, however, go as far as conferring on this Tribunal the power to supervise

administratively inferior courts. Moreover, this Court is em powered "to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal." Thus it possesses the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not render advisory opinions. No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power, Rather what is sought to be achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing tulle inferior courts, the power of removal of the present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernidble except to those predisposed to view it with distrust.

Nor is there anything novel in the concept that this Court is called upon to reconcile or harmonize constitutional provisions. To be specific, the Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. As noted in the preceding paragraph, the termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence. That is why it has long been well-settled under the constitutional system we have adopted that this Court cannot, whenever appropriate, avoid the task of reconciliation. As Justice Laurel put it so well in the previously cited Angara decision, while in the main, "the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government, the overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins." It is well to recall another classic utterance from the same jurist, even more emphatic in its affirmation of such a view, moreover buttressed by one of those insights for which Holmes was so famous "The classical separation of government powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Motesquieu or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down 'with mathematical precision and divide the branches into water-tight compartments' not only because 'the great ordinances of the Constitution do not establish and divide fields of black and white but also because 'even the more specific of them are found to terminate in a penumbra

shading gradually from one extreme to the other.'"

There are other objections raised but they pose no difficulty. Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is quite clear. The questioned provisions reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges, municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such receive such compensation and allowances as may be authorized by the President along the guidelines set forth in Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." The existence of a standard is thus clear. The basic postulate that underlies the doctrine of non-delegation is that it is the legislative body which is entrusted with the competence to make laws and to alter and repeal them, the test being the completeness of the statue in all its terms and provisions when enacted. As pointed out in Edu v. Ericta: “ To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole."The undeniably strong links that bind the executive and legislative departments under the amended Constitution assure that the framing of policies as well as their implementation can be accomplished with unity, promptitude, and efficiency. There is accuracy, therefore, to this observation in the Free Telephone Workers Union decision: "There is accordingly more receptivity to laws leaving to administrative and executive agencies the adoption of such means as may be necessary to effectuate a valid legislative purpose. It is worth noting that a highly-respected legal scholar, Professor Jaffe, as early as 1947, could speak of delegation as the 'dynamo of modern government.'" He warned against a "restrictive approach" which could be "a deterrent factor to much-needed legislation." Further on this point from the same opinion" Another objection based on the absence in the statue of what petitioners refer to as a "definite time frame limitation" is equally bereft of merit. They ignore the categorical language of this provision: "The Supreme Court shall submit to the President, within thirty (30) days from the date of the effectivity of this act, a staffing pattern for all courts constituted pursuant to this Act which shall be the basis of the implementing order to be issued by the President in accordance with the immediately succeeding section." The first sentence of the next section is even more categorical: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President." Certainly petitioners cannot be heard to argue that the President is insensible to his constitutional duty to take care that the laws be faithfully executed. In the meanwhile, the existing inferior courts affected continue functioning as before, "until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." There is no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold office." No fear need be entertained by incumbents whose length of service, quality of performance, and clean record justify their being named anew, in legal contemplation without any interruption in the continuity of their service. It is equally reasonable to assume that from

the ranks of lawyers, either in the government service, private practice, or law professors will come the new appointees. In the event that in certain cases a little more time is necessary in the appraisal of whether or not certain incumbents deserve reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its implementation by the Executive.

It is a cardinal article of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or impliedly certain powers. Those they exercise not for their own benefit but for the body politic. The Constitution does not speak in the language of ambiguity: "A public office is a public trust." That is more than a moral adjuration It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is from that standpoint that the security of tenure provision to assure judicial independence is to be viewed. It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. The judges may be guaranteed a fixed tenure of office during good behavior, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be nothing more than a myth or an empty Ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress — we do not say unlimited but as herein exercised — to reorganize inferior courts." That is to recall one of the greatest Common Law jurists, who at the cost of his office made clear that he would not just blindly obey the King's order but "will do what becomes [him] as a judge." So it was pointed out in the first leading case stressing the independence of the judiciary, Borromeo v. Mariano, The ponencia of Justice Malcolm Identified good judges with "men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government." There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious consequences to the administration of justice. It does not follow that the abolition in good faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor should there be any fear that less than good faith will attend the exercise be of the appointing power vested in the Executive. It cannot be denied that an independent and efficient judiciary is something to the credit of any administration. Well and truly has it been said that the fundamental principle of separation of powers assumes, and justifiably so, that the three departments are as one in their determination to pursue the Ideals and aspirations and to fulfilling the hopes of the sovereign people as expressed in the Constitution. There is wisdom as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, a decision promulgated almost half a century ago: "Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department or the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act." To that basic postulate underlying our constitutional system, this Court remains committed.

Section 11, Article VIII, 1987 Constitution:The Members of the Supreme Court and judges of the lower court shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the

Members who actually took part in the deliberations on the issues in the case and voted in thereon.

Biraogo v Truth Commission, G.R. No. 192935, & 193036 December 7, 2010

Facts:Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor. 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).

Nature of the Truth Commission 

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.

 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.” 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. “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.”

 

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.  Issue/s: (a) WON, 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.”

(b) WON, 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.

  Held/Ratio:

Power of the President to Create the Truth Commission 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.

 a) No, it cannot legitimize the creation of the PTC, however the President has the power to create ad hoc committees – such the PTC. 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, 

 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. 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?

 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.

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. 

 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.

 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. 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. In a case, 

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.

 b) No – 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.” 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. 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. 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.” 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.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. Even respondents themselves admit that the commission is bereft of any quasi-judicial power.

However, PTC cannot be succesfully created for it violated equal protection clause as it targeted only the past administration.

AbandonmentSummers v Ozaeta, G.R. No. L-1534, October 25, 1948Facts:

Summers was a cadastral judge who received an adterim appointment for the position of judge-at-large. He then assumed office as a judge-at-large. However, such appointment

was disapproved by the Commission on Appointments. He wanted to go back being a cadastral judge invoking section 9, Article VIII, of the Constitution, that he is entitled to continue as cadastral judge during good behavior until he reaches the age of seventy years or becomes incapacitated to discharge the duties of said office; that the positions of cadastral judge and judge-at-large are not incompatible and that therefore by the acceptance of the latter office he did not cease to be a cadastral judge, especially where his ad interim appointment was disapproved by the Commission on Appointments.

Issue/s:

WON, Summers can validly resumed as a cadastral judge.

Held/Ratio:

No. There can be no doubt about the constitutional right of member of the Supreme Court and judge of inferior court to hold offices during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. We believe, that said right is waivable and should be construed without prejudice to the legal effects of abandonment in proper cases.

We do not hesitate to rule that petitioner's voluntary acceptance of the position of judge-at-large consequent upon his taking of the oath of office on February 16, 1946, amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. But it is maintained that an ad interim appointment is merely temporary and the petitioner cannot be said to have vacated the office of cadastral judge in view of the rejection of said appointment by the Commission on Appointments. This point has to be resolved adversely to the petitioner, if we are to be consistent with the decision in Zandueta vs. De la Costa, supra, wherein it was held that "when a judge of first instance, presiding over a branch of a Court of First Instance of a judicial district by virtue of a legal and valid appointment, accepts another appointment to preside over the same branch of the same Court of First Instance, in addition to another court of the same category, both of which belong to a new judicial district formed by the addition of another Court of First Instance to the old one, enters into the discharge of the functions of his new office and receives the corresponding salary, he abandons his old office and cannot claim to be entitled to repossess it or question the constitutionality of the law by virtue of which his new appointment has been issued; and, said new appointment having been disapproved by the commission on Appointments of the National Assembly, neither can he claim to continue occupying the office conferred upon him by said new appointment, having ipso jure ceased in the discharge of the functions thereof.

Moreover, an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII, of the Constitution, which provides that the " President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an "acting" appointment which is merely temporary, good until another permanent appointment is issued. Thus, the decision in Santiago vs. Agustin, 46 Phil. 1, cannot be invoked by the petitioner because Santiago, while being a member of the municipal board of Manila, was designated only "Acting Mayor" and this Court held

that he did not thereby vacate his first office. Indeed, the distinction between an acting designation and a permanent appointment may be gathered from the following passage of the decision: "Mr. Santiago took the oath of office and qualified for the position of Acting Mayor of the City of Manila. He indicated to the Municipal Board his intention to fill the new office temporarily and then return to his position as member of the Municipal Board. Mr. Santiago never took the oath of office as Mayor of the City of Manila. He never qualified for the office of Mayor. He never accepted the office of Mayor. He did not at any time disclose an intention to abandon the office of member of the Municipal Board. There was no resignation, express or implied, from the latter office.

In the case at bar, the petitioner accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an "acting" judge-at-large. He cannot argue that said acceptance was conditioned upon the approval of the appointment by the Commission on Appointments, for, as stated in Zandueta vs. De la Costa, supra, the petitioner "knew, or at least he should know, that his ad interim appointment was subject to the approval of the Commission on Appointments of the National Assembly and that if said commission were to disapprove the same, it would become ineffective and he would cease discharging the office.

In a situation faced by the petitioner, the safer course to follow would have been for him to await the confirmation of the ad interim appointment before qualifying for and assuming the position of judge-at-large. A hasty acceptance on the part of an ad interim appointee, in the anxiety to enjoy either the higher honor or better material advantages of a second office, may lead to seemingly unfair consequences for which the appointing power should not be blamed. While in the ordinary course of things, an appointee certainly has the right to rely on his record and expect the approval of his appointment, it is nevertheless the better part of wisdom for one always to adopt the surer method which will, furthermore, protect him against any design, intentional or otherwise, to oust him from an office the tenure of which is fixed by the Constitution.

Under the comparison presented by the petitioner, the situation before us is undoubtedly not one wherein he may appropriately hold two compatible offices at one time such, for instance, as the positions of town recorder and county and probate judge, but one wherein he cannot legally hold two offices of similar category at the same time, like two positions of judge of first instance. At least, the petitioner does not contend that he can simultaneously occupy the position of cadastral judge and the office of judge-at-large, for this would of course be clearly against public policy. The law has created a fixed number of cadastral judges (Republic Act No. 156 and Executive Order No. 94, at P8,400 per annum each), and a fixed number of judge-at-large (Republic Act No. 156 and Executive Order No. 94, at P9,000 per annum each), and considerations of public interest must have been the basis thereof. If the petitioner can be a cadastral judge and a judge-at-large at the same time, the judicial positions as specified and created by law will be diminished by one. Authority in support of our proposition is not wanting. In State vs. Jones, 150 Wis., 572; 110 N. W., 431, it was held: "That realtor in a contest by quo warranto for the office of police justice of the city of Watertown was held to have no right to that office, because at the time he was holding the office of justice of the peace in the same city. The court said: 'We consider that the two offices are clearly incompatible with each other, and that one person cannot and should not hold both of them at the same time. In the plainest terms the charter gives the city four judicial officers of the grade of justice of the peace while, if the realtor could make good his right to the office of police justice it would, in fact, have but three.' This is a strong and authoritative declaration of public policy and it is said elsewhere that the incompatibility 'which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper from

consideration of public policy for one person to retain both.' (Mechem, Pub. Off., section 422 and cases.) Preliminary examinations in criminal cases may be held before a justice of the peace, country judge or court commissioner. Chapter 195, St. 1898. The consolidation in one person of the offices of country judge and justice of the peace diminishes the number of examining magistrates by one." And is State ex rel. Crawford vs. Anderson, 155 Iowa, 271, 136 N. W., 128, the same rule was stressed: "It is apparent from these several provisions of the law that the lawmaking power considered it for the public good and convenience to have three judicial officers in every township containing within its geographical limits an incorporated city, town, and that in criminal prosecutions under statute, these officers should have the same jurisdiction. And if this be true, can this plain purpose be thwarted by permitting one man to hold two of these offices? We think not, because the two offices are, in our judgment, incompatible when viewed in the light of the public policy expressed in the statutes creating them and defining their powers and duties. To hold otherwise would be to say that, in certain instances, there should be but two magistrates in the township, and it would become wholly without force and effect.

Incompatible office

ResignationOffice of the President v Cataquiz, G.R. No. 183445 September 14, 2011Facts:

Respondent Calixto R. Cataquiz (Cataquiz) was appointed as General Manager of the Laguna Lake Development Authority (LLDA). On April 1, 2003, a majority of the members of the Management Committee and the rank-and-file employees of the LLDA submitted to then Department of Environment and Natural Resources (DENR) Secretary Elisea G. Gozun (Secretary Gozun) their Petition for the Ouster of Cataquiz as LLDA General Manager on the grounds of corrupt and unprofessional behavior and management incompetence. In response, Secretary Gozun ordered the formation of an investigating team to conduct an inquiry into the allegations against Cataquiz. The results of the fact-finding activity were submitted in a Report dated May 21, 2003 in which it was determined that respondent may be found guilty for acts prejudicial to the best interest of the government and for violations of several pertinent laws and regulations. Consequently, the investigating team recommended that the case be forwarded to the Presidential Anti-Graft Commission (PAGC) for proper investigation.  In her Memorandum for the President dated May 23, 2003, Secretary Gozun reported that there is prima facie evidence to support some accusations against Cataquiz which may be used to pursue an administrative or criminal case against him. It was further noted that respondent lost his leadership credibility. In light of these, she recommended that Cataquiz be relieved from his position and that he be investigated by PAGC. On June 6, 2003, in a letter to then President Gloria Macapagal-Arroyo (President Arroyo), the Concerned Employees of the Laguna Lake Development Authority (CELLDA), a duly organized employees union of the LLDA, expressed their support for the petition to oust Cataquiz and likewise called for his immediate replacement.  Thereafter, CELLDA formally filed its Affidavit Complaint dated September 5, 2003 before PAGC charging Cataquiz with violations of Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act), Executive Order (E.O.) No. 292 (The Administrative Code) and R.A.

No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) (corrupt practices: directly transacted with fishpen operators and authorized payment of fishpen fees based on negotiated prices in violation of LLDA, condoned/granted reductions of fines and penalties and the like)

On December 5, 2003, PAGC issued a Resolution recommending to the President that the penalty of dismissal from the service with the accessory penalties of disqualification for re-employment in the public service and forfeiture of government retirement benefits be imposed upon Cataquiz. Thereafter, on December 8, 2003, Cataquiz was replaced by Fatima A.S. Valdez, who then assumed the position of Officer-in-Charge/General Manager and Chief Operating Officer of the LLDA by virtue of a letter of appointment dated December 3, 2003 issued by President Arroyo. 

Issue/s: 

(1) Whether the dismissal by the Ombudsman of the charges against Cataquiz serves as a bar to the decision of the OP; 

(2) Whether Cataquiz can be made to suffer the accessory penalties of disqualification from re-employment in the public service and forfeiture of government retirement benefits, despite his dismissal from the LLDA prior to the issuance by the PAGC and the OP of their decision and resolution, respectively;

Held/Ratio: 

1) The dismissal of the criminal case against Respondent does not bar the finding of administrative liability.  Cataquiz claims that the dismissal by the Ombudsman of the case against him constitutes the law of the case between him and the OP which necessitates the dismissal of the petition before this Court. The Ombudsman Resolution dated November 30, 2004 recommending the dismissal of the charges against him pertains only to the criminal case against him and not the administrative case, which is the subject matter of the case at bench. As can be gleaned from the Resolution, the charges referred to by the Ombudsman were for respondent’s alleged violation of Section 3(b) and (c) of R.A. No. 3019 or for malversation of public funds and fraud against the public treasury.

It is a basic rule in administrative law that public officials are under a three-fold responsibility for a violation of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and administratively liable for the same act. Obviously, administrative liability is separate and distinct from penal and civil liability. In the case of People v. Sandiganbayan, the Court elaborated on the difference between administrative and criminal liability: 

The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may

give rise to criminal as well as administrative liability. Accordingly, the dismissal of the criminal case by the Ombudsman does not foreclose administrative action against Cataquiz. His absolution from criminal liability is not conclusive upon the OP, which subsequently found him to be administratively liable. The pronouncement made by the Ombudsman cannot serve to protect the respondent from further administrative prosecution. A contrary ruling would be unsettling as it would undermine the very purpose of administrative proceedings, that is, to protect the public service and uphold the time-honored principle that a public office is a public trust. 2) Respondent can be imposed with the accessory penalties. Removal or resignation from office is not a bar to a finding of administrative liability. Despite his removal from his position, Cataquiz can still be held administratively liable for acts committed during his service as General Manager of the LLDA and he can be made to suffer the corresponding penalties. The subsequent finding by the OP that Cataquiz is guilty of the charges against him with the imposition of the penalty of dismissal and its corresponding accessory penalties is valid. It cannot be disputed that Cataquiz was a presidential appointee. As such, he was under the direct disciplining authority of the President who could legitimately have him dismissed from service. This is pursuant to the well-established principle that the President’s power to remove is inherent in his power to appoint. Therefore, it is well within the authority of the President to order the respondent’s dismissal.

Cataquiz argues that his removal has rendered the imposition of the principal penalty of dismissal impossible. Consequently, citing the rule that the accessory follows the principal, he insists that the accessory penalties may no longer be imposed on him.

The respondent is mistaken.  In the case of In Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico, despite the resignation from government service by the employee found guilty of grave misconduct, disgraceful and immoral conduct and violation of the Code of Conduct for Court Personnel, thereby making the imposition of the penalty of dismissal impossible, this Court nevertheless imposed the accessory penalties of forfeiture of benefits with prejudice to re-employment in any branch or instrumentality of government. Similarly instructive is the case of Pagano v. Nazarro, Jr. where the Court held that: 

The instant case is not moot and academic, despite the petitioner’s separation from government service. Even if the most severe of administrative sanctions – that of separation from service – may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits.

 Based on the foregoing, it is clear that the accessory penalties of disqualification

from re-employment in public service and forfeiture of government retirement benefits can still be imposed on the respondent, notwithstanding the impossibility of effecting the principal penalty of dismissal because of his removal from office.

Office of the Ombudsman v Andutan, G.R. No. 164679 July 27, 2011 

Facts:Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-career officials or those occupying political positions to vacate their positions effective July 1, 1998. On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF.

 On September 1, 1999, Andutan, together with Belicena, former Undersecretary, DOF; Malonzo, Tax Specialist I, DOF; Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia); Lapid, Vice-President, Steel Asia; Lorenzana, President and Chief Operating Officer, Steel Asia; and Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.

 The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others.

 On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March 13, 2000.

 Upon the respondents’ failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted for resolution.  On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations.

Issue/s:I.  Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative investigation a year after the act was committed?II. Does Andutan’s resignation render moot the administrative case filed against him?

Held/Ratio: I. No, provisions of Section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an investigation a year after the supposed act was committed.  

The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. In Office of the Ombudsman v. De Sahagun, the Court, speaking through Justice Austria-Martinez, held:

 [W]ell-entrenched is the rule that administrative offenses do not prescribe. Administrative offenses by their very nature pertain to the character of public officers and employees. In disciplining public officers and employees, the object sought is not the punishment of the officer or employee but the improvement of the public service and the preservation of the public’s faith and confidence in our government [Melchor v. Gironella, G.R. No. 151138,

February 16, 2005, 451 SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001)].

 The use of the word "may" clearly shows that it is directory in

nature and not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis supplied)

 The declaration of the CA in its assailed decision that while as a

general rule the word "may" is directory, the negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on statutory construction. [emphases and underscoring supplied]  

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to conduct the administrative investigation.

 However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsman’s authority to institute an administrative complaint against a government employee who had already resigned. On this issue, we rule in Andutan’s favor. II. Yes, Andutan’s resignation divests the Ombudsman of its right to institute an administrative complaint against him. Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at the time the case was filed.  To recall, we have held in the past that a public official’s resignation does not render moot an administrative case that was filed prior to the official’s resignation. In Pagano v. Nazarro, Jr., we held that: 

In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the service does not render moot the administrative case against him.  Resignation is not a way out to evade administrative liability when facing administrative sanction .     The resignation of a public servant does not preclude the finding of any administrative liability to which he or she shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied] 

 Likewise, in Baquerfo v. Sanchez, we held: 

Cessation from office of respondent by resignation neither warrants the dismissal of the administrative complaint filed against him while he was still in the service nor does it render said administrative case moot and academic. The jurisdiction that was this Court’s at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent’s resignation does not preclude the finding of any administrative liability to which he shall still be answerable. 

 However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court found that the public officials – subject of the administrative cases – resigned, either to prevent the continuation of a case already filed or to pre-empt the imminent filing of one. Here, neither situation obtains. The Ombudsman’s general assertion that Andutan pre-empted the filing of a case against him by resigning, since he “knew for certain that the investigative and disciplinary arms of the State would eventually reach him”] is unfounded. First , Andutan’s resignation was neither his choice nor of his own doing; he was forced to resign. Second , Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find reason in the Ombudsman’s sweeping assertions in light of these facts.

 What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the administrative case against him. Additionally, even if we were to accept the Ombudsman’s position that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the administrative case. Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman’s interpretation that “[a]s long as the breach of conduct was committed while the public official or employee was still in the service x x x a public servant’s resignation is not a bar to his administrative investigation, prosecution and adjudication.” If we agree with this interpretation, any official – even if he has been separated from the service for a long time – may still be subject to the disciplinary authority of his superiors, ad infinitum.

We believe that this interpretation is inconsistent with the principal motivation of the law – which is to improve public service and to preserve the public’s faith and confidence in the government, and not the punishment of the public official concerned. Likewise, if the act committed by the public official is indeed inimical to the interests of the State, other legal mechanisms are available to redress the same.  The possibility of imposing accessory penalties does not negate the Ombudsman’s lack of jurisdiction. The Ombudsman suggests that although the issue of Andutan’s removal from the service is moot, there is an “irresistible justification” to “determine whether or not there remains penalties capable of imposition, like bar from re-entering the public service and forfeiture of benefits.” Otherwise stated, since accessory penalties may still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the

inapplicability of the principal penalty of removal from office.  We find several reasons that militate against this position.

 First, although we have held that the resignation of an official does not render an administrative case moot and academic because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro, Jr., indeed, we held: 

 A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner’s separation from government service.   Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits. [emphasis and underscoring supplied]

  “that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the service does not render moot the administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction.” Our position that accessory penalties are still imposable – thereby negating the mootness of the administrative complaint – merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of the administrative complaint if Pagano’s filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:

 At the time petitioner filed her certificate of candidacy, petitioner

was already notified by the Provincial Treasurer that she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage of P1,424,289.99 in her accountabilities.  Moreover, she had already filed her answer.  To all intents and purposes, the administrative proceedings had already been commenced at the time she was considered separated from service through her precipitate filing of her certificate of candidacy.     Petitioner’s bad faith was manifest when she filed it, fully knowing that administrative proceedings were being instituted against her as part of the procedural due process in laying the foundation for an administrative case. (emphasis and underscoring supplied)

Plainly, our justification for the continuation of the administrative case – notwithstanding Pagano’s resignation – was her “bad faith” in filing the certificate of candidacy, and not the availability of accessory penalties.

 Second, we agree with the Ombudsman that “fitness to serve in public office x x x

is a question of transcendental [importance]” and that “preserving the inviolability of public office” compels the state to prevent the “re-entry [to] public service of persons who have x x x demonstrated their absolute lack of fitness to hold public office.” However, the State must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated, under the Ombudsman’s theory, the administrative

authorities may exercise administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly severed his ties with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to the law and the public policy behind it.  

Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office, but had already resigned or retired therefrom. Under the “threefold liability rule,” the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. Even if the Ombudsman may no longer file an administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal and civil cases to vindicate Andutan’s alleged transgressions. In fact, here, the Ombudsman – through the FFIB – filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest. CONCLUSION 

Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their constituencies well.

 While we commend the Ombudsman’s resolve in pursuing the present case for

violations allegedly committed by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman’s factual findings.  

RemovalOffice of the President v Cataquiz, G.R. No. 183445 September 14, 2011Respondent Calixto R. Cataquiz (Cataquiz) was appointed as General Manager of the Laguna Lake Development Authority (LLDA). On April 1, 2003, a majority of the members of the Management Committee and the rank-and-file employees of the LLDA submitted to then Department of Environment and Natural Resources (DENR) Secretary Elisea G. Gozun (Secretary Gozun) their Petition for the Ouster of Cataquiz as LLDA General Manager on the grounds of corrupt and unprofessional behavior and management incompetence. In response, Secretary Gozun ordered the formation of an investigating team to conduct an inquiry into the allegations against Cataquiz. The results of the fact-finding activity were submitted in a Report dated May 21, 2003 in which it was determined that respondent may be found guilty for acts prejudicial to the best interest of the government and for violations of several pertinent laws and regulations. Consequently, the investigating team recommended that the case be forwarded to the Presidential Anti-Graft Commission (PAGC) for proper investigation.  In her Memorandum for the President dated May 23, 2003, Secretary Gozun reported that there is prima facie evidence to support some accusations against Cataquiz which may be used to pursue an administrative or criminal case against him. It was further noted that respondent lost his leadership credibility. In light of these, she recommended that Cataquiz be relieved from his position and that he be investigated by PAGC.

 On June 6, 2003, in a letter to then President Gloria Macapagal-Arroyo (President Arroyo), the Concerned Employees of the Laguna Lake Development Authority (CELLDA), a duly organized employees union of the LLDA, expressed their support for the petition to oust Cataquiz and likewise called for his immediate replacement.  Thereafter, CELLDA formally filed its Affidavit Complaint dated September 5, 2003 before PAGC charging Cataquiz with violations of Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act), Executive Order (E.O.) No. 292 (The Administrative Code) and R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) (corrupt practices: directly transacted with fishpen operators and authorized payment of fishpen fees based on negotiated prices in violation of LLDA, condoned/granted reductions of fines and penalties and the like)

On December 5, 2003, PAGC issued a Resolution recommending to the President that the penalty of dismissal from the service with the accessory penalties of disqualification for re-employment in the public service and forfeiture of government retirement benefits be imposed upon Cataquiz. Thereafter, on December 8, 2003, Cataquiz was replaced by Fatima A.S. Valdez, who then assumed the position of Officer-in-Charge/General Manager and Chief Operating Officer of the LLDA by virtue of a letter of appointment dated December 3, 2003 issued by President Arroyo. 

Issue/s: 

(1) Whether the dismissal by the Ombudsman of the charges against Cataquiz serves as a bar to the decision of the OP; 

(2) Whether Cataquiz can be made to suffer the accessory penalties of disqualification from re-employment in the public service and forfeiture of government retirement benefits, despite his dismissal from the LLDA prior to the issuance by the PAGC and the OP of their decision and resolution, respectively;

Held/Ratio: 

1) The dismissal of the criminal case against Respondent does not bar the finding of administrative liability.  Cataquiz claims that the dismissal by the Ombudsman of the case against him constitutes the law of the case between him and the OP which necessitates the dismissal of the petition before this Court. The Ombudsman Resolution dated November 30, 2004 recommending the dismissal of the charges against him pertains only to the criminal case against him and not the administrative case, which is the subject matter of the case at bench. As can be gleaned from the Resolution, the charges referred to by the Ombudsman were for respondent’s alleged violation of Section 3(b) and (c) of R.A. No. 3019 or for malversation of public funds and fraud against the public treasury.

It is a basic rule in administrative law that public officials are under a three-fold responsibility for a violation of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and administratively liable for the same act. Obviously,

administrative liability is separate and distinct from penal and civil liability. In the case of People v. Sandiganbayan, the Court elaborated on the difference between administrative and criminal liability: 

The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may give rise to criminal as well as administrative liability.

 Accordingly, the dismissal of the criminal case by the Ombudsman does not foreclose administrative action against Cataquiz. His absolution from criminal liability is not conclusive upon the OP, which subsequently found him to be administratively liable. The pronouncement made by the Ombudsman cannot serve to protect the respondent from further administrative prosecution. A contrary ruling would be unsettling as it would undermine the very purpose of administrative proceedings, that is, to protect the public service and uphold the time-honored principle that a public office is a public trust. 2) Respondent can be imposed with the accessory penalties. Removal or resignation from office is not a bar to a finding of administrative liability. Despite his removal from his position, Cataquiz can still be held administratively liable for acts committed during his service as General Manager of the LLDA and he can be made to suffer the corresponding penalties. The subsequent finding by the OP that Cataquiz is guilty of the charges against him with the imposition of the penalty of dismissal and its corresponding accessory penalties is valid. It cannot be disputed that Cataquiz was a presidential appointee. As such, he was under the direct disciplining authority of the President who could legitimately have him dismissed from service. This is pursuant to the well-established principle that the President’s power to remove is inherent in his power to appoint. Therefore, it is well within the authority of the President to order the respondent’s dismissal.

Cataquiz argues that his removal has rendered the imposition of the principal penalty of dismissal impossible. Consequently, citing the rule that the accessory follows the principal, he insists that the accessory penalties may no longer be imposed on him.

The respondent is mistaken.  In the case of In Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico, despite the resignation from government service by the employee found guilty of grave misconduct, disgraceful and immoral conduct and violation of the Code of Conduct for Court Personnel, thereby making the imposition of the penalty of dismissal impossible, this Court nevertheless imposed the accessory penalties of forfeiture of benefits with prejudice to re-employment in any branch or instrumentality of government. Similarly instructive is the case of Pagano v. Nazarro, Jr. where the Court held that: 

The instant case is not moot and academic, despite the petitioner’s separation from government service. Even if the most severe of administrative sanctions – that of separation from service – may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government

office and the forfeiture of benefits. 

Based on the foregoing, it is clear that the accessory penalties of disqualification from re-employment in public service and forfeiture of government retirement benefits can still be imposed on the respondent, notwithstanding the impossibility of effecting the principal penalty of dismissal because of his removal from office.

In re Gonzales, 160 SCRA 771

Facts:

An indorsement letter from Mr. Gonzalez forwarding to Mr. Fernan a letter-complaint with enclosure of the Concerned Employees of the SC. Mr. Fernan brought this indorsement to the attention of the Court en banc because of its important implications of policy raised by said 1st indorsement.

The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Cuenco addressed to Hon. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention.

Issue/s:

Can a disbarment be made against Mr. Fernan, a member of the SC?

Held/Ratio:

No. It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms. A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office.

The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms:

There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in

Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id .), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id . and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id .), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied)

This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan, 1 the Court said:

The broad power of the New Constitution vests the respondent court with jurisdiction over "public officers and employees, including those in government-owned or controlled corporations." There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides:

Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption."

Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law.

Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that "judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)." The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance with law" may not prosper. 2

The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan

are substantially reproduced in Article XI of the 1987 Constitution:

Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Sec. 3 xxx xxx xxx

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.

It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings.

The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court.

It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings.

Recall

PrescriptionUnabia v City Mayor, 99 Phil. 253

Facts:

Petitioner was a foreman, Group Disposal, Office of the City Health Officer, Cebu City, at P3.90 per day. On June 16, 1953, the City Mayor removed him from the service and his place was taken by Perfecto Abellana, and latter by Pedro E. Gonzales. Before June 16, 1953, the Group Disposal Division, including personnel, was transferred from the City Health Department to the Office of the City Engineer. In April, 1954, Petitioner sought to be reinstated but his petition was not headed by the Respondents.

On the basis of the above facts, the Court of First Instance of Cebu held that Petitioner is a

person in the Philippine Civil Service, pertaining to the unclassified service (section 670, Revised Administrative Code as amended), and his removal from his position is a violation of section 694 of the Revised Administrative Code and section 4 of Art XII of the Constitution. The court further held that the notation at the bottom of Petitioner’s appointment to the effect that his appointment is “temporary pending report from the Government Service Insurance System as to the appointee’s physical and medical examination” did not make his appointment merely temporary.

Issue/s:

WON, petitioner could be allowed to claim the remedy as he being considered as having abandoned his office.

Held/Ratio:

No, he was deemed to have abandoned his office for his inaction. There is no reason for excluding persons in the unclassified service from the benefits extended to those belonging to the classified service. Both are expressly declared to belong to the Civil Service hence, the same rights and privileges should be accorded to both. Persons in the unclassified service are so designated because the nature of their work and qualifications are not subject to classification, which is not true of those appointed to the classified service. This cannot be a valid reason for denying privileges to the former that are granted the latter.

As the removal of Petitioner was made without investigation and without cause, said removal is null and void and Petitioner is entitled to be reinstated to the position from which he was removed.

If an employee is illegally dismissed, he may conform to such illegal dismissal or acquiesce therein, or by his inaction and by sleeping on his rights he may in law be considered as having abandoned the office to which he is entitled to be reinstated. These defenses are valid defenses to an action for reinstatement. To that effect is our decision in the case of Mesias vs. Jover, et al., 97 Phil., 899, decided November 22, 1955. In that case we cited with approval Nicolas vs. United States, 66 L. Ed. 133, and the following ruling therein contained:

“A person illegally dismissed from office is not thereby exonerated from the obligation to take steps for his own protection, and may not for an unreasonable length of time, acquiesce to the order of removal and then sue to recover the salary attached to the position. In case of unreasonable delay he may be held to have abandoned title to the office and any right to recover its emoluments.” (Mesias vs. Jover, supra.)

Difficulty in applying the principle lies in the fact that the law has not fixed any period which may be deemed to be considered as an abandonment of office. In the abovecited case decided by the Federal Supreme Court of the United States, 11 months was considered an unreasonable delay amounting to abandonment of office and of the right to recover its emoluments. However, we note that in actions of quo warranto involving right to an office, the action must be instituted within the period of one year. This has been the law in the island since 1901, the period having been originally fixed in section 216 of the Code of Civil Procedure (Act No. 190). We find this provision to be an expression of policy on the part of the State that persons claiming a right to an office of which they are illegally dispossessed should immediately take steps to recover said office and that if they do not do so within a period of one year, they shall be considered as having lost their right thereto by abandonment. There are weighty reasons of public policy and convenience that demand the adoption of a similar period for persons claiming rights to positions in the civil service. There must be stability in the service so that public business may be unduly retarded; delays in the statement of the right to positions in the service must be discouraged. The following considerations as to public officers, by Mr. Justice Bengzon,

may well be applicable to employees in the civil service:

“Furthermore, constitutional rights may certainly be waived, and the inaction of the officer for one year could be validly considered as waiver, i.e., a renunciation which no principle of justice may prevent, he being at liberty to resign his position anytime he pleases.

“And there is good justification for the limitation period; it is not proper that the title to public office should be subjected to continued uncertainly, and the peoples’ interest requires that such right should be determined as speedily as practicable.” (Tumulak vs. Egay, 46 Off. Gaz., [8], 3693, 3695.)

Further, the Government must be immediately informed or advised if any person claims to be entitled to an office or a position in the civil service as against another actually holding it, so that the Government may not be faced with the predicament of having to pay two salaries, one, for the person actually holding the office, although illegally, and another, for one not actually rendering service although entitled to do so. We hold that in view of the policy of the State contained in the law fixing the period of one year within which actions for quo warranto may be instituted, any person claiming right to a position in the civil service should also be required to file his petition for reinstatement within the period of one year, otherwise he is thereby considered as having abandoned his office.

One other point, merely procedural, needs to be considered. This is the fact that the objection as to the delay in filing the action is raised for the first time in this Court, not having been raised in the court below. The above circumstance (belated objection) would bar the consideration if it were a defense merely. However, we consider it to be essential to the Petitioner’s right of action that the same is filed within a year from the illegal removal. The delay is not merely a defense which may be interposed against it subject to waiver. It is essential to Petitioner’s cause of action and may be considered even at this stage of the action.

“We would go farther by holding that the period fixed in the rule is a condition precedent to the existence of the cause of action, with the result that, if a complaint is not filed within one year, it cannot prosper although the matter is not set up in the answer or motion to dismiss.” (Abeto vs. Rodas, 46 Off. Gaz., [3], 930, 932.)

A defense of failure to state a causes of action is not waived by failure to raise same as a defense (section 10, Rule 9).

Failure to assume officeSection 11, Omnibus Election Code:

Failure to assume office. - The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control.