Public Officers With Highlights.docx

FIRST DIVISION G.R. No. 145368

Sec. 4. The Commission shall be funded with an initial budget to be drawn from the April 12, 2002

Department of Tourism and the president’s Contingent Fund, in an amount to be

SALVADOR H. LAUREL, petitioner,

recommended by the Commission, and approved by the President. Appropriations

vs.

for succeeding years shall be incorporated in the budget of the Office of the Presi-

HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent.

dent.

KAPUNAN, J.:

Subsequently, a corporation named the Philippine Centennial Expo ’98 Corporation

On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223

(Expocorp) was created.4 Petitioner was among the nine (9) Expocorp incorporators,

"constituting a Committee for the preparation of the National Centennial Celebration

who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Ex-

in 1998." The Committee was mandated "to take charge of the nationwide prepara-

ecutive Officer.

tions for the National Celebration of the Philippine Centennial of the Declaration of

On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech

Philippine Independence and the Inauguration of the Malolos

Congress."1

in the Senate denouncing alleged anomalies in the construction and operation of the

Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconsti-

Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of

tuting the Committee for the preparation of the National Centennial Celebrations in

Senator Franklin Drilon, Senator Coseteng’s privilege speech was referred to the

1988." It renamed the Committee as the "National Centennial Commission." Ap-

Committee on Accountability of Public Officers and Investigation (The Blue Ribbon

pointed to chair the reconstituted Commission was Vice-President Salvador H. Lau-

Committee) and several other Senate Committees for investigation.

rel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary

On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35,

Chairpersons.2

creating an ad hoc and independent citizens’ committee to investigate all the facts

Characterized as an "i body," the existence of the Commission "shall terminate upon the completion of all activities related to the Centennial

Celebrations."3

Like its pre-

and circumstances surrounding the Philippine centennial projects, including its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the

decessor Committee, the Commission was tasked to "take charge of the nationwide

Committee.

preparations for the National Celebration of the Philippine Centennial of the Decla-

On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of

ration of Philippine Independence and the Inauguration of the Malolos Congress."

the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the

Per Section 6 of the Executive Order, the Commission was also charged with the

Committee’s recommendations was "the prosecution by the Ombudsman/DOJ of Dr.

responsibility to "prepare, for approval of the President, a Comprehensive Plan for

Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public

the Centennial Celebrations within six (6) months from the effectivity of" the Exec-

bidding, relative to the award of centennial contracts to AK (Asia Construction &

utive Order.

Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice

E.O. No. 128 also contained provisions for staff support and funding:

to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid

Sec. 3. The Commission shall be provided with technical and administrative staff

contract that has caused material injury to government and for participating in the

support by a Secretariat to be composed of, among others, detailed personnel from

scheme to preclude audit by COA of the funds infused by the government for the

the Presidential Management Staff, the National Commission for Culture and the

implementation of the said contracts all in violation… of the anti-graft law."5

Arts, and the National Historical Institute. Said Secretariat shall be headed by a full

Later, on November 5, 1999, the Saguisag Committee issued its own report. It rec-

time Executive Director who shall be designated by the President.

ommended "the further investigation by the Ombudsman, and indictment, in proper

cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e)

In a Resolution dated September 24, 2001, the Court issued a temporary restraining

of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article

order, commanding respondents to desist from filing any information before the

217 of the Revised Penal Code.

Sandiganbayan or any court against petitioner for alleged violation of Section 3(e)

The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently

of the Anti-Graft and Corrupt Practices Act.

referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman.

On November 14, 2001, the Court, upon motion of petitioner, heard the parties in

On January 27, 2000, the Bureau issued its Evaluation Report, recommending:

oral argument.

1. that a formal complaint be filed and preliminary investigation be conducted before

Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a

the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombuds-

public officer because:

man against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP

A.

President Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of Sec.

EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDER-

3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules

TOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS

and Regulations;

OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED,

2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal

WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED

complainant.6

CORPORATION.

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation

B.

and Preliminary Investigation Bureau, directed petitioner to submit his counter-affi-

THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.

davit and those of his witnesses.

C.

On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A

Dismiss questioning the jurisdiction of said office.

"PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES

In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to

ACT.7

dismiss.

In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs. Sandi-

On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order

ganbayan,9 where it was held that the jurisdiction of the Ombudsman was limited to

but the motion was denied in an Order dated October 5, 2000.

cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and

On October 25, 2000, petitioner filed the present petition for certiorari.

higher. As petitioner’s position was purportedly not classified as Grade 27 or higher,

On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued

the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction

a resolution finding "probable cause to indict respondents SALVADOR H. LAUREL

over him.

and TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section

This last contention is easily dismissed. In the Court’s decision in Uy, we held that

3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution

"it is the prosecutor, not the Ombudsman, who has the authority to file the corre-

also directed that an information for violation of the said law be filed against Laurel

sponding information/s against petitioner in the regional trial court. The Ombudsman

and Peña. Ombudsman Aniano A. Desierto approved the resolution with respect to

exercises prosecutorial powers only in cases cognizable by the Sandiganbayan."

Laurel but dismissed the charge against Peña.

In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority of the State

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cog-

and regular provincial and city prosecutors under the Department of Justice to have

nizable by the Sandiganbayan. The law defines such primary jurisdiction as author-

control over prosecution of cases falling within the jurisdiction of the regular courts.

izing the Ombudsman "to take over, at any stage, from any investigatory agency of

The investigation and prosecutorial powers of the Ombudsman relate to cases right-

the government, the investigation of such cases." The grant of this authority does

fully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A.

not necessarily imply the exclusion from its jurisdiction of cases involving public of-

6770 ("An Act Providing for the Functional and Structural Organization of the Office

ficers and employees by other courts. The exercise by the Ombudsman of his pri-

of the Ombudsman, and for other purposes") which vests upon the Ombudsman

mary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible

"primary jurisdiction over cases cognizable by the Sandiganbayan…" And this is fur-

with the discharge of his duty to investigate and prosecute other offenses committed

ther buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of

by public officers and employees. Indeed, it must be stressed that the powers

the Special Prosecutor shall have the power to "conduct preliminary investigation

granted by the legislature to the Ombudsman are very broad and encompass all

and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus,

kinds of malfeasance, misfeasance and non-feasance committed by public officers

repeated references to the Sandiganbayan’s jurisdiction clearly serve to limit the

and employees during their tenure of office.

Ombudsman’s and Special Prosecutor’s authority to cases cognizable by the Sandi-

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated

ganbayan. [Emphasis in the original.]

with the limited authority of the Special Prosecutor under Section 11 of RA 6770.

The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification

The Office of the Special Prosecutor is merely a component of the Office of the

by the Ombudsman in the same case, the Court set aside the foregoing pronounce-

Ombudsman and may only act under the supervision and control and upon authority

ment in its Resolution dated March 20, 2001. The Court explained the rationale for

of the Ombudsman. Its power to conduct preliminary investigation and to prosecute

this reversal:

is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly,

The power to investigate and to prosecute granted by law to the Ombudsman is

the lawmakers did not intend to confine the investigatory and prosecutory power of

plenary and unqualified. It pertains to any act or omission of any public officer or

the Ombudsman to these types of cases. The Ombudsman is mandated by law to

employee when such act or omission appears to be illegal, unjust, improper or inef-

act on all complaints against officers and employees of the government and to en-

ficient. The law does not make a distinction between cases cognizable by the San-

force their administrative, civil and criminal liability in every case where the evidence

diganbayan and those cognizable by regular courts. It has been held that the clause

warrants. To carry out this duty, the law allows him to utilize the personnel of his

"any illegal act or omission of any public official" is broad enough to embrace any

office and/or designate any fiscal, state prosecutor or lawyer in the government

crime committed by a public officer or employee.

service to act as special investigator or prosecutor to assist in the investigation and

The reference made by RA 6770 to cases cognizable by the Sandiganbayan, partic-

prosecution of certain cases. Those designated or deputized to assist him work under

ularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cog-

his supervision and control. The law likewise allows him to direct the Special Prose-

nizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor

cutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with

the power to conduct preliminary investigation and prosecute criminal cases within

Section 11 (4c) of RA 6770.

the jurisdiction of the Sandiganbayan, should not be construed as confining the

The prosecution of offenses committed by public officers and employees is one of

scope of the investigatory and prosecutory power of the Ombudsman to such cases.

the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active

and effective agent of the people in ensuring accountability in public office. A review

The coverage of the law appears to be limited only by Section 16, in relation to

of the development of our Ombudsman law reveals this intent. [Emphasis in the

Section 13, supra:

original.]

SEC 16. Applicability. – The provisions of this Act shall apply to all kinds of malfea-

Having disposed of this contention, we proceed to the principal grounds upon which

sance, misfeasance and non-feasance that have been committed by any officer or

petitioner relies. We first address the argument that petitioner, as Chair of the NCC,

employee as mentioned in Section 13 hereof, during his tenure of office.

was not a public officer.

In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance

The

Constitution10

describes the Ombudsman and his Deputies as "protectors of the

and non-feasance by a public officer or employee of the government, or of any

people," who "shall act promptly on complaints filed in any form or manner against

subdivision, agency or instrumentality thereof, including government-owned or con-

public officials or employees of the government, or any subdivision, agency or in-

trolled corporations.12

strumentality thereof, including government-owned or controlled corporations."

Neither the Constitution nor the Ombudsman Act of 1989, however, defines who

Constitution11 upon

public officers are. A definition of public officers cited in jurisprudence13 is that pro-

Among the awesome powers, functions, and duties vested by the

the Office of the Ombudsman is to "[i]nvestigate… any act or omission of any public

vided by Mechem, a recognized authority on the subject:

official, employee, office or agency, when such act or omission appears to be illegal,

A public office is the right, authority and duty, created and conferred by law, by

unjust, improper, or inefficient."

which, for a given period, either fixed by law or enduring at the pleasure of the

The foregoing constitutional provisions are substantially reproduced in R.A. No.

creating power, an individual is invested with some portion of the sovereign func-

6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of

tions of the government, to be exercised by him for the benefit of the public. The

said law respectively provide:

individual so invested is a public officer.14

SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of the people

The characteristics of a public office, according to Mechem, include the delegation

shall act promptly on complaints file in any form or manner against officers or em-

of sovereign functions, its creation by law and not by contract, an oath, salary, con-

ployees of the Government, or of any subdivision, agency or instrumentality thereof,

tinuance of the position, scope of duties, and the designation of the position as an

including government-owned or controlled corporations, and enforce their adminis-

office.15

trative, civil and criminal liability in every case where the evidence warrants in order

Petitioner submits that some of these characteristics are not present in the position

to promote efficient service by the Government to the people.

of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have

purportedly did not receive any compensation; and (3) continuance, the tenure of

the following powers, functions and duties:

the NCC being temporary.

(1) Investigate and prosecute on its own or on complaint by any person, any act or

Mechem describes the delegation to the individual of some of the sovereign functions

omission of any public officer or employee, office or agency, when such act or omis-

of government as "[t]he most important characteristic" in determining whether a

sion appears to be illegal unjust, improper or inefficient. It has primary jurisdiction

position is a public office or not.

over cases cognizable by the Sandiganbayan and, in the exercise of this primary

The most important characteristic which distinguishes an office from an employment

jurisdiction, it may take over, at any stage, from any investigatory agency of Gov-

or contract is that the creation and conferring of an office involves a delegation to

ernment, the investigation of such cases;

the individual of some of the sovereign functions of government, to be exercised by

x x x.

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

x x x.

exercised for the public benefit. Unless the powers conferred are of this nature, the

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations

individual is not a public

officer.16

in 1998, cited the "need to strengthen the said Committee to ensure a more coordi-

Did E.O. 128 delegate the NCC with some of the sovereign functions of government?

nated and synchronized celebrations of the Philippine Centennial and wider partici-

Certainly, the law did not delegate upon the NCC functions that can be described as

pation from the government and non-government or private organizations." It also

legislative or judicial. May the functions of the NCC then be described as executive?

referred to the "need to rationalize the relevance of historical links with other coun-

We hold that the NCC performs executive functions. The executive power "is gener-

tries."

ally defined as the power to enforce and administer the laws. It is the power of

The NCC was precisely created to execute the foregoing policies and objectives, to

observance."17 The

carry them into effect. Thus, the Commission was vested with the following func-

carrying the laws into practical operation and enforcing their due

executive function, therefore, concerns the implementation of the policies as set

tions:

forth by law.

(a) To undertake the overall study, conceptualization, formulation and implementa-

The Constitution provides in Article XIV (Education, Science and Technology, Arts,

tion of programs and projects on the utilization of culture, arts, literature and media

Culture, and Sports) thereof:

as vehicles for history, economic endeavors, and reinvigorating the spirit of national

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall

unity and sense of accomplishment in every Filipino in the context of the Centennial

conserve, promote, and popularize the nation’s historical and cultural heritage and

Celebrations. In this regard, it shall include a Philippine National Exposition ’98 within

resources, as well as artistic creations.

Metro Manila, the original eight provinces, and Clark Air Base as its major venues;

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee

(b) To act as principal coordinator for all the activities related to awareness and

for the National Centennial Celebrations in 1998:

celebration of the Centennial;

Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and

(c) To serve as the clearing house for the preparation and dissemination of all infor-

the centennial presents an important vehicle for fostering nationhood and a strong

mation about the plans and events for the Centennial Celebrations;

sense of Filipino identity;

(d) To constitute working groups which shall undertake the implementation of the

Whereas, the centennial can effectively showcase Filipino heritage and thereby

programs and projects;

strengthen Filipino values;

(e) To prioritize the refurbishment of historical sites and structures nationwide. In

Whereas, the success of the Centennial Celebrations may be insured only through

this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-

long-range planning and continuous developmental programming;

transfer, build-operate-transfer, and similar arrangements) to ensure the preserva-

Whereas, the active participation of the private sector in all areas of special expertise

tion and maintenance of the historical sites and structures;

and capability, particularly in communication and information dissemination, is nec-

(f) To call upon any government agency or instrumentality and corporation, and to

essary for long-range planning and continuous developmental programming;

invite private individuals and organizations to assist it in the performance of its tasks;

Whereas, there is a need to create a body which shall initiate and undertake the

and,

primary task of harnessing the multisectoral components from the business, cultural,

(g) Submit regular reports to the President on the plans, programs, projects, activi-

and business sectors to serve as effective instruments from the launching and over-

ties as well as the status of the preparations for the Celebration.18

seeing of this long-term project;

It bears noting the President, upon whom the executive power is vested,19 created

Petitioner argues that the "holding of a nationwide celebration which marked the

the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance

nation’s 100th birthday may be likened to a national fiesta which involved only the

Power), Section 2 describes the nature of executive orders:

exercise of the national government’s proprietary function."22 In Torio, we held:

SEC. 2. Executive Orders. – Acts of the President providing for rules of a general or

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]

permanent character in implementation or execution of constitutional or statutory

simply gives authority to the municipality to [celebrate] a yearly fiesta but it does

powers shall be promulgated in executive orders. [Underscoring ours.]

not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to

Furthermore, the NCC was not without a role in the country’s economic develop-

commemorate a religious or historical event of the town is in essence an act for the

ment, especially in Central Luzon. Petitioner himself admitted as much in the oral

special benefit of the community and not for the general welfare of the public per-

arguments before this Court:

formed in pursuance of a policy of the state. The mere fact that the celebration, as

MR. JUSTICE REYNATO S. PUNO:

claimed, was not to secure profit or gain but merely to provide entertainment to the

And in addition to that expounded by Former President Ramos, don’t you agree that

town inhabitants is not a conclusive test. For instance, the maintenance of parks is

the task of the centennial commission was also to focus on the long term over all

not a source of income for the town, nonetheless it is [a] private undertaking as

socio economic development of the zone and Central Luzon by attracting investors

distinguished from the maintenance of public schools, jails, and the like which are

in the area because of the eruption of Mt. Pinatubo.

for public service.

FORMER VICE PRESIDENT SALVADOR H. LAUREL:

As stated earlier, there can be no hard and fast rule for purposes of determining the

I am glad Your Honor touched on that because that is something I wanted to touch

true nature of an undertaking or function of a municipality; the surrounding circum-

on by lack of material time I could not but that is a very important point. When I

stances of a particular case are to be considered and will be decisive. The basic

was made Chairman I wanted the Expo to be in Batangas because I am a Batangeño

element, however beneficial to the public the undertaking may be, is that it is gov-

but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering

ernment in essence, otherwise, the function becomes private or propriety in charac-

because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery

ter. Easily, no governmental or public policy of the state is involved in the celebration

in that area by putting this Expo in Clark Field and so it was done I agreed and Your

of a town fiesta.

Honor if I may also mention we wanted to generate employment aside from attract-

Torio, however, did not intend to lay down an all-encompassing doctrine. Note that

ing business investments and employment. And the Estrada administration decided

the Court cautioned that "there can be no hard and fast rule for purposes of deter-

to junk this project there 48, 40 thousand people who lost job, they were employed

mining the true nature of an undertaking or function of a municipality; the surround-

in Expo. And our target was to provide 75 thousand jobs. It would have really cali-

ing circumstances of a particular case are to be considered and will be decisive."

brated, accelerated the development of Central Luzon. Now, I think they are going

Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the

back to that because they had the airport and there are plan to revive the Expo site

"surrounding circumstances plus the political, social, and cultural backgrounds" could

into key park which was the original plan.

produce a conclusion different from that in Torio:

There can hardly be any dispute that the promotion of industrialization and full em-

We came across an interesting case which shows that surrounding circumstances

ployment is a fundamental state policy.20

plus the political, social, and cultural backgrounds may have a decisive bearing on

Petitioner invokes the ruling of this Court in Torio vs.

Fontanilla21 that

the holding by

a municipality of a town fiesta is a proprietary rather than a governmental function.

this question. The case of Pope v. City of New Haven, et al. was an action to recover

damages for personal injuries caused during a Fourth of July fireworks display re-

Surely, a town fiesta cannot compare to the National Centennial Celebrations. The

sulting in the death of a bystander alleged to have been caused by defendants’

Centennial Celebrations was meant to commemorate the birth of our nation after

negligence. The defendants demurred to the complaint invoking the defense that

centuries of struggle against our former colonial master, to memorialize the libera-

the city was engaged in the performance of a public governmental duty from which

tion of our people from oppression by a foreign power. 1998 marked 100 years of

it received no pecuniary benefit and for negligence in the performance of which no

independence and sovereignty as one united nation. The Celebrations was an occa-

statutory liability is imposed. This demurrer was sustained by the Superior Court of

sion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it,

New Haven Country. Plaintiff sought to amend his complaint to allege that the cele-

it was a "vehicle for fostering nationhood and a strong sense of Filipino identity," an

bration was for the corporate advantage of the city. This was denied. In affirming

opportunity to "showcase Filipino heritage and thereby strengthen Filipino values."

the order, the Supreme Court of Errors of Connecticut held inter alia:

The significance of the Celebrations could not have been lost on petitioner, who

Municipal corporations are exempt from liability for the negligent performance of

remarked during the hearing:

purely public governmental duties, unless made liable by statute….

Oh, yes, certainly the State is interested in the unity of the people, we wanted to

A municipality corporation, which under permissive authority of its charter or of stat-

rekindle the love for freedom, love for country, that is the over-all goal that has to

ute, conducted a public Fourth of July celebration, including a display of fireworks,

make everybody feel proud that he is a Filipino, proud of our history, proud of what

and sent up a bomb intended to explode in the air, but which failed to explode until

our forefather did in their time. x x x.

it reached the ground, and then killed a spectator, was engaged in the performance

Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and

of a governmental duty. (99 A.R. 51)

petitioner, as its Chair, is a public officer.

This decision was concurred in by three Judges while two dissented.

That petitioner allegedly did not receive any compensation during his tenure is of

At any rate the rationale of the Majority Opinion is evident from [this] excerpt:

little consequence. A salary is a usual but not a necessary criterion for determining

"July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called

the nature of the position. It is not conclusive. The salary is a mere incident and

Independence Day, by our statutes. All or nearly all of the other states have similar

forms no part of the office. Where a salary or fees is annexed, the office is provided

statutes. While there is no United States statute making a similar provision, the dif-

for it is a naked or honorary office, and is supposed to be accepted merely for the

ferent departments of the government recognize, and have recognized since the

public good.23 Hence, the office of petitioner as NCC Chair may be characterized as

government was established, July 4th as a national holiday. Throughout the country

an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to

it has been recognized and celebrated as such. These celebrations, calculated to

which salary, compensation or fees are attached.24 But it is a public office, nonethe-

entertain and instruct the people generally and to arouse and stimulate patriotic

less.

sentiments and love of country, frequently take the form of literary exercises con-

Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc

sisting of patriotic speeches and the reading of the Constitution, accompanied by a

body" make said commission less of a public office.

musical program including patriotic air sometimes preceded by the firing of cannon

The term office, it is said, embraces the idea of tenure and duration, and certainly a

and followed by fireworks. That such celebrations are of advantage to the general

position which is merely temporary and local cannot ordinarily be considered an

public and their promotion a proper subject of legislation can hardly be questioned.

office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is

x x x"

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

raise and disburse the funds. It was to be organized under the direction of the com-

the person be changed, -- it seems very difficult to distinguish such a charge or

mission. The seventh section of the act provides "that the grounds for exhibition

employment from an office of the person who performs the duties from an officer."

shall be prepared and the buildings erected by the corporation, in accordance with

At the same time, however, this element of continuance can not be considered as

plans which shall have been adopted by the United States Centennial Commission;

indispensable, for, if the other elements are present "it can make no difference,"

and the rules and regulations of said corporation, governing rates for entrance and

says Pearson, C.J., "whether there be but one act or a series of acts to be done, --

admission fees, or otherwise affecting the rights, privileges, or interests of the ex-

whether the office expires as soon as the one act is done, or is to be held for years

hibitors, or of the public, shall be fixed and established by the United States Centen-

or during good behavior."25

nial Commission; and no grant conferring rights or privileges of any description conCorliss.26 There

Our conclusion that petitioner is a public officer finds support in In Re

nected with said grounds or buildings, or relating to said exhibition or celebration,

the Supreme Court of Rhode Island ruled that the office of Commissioner of the

shall be made without the consent of the United States Centennial Commission, and

United States Centennial Commission is an "office of trust" as to disqualify its holder

said commission shall have power to control, change, or revoke all such grants, and

as elector of the United States President and Vice-President. (Under Article II of the

shall appoint all judges and examiners and award all premiums." The tenth section

United States Constitution, a person holding an office of trust or profit under the

of the act provides that "it shall be the duty of the United States Centennial Com-

United States is disqualified from being appointed an elector.)

mission to supervise the closing up of the affairs of said corporation, to audit its

x x x. We think a Commissioner of the United States Centennial Commission holds

accounts, and submit in a report to the President of the United States the financial

an office of trust under the United States, and that he is therefore disqualified for

results of the centennial exhibition."

the office of elector of President and Vice-President of the United States.

It is apparent from this statement, which is but partial, that the duties and functions

The commission was created under a statute of the United States approved March

of the commission were various, delicate, and important; that they could be suc-

3, 1871. That statute provides for the holding of an exhibition of American and for-

cessfully performed only by men of large experience and knowledge of affairs; and

eign arts, products, and manufactures, "under the auspices of the government of

that they were not merely subordinate and provisional, but in the highest degree

the United States," and for the constitution of a commission, to consist of more than

authoritative, discretionary, and final in their character. We think that persons per-

one delegate from each State and from each Territory of the United States, "whose

forming such duties and exercising such functions, in pursuance of statutory direc-

functions shall continue until close of the exhibition," and "whose duty it shall be to

tion and authority, are not to be regarded as mere employees, agents, or committee

prepare and superintend the execution of the plan for holding the exhibition." Under

men, but that they are, properly speaking, officers, and that the places which they

the statute the commissioners are appointed by the President of the United States,

hold are offices. It appears, moreover, that they were originally regarded as officers

on the nomination of the governor of the States and Territories respectively. Various

by Congress; for the act under which they were appointed declares, section 7, that

duties were imposed upon the commission, and under the statute provision was to

"no compensation for services shall be paid to the commissioners or other officers,

be made for it to have exclusive control of the exhibit before the President should

provided for in this act, from the treasury of the United States." The only other

announce, by proclamation, the date and place of opening and holding the exhibi-

officers provided for were the "alternates" appointed to serve as commissioners

tion. By an act of Congress approved June 1st, 1872, the duties and functions of the

when the commissioners were unable to attend.

commission were further increased and defined. That act created a corporation,

Having arrived at the conclusion that the NCC performs executive functions and is,

called "The Centennial Board of Finance," to cooperate with the commission and to

therefore, a public office, we need no longer delve at length on the issue of whether

Expocorp is a private or a public corporation. Even assuming that Expocorp is a

Moreover, the question of whether petitioner is a public officer under the Anti-Graft

private corporation, petitioner’s position as Chief Executive Officer (CEO) of

and Corrupt Practices Act involves the appreciation of evidence and interpretation of

Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omis-

law, matters that are best resolved at trial.

sions as CEO of Expocorp must be viewed in the light of his powers and functions

To illustrate, the use of the term "includes" in Section 2 (b) indicates that the defi-

as NCC

Chair.27

nition is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just one of sev-

Finally, it is contended that since petitioner supposedly did not receive any compen-

eral laws that define "public officers." Article 203 of the Revised Penal Code, for

sation for his services as NCC or Expocorp Chair, he is not a public officer as defined

example, provides that a public officer is:

in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore,

x x x any person who, by direct provision of law, popular election or appointment by

beyond the jurisdiction of the Ombudsman.

competent authority, takes part in the performance of public functions in the Gov-

Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,

ernment of Philippines, or performs in said Government or in any of its branches

which reads:

public duties as an employee, agent or subordinate official, of any rank or class.

SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of

Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,29

public officers already penalized by existing law, the following shall constitute corrupt

on the other hand, states:

practices of any public officer and are hereby declared to be unlawful:

Officer – as distinguished from "clerk" or "employee", refers to a person whose du-

xxx

ties not being of a clerical or manual nature, involves the exercise of discretion in

(e) Causing any undue injury to any party, including the Government, or giving any

the performance of the functions of the government. When used with reference to

private party any unwarranted benefits, advantage or preference in the discharge of

a person having authority to do a particular act or perform a particular person in the

his official, administrative or judicial functions through manifest partiality, evident

exercise of governmental power, "officer" includes any government employee, agent

bad faith or gross inexcusable negligence. This provision shall apply to officers and

or body having authority to do the act or exercise that function.

employees of offices or government corporations charged with the grant of licenses

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of

or permits or other concessions.

Conduct and Ethical Standards for Public Officials and Employees), one may be con-

A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows:

sidered a "public official" whether or not one receives compensation, thus:

SEC. 2. Definition of terms. – As used in this Act, the term –

"Public Officials" include elective and appointive officials and employees, permanent

xxx

or temporary, whether in the career or non-career service including military and

(b) "Public officer" includes elective and appointive officials and employees, perma-

police personnel, whether or not they receive compensation, regardless of amount.

nent or temporary, whether in the classified or unclassified or exemption service

Which of these definitions should apply, if at all?

receiving compensation, even nominal, from the government as defined in the pre-

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term

ceding paragraph. [Emphasis supplied.]

"compensation," which is not defined by said law, has many meanings.

It is clear from Section 2 (b), above, that the definition of a "public officer" is ex-

Under particular circumstances, "compensation" has been held to include allowance

pressly limited to the application of R.A. No. 3019. Said definition does not apply for

for personal expenses, commissions, expenses, fees, an honorarium, mileage or

purposes of determining the Ombudsman’s jurisdiction, as defined by the Constitu-

traveling expenses, payments for services, restitution or a balancing of accounts,

tion and the Ombudsman Act of 1989.

salary, and wages.30

How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted? Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems and compensation.31 Would such fact bear any significance? Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving them. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Court’s Resolution dated September 24, 2001 is hereby LIFTED. SO ORDERED. EN BANC G. R. No. 155027

February 28, 2006

THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda, Petitioner, vs. Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E. BATENGA in his capacity as Undersecretary for Civil Relations and Administration of the Department of National Defense, Respondents. DECISION CHICO-NAZARIO, J.: This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer to declare as void Department Circular No. 04 of the Department of National Defense (DND), dated 10 June 2002. Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under Republic Act No. 2640, dated 18 June 1960, as amended, and duly registered with the Securities and Exchange Commission. Respondent Angelo T. Reyes was the Secretary of National Defense (DND Secretary) who issued the assailed Department Circular No. 04, dated 10 June 2002. Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations and Administration who was

tasked by the respondent DND Secretary to conduct an extensive management audit

wit: the Philippine Veterans Administrator, the President of the Veteran’s Federation

of the records of petitioner.

of the Philippines and the Secretary of National Defense x x x.

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

It is therefore in the context of clarification and rectification of what should have

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

been done by the DND (Department of National Defense) for and about the VFP and

1960.

PVB that I am requesting appropriate information and report about these two cor-

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

porate bodies.

2002 which reads:

Therefore it may become necessary that a conference with your staffs in these two

Col. Emmanuel V. De Ocampo (Ret.)

bodies be set.

President

Thank you and anticipating your action on this request.

Veterans Federation of the Philippines

Very truly yours,

Makati, Metro Manila

(SGD) ANGELO T. REYES

Dear Col. De Ocampo:

[DND] Secretary

Please be informed that during the preparation of my briefing before the Cabinet

On 10 June 2002, respondent DND Secretary issued the assailed DND Department

and the President last March 9, 2002, we came across some legal bases which

Circular No. 04 entitled, "Further Implementing the Provisions of Sections 12 and 23

tended to show that there is an organizational and management relationship be-

of Republic Act No. 2640," the full text of which appears as follows:

tween Veterans Federation of the Philippines and the Philippine Veterans Bank which

Department of National Defense

for many years have been inadvertently overlooked.

Department Circular No. 04

I refer to Republic Act 2640 creating the body corporate known as the VFP and

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

Republic Act 3518 creating the Phil. Vets [sic] Bank.

Republic Act No. 2640

1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under

Authority: Republic Act No. 2640

the control and supervision of the Secretary of National Defense."

Executive Order No. 292 dated July 25, 1987

2. RA 2640 Section 12 ... "On or before the last day of the month following the end

Section 1

of each fiscal year, the Federation shall make and transmit to the President of the

These rules shall govern and apply to the management and operations of the Vet-

Philippines or to the Secretary of National Defense, a report of its proceedings for

erans Federation of the Philippines (VFP) within the context provided by EO 292 s-

the past year, including a full, complete and itemized report of receipts and expend-

1987.

itures of whatever kind."

Section 2 – DEFINITION OF TERMS – for the purpose of these rules, the terms,

3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans

phrases or words used herein shall, unless the context indicates otherwise, mean or

Bank, and for Other Purposes) provides in Section 6 that ... "the affairs and business

be understood as follows:

of the Philippine Veterans Bank shall be directed and its property managed, con-

Supervision and Control – it shall include authority to act directly whenever a specific

trolled and preserved, unless otherwise provided in this Act, by a Board of Directors

function is entrusted by law or regulation to a subordinate; direct the performance

consisting of eleven (11) members to be composed of three ex officio members to

of a duty; restrain the commission of acts; approve, reverse or modify acts and

decisions of subordinate officials or units; determine priorities in the execution of

the Vietnam campaign, the Anti-dissidence campaign, or other wars or military cam-

plans and programs; and prescribe standards, guidelines, plans and programs.

paigns; or who rendered military service in the Armed Forces of the Philippines and

Power of Control – power to alter, modify, nullify or set aside what a subordinate

has been honorably discharged or separated after at least six (6) years total cumu-

officer had done in the performance of his duties and to substitute the judgment of

lative active service or sooner separated due to the death or disability arising from

the former to that of the latter.

a wound or injury received or sickness or disease incurred in line of duty while in the

Supervision – means overseeing or the power of an officer to see to it that their

active service.

subordinate officers perform their duties; it does not allow the superior to annul the

Section 3 – Relationship Between the DND and the VFP

acts of the subordinate.

3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans

Administrative Process – embraces matter concerning the procedure in the disposi-

associations and organizations in the Philippines) and their associates and successors

tion of both routine and contested matters, and the matter in which determinations

are hereby created a body corporate, under the control and supervision of the Sec-

are made, enforced or reviewed.

retary of National Defense, under the name, style and title of "Veterans Federation

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

of the Philippines ..."

of government or "agency" refers to any department, bureau or office of the national

The Secretary of National Defense shall be charged with the duty of supervising the

government, or any of its branches or instrumentalities, of any political subdivision,

veterans and allied program under the jurisdiction of the Department. It shall also

as well as any government owned or controlled corporation, including its subsidiar-

have the responsibility of overseeing and ensuring the judicious and effective imple-

ies, or other self-governing board or commission of the government.

mentation of veterans assistance, benefits, and utilization of VFP assets.

Government Owned and Controlled Corporation (GOCC) – refer to any agency orga-

3.2 To effectively supervise and control the corporate affairs of the Federation and

nized as a stock or non-stock corporation, vested with functions relating to public

to safeguard the interests and welfare of the veterans who are also wards of the

needs whether governmental or proprietary in nature, and owned by the govern-

State entrusted under the protection of the DND, the Secretary may personally or

ment directly or through its instrumentalities wholly or, where applicable as in the

through a designated representative, require the submission of reports, documents

case of stock corporations, to the extent of at least 50% of its capital stock.

and other papers regarding any or all of the Federation’s business transactions par-

Fund – sum of money or other resources set aside for the purpose of carrying out

ticularly those relating to the VFP functions under Section 2 of RA 2640.

specific activities or attaining certain objectives in accordance with special regula-

The Secretary or his representative may attend conferences of the supreme council

tions, restrictions or limitations and constitutes an independent, fiscal and account-

of the VFP and such other activities he may deem relevant.

ing entity.

3.3 The Secretary shall from time to time issue guidelines, directives and other or-

Government Fund – includes public monies of every sort and other resources per-

ders governing vital government activities including, but not limited to, the conduct

taining to any agency of the government.

of elections; the acquisition, management and dispositions of properties, the ac-

Veteran – any person who rendered military service in the land, sea or air forces of

counting of funds, financial interests, stocks and bonds, corporate investments, etc.

the Philippines during the revolution against Spain, the Philippine American War,

and such other transactions which may affect the interests of the veterans.

World War II, including Filipino citizens who served in Allied Forces in the Philippine

3.4 Financial transactions of the Federation shall follow the provisions of the gov-

territory and foreign nationals who served in Philippine forces; the Korean campaign,

ernment auditing code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific

purpose for which the trust was created or the funds received; fiscal responsibility

e. After Operation/Activity Reports to be submitted not later than one month after

shall, to the greatest extent, be shared by all those exercising authority over the

such operation or activity;

financial affairs, transactions, and operations of the federation; disbursements or

Section 6 – Penal Sanctions

dispositions of government funds or property shall invariably bear the approval of

As an attached agency to a regular department of the government, the VFP and all

the proper officials.

its instrumentalities, officials and personnel shall be subject to the penal provisions

Section 4 – Records of the FEDERATION

of such laws, rules and regulations applicable to the attached agencies of the gov-

As a corporate body and in accordance with appropriate laws, it shall keep and care-

ernment.

fully preserve records of all business transactions, minutes of meetings of stockhold-

In a letter dated 6 August 2002 addressed to the President of petitioner, respondent

ers/members of the board of directors reflecting all details about such activity.

DND Secretary reiterated his instructions in his earlier letter of 13 April 2002.

All such records and minutes shall be open to directors, trustees, stockholders, and

Thereafter, petitioner’s President received a letter dated 23 August 2002 from re-

other members for inspection and copies of which may be requested.

spondent Undersecretary, informing him that Department Order No. 129 dated 23

As a body corporate, it shall submit the following: annual report; proceedings of

August 2002 directed "the conduct of a Management Audit of the Veterans Federa-

council meetings; report of operations together with financial statement of its assets

tion of the Philippines."4 The letter went on to state that respondent DND Secretary

and liabilities and fund balance per year; statement of revenues and expenses per

"believes that the mandate given by said law can be meaningfully exercised if this

year; statement of cash flows per year as certified by the accountant; and other

department can better appreciate the functions, responsibilities and situation on the

documents/reports as may be necessary or required by the SND.

ground and this can be done by undertaking a thorough study of the organization."5

Section 5 – Submission of Annual and Periodic Report

Respondent Undersecretary also requested both for a briefing and for documents on

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

personnel, ongoing projects and petitioner’s financial condition. The letter ended by

SND, to wit:

stating that, after the briefing, the support staff of the Audit Committee would begin

a. Annual Report to be submitted not later than every January 31 of the following

their work to meet the one-month target within which to submit a report.

year. Said report shall consist of the following:

A letter dated 28 August 2003 informed petitioner’s President that the Management

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

Audit Group headed by the Undersecretary would be paying petitioner a visit on 30

General;

August 2002 for an update on VFP’s different affiliates and the financial statement

2. Roster of Members of the Supreme Council;

of the Federation.

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

Subsequently, the Secretary General of the VFP sent an undated letter to respondent

4. Current listing of officers and management of VFP.

DND Secretary, with notice to respondent Undersecretary for Civil Relations and Ad-

b. Report on the proceedings of each Supreme Council Meeting to be submitted not

ministration, complaining about the alleged broadness of the scope of the manage-

later than one month after the meeting;

ment audit and requesting the suspension thereof until such time that specific areas

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

of the audit shall have been agreed upon.

necessary by the President of the Federation;

The request was, however, denied by the Undersecretary in a letter dated 4 Sep-

d. Resolutions passed by the Executive Board and the Supreme Council for confir-

tember 2002 on the ground that a specific timeframe had been set for the activity.

mation to be submitted not later than one month after the approval of the resolution;

Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the

This is the established policy to prevent inordinate demands upon the Court’s time

1997 Rules of Civil Procedure, praying for the following reliefs:

and attention, which are better devoted to matters within its exclusive jurisdiction,

1. For this Court to issue a temporary restraining order and a writ of preliminary

and to prevent further over-crowding of the Court’s docket. Thus, it was proper for

prohibitory and mandatory injunction to enjoin respondent Secretary and all those

petitioner to institute the special civil action for certiorari with the Court of Appeals

acting under his discretion and authority from: (a) implementing DND Department

assailing the RTC order denying his motion to dismiss based on lack of jurisdiction.

Circular No. 04; and (b) continuing with the ongoing management audit of peti-

The petition itself, in this case, does not specifically and sufficiently set forth the

tioner’s books of account;

special and important reasons why the Court should give due course to this petition

2. After hearing the issues on notice –

in the first instance, hereby failing to fulfill the conditions set forth in Commissioner

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

of Internal Revenue v. Leal.10 While we reiterate the policies set forth in Leal and

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

allied cases and continue to abhor the propensity of a number of litigants to disre-

one.6

into a permanent

gard the principle of hierarchy of courts in our judicial system, we, however, resolve

GIVING DUE COURSE TO THE PETITION

to take judicial notice of the fact that the persons who stand to lose in a possible

Petitioner asserts that, although cases which question the constitutionality or validity

protracted litigation in this case are war veterans, many of whom have precious little

of administrative issuances are ordinarily filed with the lower courts, the urgency

time left to enjoy the benefits that can be conferred by petitioner corporation. This

and substantive importance of the question on hand and the public interest at-

bickering for the power over petitioner corporation, an entity created to represent

tendant to the subject matter of the petition justify its being filed with this Court

and defend the interests of Filipino veterans, should be resolved as soon as possible

directly as an original

action.7

in order for it to once and for all direct its resources to its rightful beneficiaries all

It is settled that the Regional Trial Court and the Court of Appeals also exercise

over the country. All these said, we hereby resolve to give due course to this petition.

original jurisdiction over petitions for certiorari and prohibition. As we have held in

ISSUES

numerous occasions, however, such concurrence of original jurisdiction does not

Petitioner mainly alleges that the rules and guidelines laid down in the assailed De-

mean that the party seeking extraordinary writs has the absolute freedom to file his

partment Circular No. 04 expanded the scope of "control and supervision" beyond

petition in the court of his choice.8 Thus, in Commissioner of Internal Revenue v.

what has been laid down in Rep. Act No. 2640.11 Petitioner further submits the fol-

Leal,9 we held that:

lowing issues to this Court:

Such concurrence of original jurisdiction among the Regional Trial Court, the Court

1. Was the challenged department circular passed in the valid exercise of the re-

of Appeals and this Court, however, does not mean that the party seeking any of

spondent Secretary’s "control and supervision"?

the extraordinary writs has the absolute freedom to file his petition in the court of

2. Could the challenged department circular validly lay standards classifying the VFP,

his choice. The hierarchy of courts in our judicial system determines the appropriate

an essentially civilian organization, within the ambit of statutes only applying to gov-

forum for these petitions. Thus, petitions for the issuance of the said writs against

ernment entities?

the first level (inferior) courts must be filed with the Regional Trial Court and those

3. Does the department circular, which grants respondent direct management con-

against the latter, with the Court of Appeals. A direct invocation of this Court’s orig-

trol on the VFP, unduly encroach on the prerogatives of VFP’s governing body?

inal jurisdiction to issue these writs should be allowed only where there are special

At the heart of all these issues and all of petitioner’s prayers and assertions in this

and important reasons therefor, specifically and sufficiently set forth in the petition.

case is petitioner’s claim that it is a private non-government corporation.

CENTRAL ISSUE:

Section 4. The National Assembly shall not, except by general law, provide for the

IS THE VFP A PRIVATE CORPORATION?

formation, organization, or regulation of private corporations, unless such corpora-

Petitioner claims that it is not a public nor a governmental entity but a private or-

tions are owned or controlled by the government or any subdivision or instrumen-

ganization, and advances this claim to prove that the issuance of DND Department

tality thereof.16

Circular No. 04 is an invalid exercise of respondent Secretary’s control and supervi-

Sec. 16. The Congress shall not, except by general law, provide for the formation,

sion.12

organization, or regulation of private corporations. Government-owned and con-

This Court has defined the power of control as "the power of an officer to alter or

trolled corporations may be created or established by special charters in the interest

modify or nullify or set aside what a subordinate has done in the performance of his

of the common good and subject to the test of economic viability.17

duties and to substitute the judgment of the former to that of the latter."13 The

From the foregoing, it is crystal clear that our constitutions explicitly prohibit the

power of supervision, on the other hand, means "overseeing, or the power or au-

regulation by special laws of private corporations, with the exception of government-

thority of an officer to see that subordinate officers perform their duties. If the latter

owned or controlled corporations (GOCCs). Hence, it would be impermissible for the

fail or neglect to fulfill them, the former may take such action or step as prescribed

law to grant control of the VFP to a public official if it were neither a public corpora-

by law to make them perform their

duties."14

These definitions are synonymous with

tion, an unincorporated governmental entity, nor a GOCC.18 Said constitutional pro-

the definitions in the assailed Department Circular No. 04, while the other provisions

visions can even be read to prohibit the creation itself of the VFP if it were neither

of the assailed department circular are mere consequences of control and supervi-

of the three mentioned above, but we cannot go into that in this case since there is

sion as defined.

no challenge to the creation of the VFP in the petition as to permit this Court from

Thus, in order for petitioner’s premise to be able to support its conclusion, petitioners

considering its nullity.

should be deemed to imply either of the following: (1) that it is unconstitutional/im-

Petitioner vigorously argues that the VFP is a private non-government organization,

permissible for the law (Rep. Act No. 2640) to grant control and/or supervision to

pressing on the following contentions:

the Secretary of National Defense over a private organization, or (2) that the control

1. The VFP does not possess the elements which would qualify it as a public office,

and/or supervision that can be granted to the Secretary of National Defense over a

particularly the possession/delegation of a portion of sovereign power of government

private organization is limited, and is not as strong as they are defined above.

to be exercised for the benefit of the public;

The following provision of the 1935 Constitution, the organic act controlling at the

2. VFP funds are not public funds because –

time of the creation of the VFP in 1960, is relevant:

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

Section 7. The Congress shall not, except by general law, provide for the formation,

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

organization, or regulation of private corporations, unless such corporations are

b) VFP funds come from membership dues;

owned and controlled by the Government or any subdivision or instrumentality

c) The lease rentals raised from the use of government lands reserved for the VFP

thereof.15

are private in character and do not belong to the government. Said rentals are fruits

On the other hand, its counterparts in the 1973 and 1987 constitutions are the fol-

of VFP’s labor and efforts in managing and administering the lands for VFP purposes

lowing:

and objectives. A close analogy would be any Filipino citizen settling on government land and who tills the land for his livelihood and sustenance. The fruits of his labor belong to him and not to the owner of the land. Such fruits are not public funds.

3. Although the juridical personality of the VFP emanates from a statutory charter,

(5) In Ang Bagong Bayani – OFW Labor Party v. COMELEC,21 this Court held in a

the VFP retains its essential character as a private, civilian federation of veterans

minute resolution that the "VFP [Veterans Federation Party] is an adjunct of the

voluntarily formed by the veterans themselves to attain a unity of effort, purpose

government, as it is merely an incarnation of the Veterans Federation of the Philip-

and objectives, e.g. –

pines.

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

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

military service;

1. Petitioner claims that the VFP does not possess the elements which would qualify

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

it as a public office, particularly the possession/delegation of a portion of sovereign

c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the

power of government to be exercised for the benefit of the public;

GSIS Law, but by the Labor Code and the SSS Law;

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

d. The VFP has its own Constitution and By-Laws and is governed by a Supreme

it is "the right, authority and duty, created and conferred by law, by which, for a

Council who are elected from and by the members themselves;

given period, either fixed by law or enduring at the pleasure of the creating power,

4. The Administrative Code of 1987 does not provide that the VFP is an attached

an individual is invested with some portion of the sovereign functions of the govern-

agency, nor does it provide that it is an entity under the control and supervision of

ment, to be exercised by him for the benefit of the public."

the DND in the context of the provisions of said code.

In the same case, we went on to adopt Mechem’s view that the delegation to the

5. The DBM declared that the VFP is a non-government organization and issued a

individual of some of the sovereign functions of government is "[t]he most important

certificate that the VFP has not been a direct recipient of any funds released by the

characteristic" in determining whether a position is a public office or not.23 Such

DBM.

portion of the sovereignty of the country, either legislative, executive or judicial,

These arguments of petitioner notwithstanding, we are constrained to rule that pe-

must attach to the office for the time being, to be exercised for the public benefit.

titioner is in fact a public corporation. Before responding to petitioner’s allegations

Unless the powers conferred are of this nature, the individual is not a public officer.

one by one, here are the more evident reasons why the VFP is a public corporation:

The most important characteristic which distinguishes an office from an employment

(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known

or contract is that the creation and conferring of an office involves a delegation to

as the Veterans Federation of the Philippines, Defining its Powers, and for Other

the individual of some of the sovereign functions of government, to be exercised by

Purposes."

him for the benefit of the public; – that some portion of the sovereignty of the

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

Defense.19

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

(3) The VFP is required to submit annual reports of its proceedings for the past year,

individual is not a public officer.24 The issue, therefore, is whether the VFA’s officers

including a full, complete and itemized report of receipts and expenditures of what-

have been delegated some portion of the sovereignty of the country, to be exercised

ever kind, to the President of the Philippines or to the Secretary of National De-

for the public benefit.

fense.20

In several cases, we have dealt with the issue of whether certain specific activities

(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as

can be classified as sovereign functions. These cases, which deal with activities not

among the government-owned and controlled corporations that will not be privat-

immediately apparent to be sovereign functions, upheld the public sovereign nature

ized.

of operations needed either to promote social justice25 or to stimulate patriotic sen-

In the case at bar, the functions of petitioner corporation enshrined in Section 4 of

timents and love of country.26

Rep. Act No. 264031 should most certainly fall within the category of sovereign func-

As regards the promotion of social justice as a sovereign function, we held in Agri-

tions. The protection of the interests of war veterans is not only meant to promote

cultural Credit and Cooperative Financing Administration (ACCFA) v. Confederation

social justice, but is also intended to reward patriotism. All of the functions in Section

of Unions in Government Corporations and Offices

that the compelling

4 concern the well-being of war veterans, our countrymen who risked their lives and

urgency with which the Constitution speaks of social justice does not leave any doubt

lost their limbs in fighting for and defending our nation. It would be injustice of

that land reform is not an optional but a compulsory function of sovereignty. The

catastrophic proportions to say that it is beyond sovereignty’s power to reward the

same reason was used in our declaration that socialized housing is likewise a sover-

people who defended her.

eign

function.28

(CUGCO),27

Highly significant here is the observation of former Chief Justice

Like the holding of the National Centennial Celebrations, the functions of the VFP

Querube Makalintal:

are executive functions, designed to implement not just the provisions of Rep. Act

The growing complexities of modern society, however, have rendered this traditional

No. 2640, but also, and more importantly, the Constitutional mandate for the State

classification of the functions of government [into constituent and ministrant func-

to provide immediate and adequate care, benefits and other forms of assistance to

tions] quite unrealistic, not to say obsolete. The areas which used to be left to private

war veterans and veterans of military campaigns, their surviving spouses and or-

enterprise and initiative and which the government was called upon to enter option-

phans.32

ally, and only "because it was better equipped to administer for the public welfare

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

than is any private individual or group of individuals," continue to lose their well-

Petitioner claims that its funds are not public funds because no budgetary appropri-

defined boundaries and to be absorbed within activities that the government must

ations or government funds have been released to the VFP directly or indirectly from

undertake in its sovereign capacity if it is to meet the increasing social challenges of

the DBM, and because VFP funds come from membership dues and lease rentals

the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly towards

earned from administering government lands reserved for the VFP.

a greater socialization of economic forces. Here, of course, this development was

The fact that no budgetary appropriations have been released to the VFP does not

envisioned, indeed adopted as a national policy, by the Constitution itself in its dec-

prove that it is a private corporation. The DBM indeed did not see it fit to propose

laration of principle concerning the promotion of social justice.29 (Emphasis sup-

budgetary appropriations to the VFP, having itself believed that the VFP is a private

plied.)

corporation.33 If the DBM, however, is mistaken as to its conclusion regarding the

It was, on the other hand, the fact that the National Centennial Celebrations was

nature of VFP’s incorporation, its previous assertions will not prevent future budget-

calculated to arouse and stimulate patriotic sentiments and love of country that it

ary appropriations to the VFP. The erroneous application of the law by public officers

was considered as a sovereign function in Laurel v. Desierto.30 In Laurel, the Court

does not bar a subsequent correct application of the law.34

then took its cue from a similar case in the United States involving a Fourth of July

Nevertheless, funds in the hands of the VFP from whatever source are public funds,

fireworks display. The holding of the Centennial Celebrations was held to be an ex-

and can be used only for public purposes. This is mandated by the following provi-

ecutive function, as it was intended to enforce Article XIV of the Constitution which

sions of Rep. Act No. 2640:

provides for the conservation, promotion and popularization of the nation’s historical

(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit

and cultural heritage and resources, and artistic relations.

of the Veterans of the Philippines;"

(2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of

recognizes the public character of the funds as shown in the enumerated provisions

the Supreme Council shall be subject to the approval of the Secretary of National

above.

Defense." Hence, all activities of the VFP to which the Supreme Council can apply

We also observed in the same COCOFED case that "(e)ven if the money is allocated

its funds are subject to the approval of the Secretary of National Defense;

for a special purpose and raised by special means, it is still public in character."37 In

(3) Section 4 provides that "the Federation shall exist solely for the purposes of a

the case at bar, some of the funds were raised by even more special means, as the

benevolent character, and not for the pecuniary benefit of its members;"1avvphil.net

contributions from affiliate organizations of the VFP can hardly be regarded as en-

(4) Section 6 provides that all funds of the VFP in excess of operating expenses are

forced contributions as to be considered taxes. They are more in the nature of do-

"reserved for disbursement, as the Supreme Council may authorize, for the purposes

nations which have always been recognized as a source of public funding. Affiliate

stated in Section two of this Act;"

organizations of the VFP cannot complain of their contributions becoming public

(5) Section 10 provides that "(a)ny donation or contribution which from time to time

funds upon the receipt by the VFP, since they are presumed aware of the provisions

may be made to the Federation by the Government of the Philippines or any of its

of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP

subdivisions, branches, offices, agencies or instrumentalities shall be expended by

funds can be used, but also provides for the regulation of such funds by the national

the Supreme Council only for the purposes mentioned in this Act."; and finally,

government through the Secretary of National Defense. There is nothing wrong,

(6) Section 12 requires the submission of annual reports of VFP proceedings for the

whether legally or morally, from raising revenues through non-traditional methods.

past year, including a full, complete and itemized report of receipts and expenditures

As remarked by Justice Florentino Feliciano in his concurring opinion in Kilosbayan,

of whatever kind, to the President of the Philippines or to the Secretary of National

Incorporated v. Guingona, Jr.38 where he explained that the funds raised by the On-

Defense.

line Lottery System were also public in nature, thus:

It is important to note here that the membership dues collected from the individual

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

members of VFP’s affiliate organizations do not become public funds while they are

methods such as PAGCOR operations and privatization measures, the lesser will be

still funds of the affiliate organizations. A close reading of Section 135 of Rep. Act No.

the pressure upon the traditional sources of public revenues, i.e., the pocket books

2640 reveals that what has been created as a body corporate is not the individual

of individual taxpayers and importers.

membership of the affiliate organizations, but merely the aggregation of the heads

Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto39

of the affiliate organizations. Thus, only the money remitted by the affiliate organi-

which was cited by Respondents. Petitioner claims that among the reasons National

zations to the VFP partake in the public nature of the VFP funds.

Centennial Commission Chair Salvador Laurel was considered a public officer was

In Republic v.

COCOFED,36

we held that the Coconut Levy Funds are public funds

the fact that his compensation was derived from public funds. Having ruled that VFP

because, inter alia, (1) they were meant to be for the benefit of the coconut industry,

funds from whatever source are public funds, we can safely conclude that the Su-

one of the major industries supporting the national economy, and its farmers; and

preme Council’s compensation, taken as they are from VFP funds under the term

(2) the very laws governing coconut levies recognize their public character. The

"operating expenses" in Section 6 of Rep. Act No. 2640, are derived from public

same is true with regard to the VFP funds. No less public is the use for the VFP

funds. The particular nomenclature of the compensation taken from VFP funds is not

funds, as such use is limited to the purposes of the VFP which we have ruled to be

even of relevance here. As we said in Laurel concerning compensation as an element

sovereign functions. Likewise, the law governing VFP funds (Rep. Act No. 2640)

of public office:

Under particular circumstances, "compensation" has been held to include allowance

not be said to have repealed nor enormously modified Rep. Act No. 2640 by impli-

for personal expenses, commissions, expenses, fees, an honorarium, mileage or

cation, as such repeal or enormous modification by implication is not favored in

traveling expenses, payments for services, restitution or a balancing of accounts,

statutory construction.46

salary, and

wages.40

5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government

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

organization in its certification that the VFP "has not been a direct recipient of any

Petitioner claims that the Secretary of National Defense "historically did not indulge

funds released by the DBM."

in the direct or ‘micromanagement’ of the VFP precisely because it is essentially a

Respondents claim that the supposed declaration of the DBM that petitioner is a

civilian organization where membership is voluntary."41 This reliance of petitioner on

non-government organization is not persuasive, since DBM is not a quasi-judicial

what has "historically" been done is erroneous, since laws are not repealed by dis-

agency. They aver that what we have said of the Bureau of Local Government Fi-

use, custom, or practice to the contrary.42 Furthermore, as earlier stated, the erro-

nance (BLGF) in Philippine Long Distance Telephone Company (PLDT) v. City of Da-

neous application of the law by public officers does not bar a subsequent correct

vao47 can be applied to DBM:

application of the

law.43

In any case, it is contended, the ruling of the Bureau of Local Government Finance

Neither is the civilian nature of VFP relevant in this case. The Constitution does not

(BLGF) that petitioner’s exemption from local taxes has been restored is a contem-

contain any prohibition, express or implied, against the grant of control and/or su-

poraneous construction of Section 23 [of R.A. No. 7925 and, as such, is entitled to

pervision to the Secretary of National Defense over a civilian organization. The Office

great weight.

of the Secretary of National Defense is itself a civilian office, its occupant being an

The ruling of the BLGF has been considered in this case. But unlike the Court of Tax

alter ego of the civilian Commander-in-Chief. This set-up is the manifestation of the

Appeals, which is a special court created for the purpose of reviewing tax cases, the

constitutional principle that civilian authority is, at all times, supreme over the mili-

BLGF was created merely to provide consultative services and technical assistance

tary.44

There being no such constitutional prohibition, the creation of a civilian public

to local governments and the general public on local taxation and other related mat-

organization by Rep. Act No. 2640 is not rendered invalid by its being placed under

ters. Thus, the rule that the "Court will not set aside conclusions rendered by the

the control and supervision of the Secretary of National Defense.

CTA, which is, by the very nature of its function, dedicated exclusively to the study

Petitioner’s stand that the VFP is a private corporation because membership thereto

and consideration of tax problems and has necessarily developed an expertise on

is voluntary is likewise erroneous. As stated above, the membership of the VFP is

the subject, unless there has been an abuse or improvident exercise of authority"

not the individual membership of the affiliate organizations, but merely the aggre-

cannot apply in the case of the BLGF.

gation of the heads of such affiliate organizations. These heads forming the VFP

On this score, though, we disagree with respondents and hold that the DBM’s ap-

then elect the Supreme Council and the other officers,45 of this public corporation.

praisal is considered persuasive. Respondents misread the PLDT case in asserting

4. Petitioner claims that the Administrative Code of 1987 does not provide that the

that only quasi-judicial agencies’ determination can be considered persuasive. What

VFP is an attached agency, and nor does it provide that it is an entity under the

the PLDT case points out is that, for an administrative agency’s opinion to be per-

control and supervision of the DND in the context of the provisions of said code.

suasive, the administrative agency involved (whether it has quasi-judicial powers or

The Administrative Code, by giving definitions of the various entities covered by it,

not) must be an expert in the field they are giving their opinion on.

acknowledges that its enumeration is not exclusive. The Administrative Code could

The DBM is indeed an expert on determining what the various government agencies

assailed circular "pre-empts VFP’s original self-governance and autonomy (in) rep-

and corporations are. This determination is necessary for the DBM to fulfill its man-

resenting veterans organizations, and substitutes government discretion and deci-

date:

sions to that of the veterans’ own determination."51 Petitioner says that the circular’s

Sec. 2. Mandate. - The Department shall be responsible for the formulation and

provisions practically render the Supreme Council inutile, despite its being the stat-

implementation of the National Budget with the goal of attaining our national socio-

utory governing body of the VFP.52

economic plans and objectives.

As previously mentioned, this Court has defined the power of control as "the power

The Department shall be responsible for the efficient and sound utilization of gov-

of an officer to alter or modify or nullify or set aside what a subordinate has done in

ernment funds and revenues to effectively achieve our country's development ob-

the performance of his duties and to substitute the judgment of the former to that

jectives.48

of the latter."53 The power of supervision, on the other hand, means "overseeing, or

The persuasiveness of the DBM opinion has, however, been overcome by all the

the power or authority of an officer to see that subordinate officers perform their

previous explanations we have laid so far. It has also been eclipsed by another sim-

duties."54 Under the Administrative Code of 1987:55

ilarly persuasive opinion, that of the Department of National Defense embodied in

Supervision and control shall include the authority to act directly whenever a specific

Department Circular No. 04. The DND is clearly more of an expert with respect to

function is entrusted by law or regulation to a subordinate; direct the performance

the determination of the entities under it, and its Administrative Rules and Regula-

of duty; restrain the commission of acts; review, approve, reverse or modify acts

tions are entitled to great respect and have in their favor the presumption of legal-

and decisions of subordinate officials or units; determine priorities in the execution

ity.49

of plans and programs; and prescribe standards, guidelines, plans and programs. x

The DBM opinion furthermore suffers from its lack of explanation and justification in

xx

the "certification of non-receipt" where said opinion was given. The DBM has not

The definition of the power of control and supervision under Section 2 of the assailed

furnished, in said certification or elsewhere, an explanation for its opinion that VFP

Department Circular are synonymous with the foregoing definitions. Consequently,

is a non-government organization.

and considering that petitioner is a public corporation, the provisions of the assailed

THE FATE OF DEPARTMENT CIRCULAR NO. 04

Department Circular No. 04 did not supplant nor modify the provisions of Republic

Our ruling that petitioner is a public corporation is determinative of whether or not

Act No. 2640, thus not violating the settled rule that "all such (administrative) issu-

we should grant petitioner’s prayer to declare Department Circular No. 04 void.

ances must not override, but must remain consistent and in harmony with the law

Petitioner assails Department Circular No. 04 on the ground that it expanded the

they seek to apply or implement. Administrative rules and regulations are intended

scope of control and supervision beyond what has been laid down in Rep. Act No.

to carry out, neither to supplant nor to modify, the law."56

2640. Petitioner alleges that "(t)he equation of the meaning of `control’ and `su-

Section 3.2 of the assailed department circular, which authorizes the Secretary of

pervision’ of the Administrative Code of 1987 as the same `control and supervision’

National Defense to "x x x personally or through a designated representative, require

under Rep. Act No. 2640, takes out the context of the original legislative intent from

the submission of reports, documents and other papers regarding any or all of the

the peculiar surrounding circumstances and conditions that brought about the crea-

Federation’s business functions, x x x."

tion of the VFP."50 Petitioner claims that the VFP "was intended as a self-governing

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

autonomous body with a Supreme Council as governing authority," and that the

x x x [F]rom time to time issue guidelines, directives and other orders governing vital government activities including, but not limited to, the conduct of elections, the

acquisition, management and dispositions of properties, the accounting of funds,

Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in

financial interests, stocks and bonds, corporate investments, etc. and such other

nature. They add nothing to the law. They do not affect the substantial rights of any

transactions which may affect the interests of the veterans.

person, whether party to the case at bar or not. In Sections 2 and 3, control and

are merely consequences of both the power of control and supervision granted by

supervision are defined, mentioning actions that can be performed as consequences

Rep. Act No. 2640. The power to alter or modify or nullify or set aside what a sub-

of such control and supervision, but without specifying the particular actions that

ordinate has done in the performance of his duties, or to see to it that subordinate

shall be rendered to control and supervise the VFP. Section 6, in the same vein,

officers perform their duties in accordance with law, necessarily requires the ability

merely state what the drafters of the circular perceived to be consequences of being

of the superior officer to monitor, as closely as it desires, the acts of the subordinate.

an attached agency to a regular department of the government, enumerating sanc-

The same is true with respect to Sections 4 and 5 of the assailed Department Circular

tions and remedies provided by law that may be availed of whenever desired.

No. 04, which requires the preservation of the records of the Federation and the

Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department

submission to the Secretary of National Defense of annual and periodic reports.

Circular, which provides that –

Petitioner likewise claims that the assailed DND Department Circular No. 04 was

3.4 Financial transactions of the Federation shall follow the provisions of the gov-

never published, and hence

void.57

Respondents deny such

non-publication.58

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

Tuvera:59

ernment auditing code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific purpose for which the trust was created or the funds received; fiscal responsibility

x x x Administrative rules and regulations must also be published if their purpose is

shall, to the greatest extent, be shared by all those exercising authority over the

to enforce or implement existing law pursuant also to a valid delegation.

financial affairs, transactions, and operations of the federation; disbursements or

Interpretative regulations and those merely internal in nature, that is, regulating

dispositions of government funds or property shall invariably bear the approval of

only the personnel of the administrative agency and not the public, need not be

the proper officials.

published. Neither is publication required of the so-called letters of instructions is-

Since we have also previously determined that VFP funds are public funds, there is

sued by administrative superiors concerning the rules on guidelines to be followed

likewise no reason to declare this provision invalid. Section 3.4 is correct in requiring

by their subordinates in the performance of their duties.

the VFP funds to be used for public purposes, but only insofar the term "public

Even assuming that the assailed circular was not published, its validity is not affected

purposes" is construed to mean "public purposes enumerated in Rep. Act No. 2640."

by such non-publication for the reason that its provisions fall under two of the ex-

Having in their possession public funds, the officers of the VFP, especially its fiscal

ceptions enumerated in Tañada.

officers, must indeed share in the fiscal responsibility to the greatest extent.

Department Circular No. 04 is an internal regulation. As we have ruled, they are

As to petitioner’s allegation that VFP was intended as a self-governing autonomous

meant to regulate a public corporation under the control of DND, and not the public

body with a Supreme Council as governing authority, we find that the provisions of

in general. As likewise discussed above, what has been created as a body corporate

Rep. Act No. 2640 concerning the control and supervision of the Secretary of Na-

by Rep. Act No. 2640 is not the individual membership of the affiliate organizations

tional Defense clearly withholds from the VFP complete autonomy. To say, however,

of the VFP, but merely the aggregation of the heads of the affiliate organizations.

that such provisions render the VFP inutile is an exaggeration. An office is not ren-

Consequently, the individual members of the affiliate organizations, who are not

dered inutile by the fact that it is placed under the control of a higher office. These

public officers, are beyond the regulation of the circular.

subordinate offices, such as the executive offices under the control of the President,

exercise discretion at the first instance. While their acts can be altered or even set

WATER DISTRICT, BISLIG WATER DISTRICT, and MECAUAYAN WATER

aside by the superior, these acts are effective and are deemed the acts of the supe-

DISTRICT, petitioners,

rior until they are modified. Surely, we cannot say that the offices of all the Depart-

vs.

ment Secretaries are worthless positions.

CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT, respondents.

In sum, the assailed DND Department Circular No. 04 does not supplant nor modify

Rodolfo

and is, on the contrary, perfectly in consonance with Rep. Act No. 2640. Petitioner

Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for CSC.

S.

De

Jesus

for

petitioners.

VFP is a public corporation. As such, it can be placed under the control and supervision of the Secretary of National Defense, who consequently has the power to con-

MEDIALDEA, J.:p

duct an extensive management audit of petitioner corporation.

Whether or not the Local Water Districts formed and created pursuant to the provi-

WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the

sions of Presidential Decree No. 198, as amended, are government-owned or con-

Department of National Defense Department Circular No. 04 is AFFIRMED.

trolled corporations with original charter falling under the Civil Service Law and/or

SO ORDERED.

covered by the visitorial power of the Commission on Audit is the issue which the petitioners entreat this Court, en banc, to shed light on. Petitioners are among the more than five hundred (500) water districts existing throughout the country formed pursuant to the provisions of Presidential Decree No. 198, as amended by Presidential Decrees Nos. 768 and 1479, otherwise known as the "Provincial Water Utilities Act of 1973." Presidential Decree No. 198 was issued by the then President Ferdinand E. Marcos by virtue of his legislative power under Proclamation No. 1081. It authorized the different local legislative bodies to form and create their respective water districts

EN BANC

through a resolution they will pass subject to the guidelines, rules and regulations therein laid down. The decree further created and formed the "Local Water Utilities

G.R. No. 95237-38 September 13, 1991

Administration" (LWUA), a national agency attached to the National Economic and

DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER

Development Authority (NEDA), and granted with regulatory power necessary to

DISTRICT, METRO CEBU WATER DISTRICT, ZAMBOANGA CITY WATER

optimize public service from water utilities operations.

DISTRICT, LEYTE METRO WATER DISTRICT, BUTUAN CITY WATER

The respondents, on the other hand, are the Civil Service Commission (CSC) and the

DISTRICT, CAMARINES NORTE WATER DISTRICT, LAGUNA WATER

Commission on Audit (COA), both government agencies and represented in this case

DISTRICT, DUMAGUETE CITY WATER DISTRICT, LA UNION WATER

by the Solicitor General.

DISTRICT, BAYBAY WATER DISTRICT, METRO LINGAYEN WATER

On April 17, 1989, this Court ruled in the case of Tanjay Water District v. Gabaton,

DISTRICT, URDANETA WATER DISTRICT, COTABATO CITY WATER

et al. (G.R. No. 63742, 172 SCRA 253):

DISTRICT, MARAWI WATER DISTRICT, TAGUM WATER DISTRICT, DIGOS

Significantly, Article IX (B), Section 2(1) of the 1987 Constitution provides that the Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of

the government, including government-owned and controlled corporations with orig-

regards its conflicting decisions in the cases of Tanjay Water District v. Gabaton and

inal charters. Inasmuch as PD No. 198, as amended, is the original charter of the

Metro Iloilo Water District v. National Labor Relations Commission. (p. 26, Rollo)

petitioner, Tanjay Water District, and respondent Tarlac Water District and all water

In the meanwhile, there exists a divergence of opinions between COA on one hand,

districts in the country, they come under the coverage of the Civil Service Law, rules

and the (LWUA), on the other hand, with respect to the authority of COA to audit

and regulations. (Sec. 35, Art. VIII and Sec. 37, Art. IX of PD No. 807).

the different water districts.

As an offshoot of the immediately cited ruling, the CSC. issued Resolution No. 90-

COA opined that the audit of the water districts is simply an act of discharging the

575, the dispositive portion of which reads:

visitorial power vested in them by law (letter of COA to LWUA dated August 13,

NOW THEREFORE, in view of all the foregoing, the Commission resolved, as it hereby

1985, pp. 29-30, Rollo).

resolves to rule that Local Water Districts, being quasi-public corporations created

On the other hand, LWUA maintained that only those water districts with subsidies

by law to perform public services and supply public wants, the matter of hiring and

from the government fall within the COA's jurisdiction and only to the extent of the

firing of its officers and employees should be governed by the Civil Service Law,

amount of such subsidies, pursuant to the provision of the Government Auditing

rules and regulations. Henceforth, all appointments of personnel of the different local

Code of the Phils.

water districts in the country shall be submitted to the Commission for appropriate

It is to be observed that just like the question of whether the employees of the water

action. (Rollo. p. 22).

districts falls under the coverage of the Civil Service Law, the conflict between the

However, on May 16, 1990, in G.R. No. 85760, entitled "Metro Iloilo Water District

water districts and the COA is also dependent on the final determination of whether

v. National Labor Relations Commission, et al.," the Third Division of this Court ruled

or not water districts are government-owned or controlled corporations with original

in a minute resolution:

charter. The reason behind this is Sec. 2(1), Article IX-D of the 1987 constitution

xxx

xxx

xxx

which reads:

Considering that PD 198 is a general legislation empowering and/or authorizing gov-

Sec. 2(1) The Commission on Audit shall have the power, authority, and duty to

ernment agencies and entities to create water districts, said PD 198 cannot be con-

examine, audit, and settle all accounts pertaining to the revenue and receipts of,

sidered as the charter itself creating the Water District. Public respondent NLRC did

and expenditures or uses of funds and property, owned or held in trust by, or per-

not commit any grave abuse of discretion in holding that the operative act, that

taining to the Government, or any of its subdivisions, agencies or instrumentalities,

created the Metro Iloilo Water District was the resolution of the Sangguniang Pan-

including government-owned or controlled corporations with original charters, and

glunsod of Iloilo City. Hence, the employees of Water Districts are not covered by

on a post audit basis. (emphasis supplied)

Civil Service Laws as the latter do (sic) not have original charters.

Petitioners' main argument is that they are private corporations without original

In adherence to the just cited ruling, the CSC suspended the implementation of

charter, hence they are outside the jurisdiction of respondents CSC and COA. Reli-

Resolution No. 90-575 by issuing Resolution No. 90-770 which reads:

ance is made on the Metro Iloilo case which declared petitioners as quasi-public

xxx

corporations created by virtue of PD 198, a general legislation which cannot be con-

xxx

xxx

NOW, THEREFORE, in view of all the foregoing, the Commission resolved to rule, as

sidered as the charter itself creating the water districts. Holding on to this ruling,

it hereby rules, that the implementation of CSC. Resolution No. 575 dated June 27,

petitioners contend that they are private corporations which are only regarded as

1990 be deferred in the meantime pending clarification from the Supreme Court are

quasi-public or semi-public because they serve public interest and convenience and

that since PD 198 is a general legislation, the operative act which created a water

Section 26 of the same decree PD 198 is hereby amended to read as Section 25 as

district is not the said decree but the resolution of the sanggunian concerned.

follows:

After a fair consideration of the parties' arguments coupled with a careful study of

Section 25. Authorization. — The district may exercise all the powers which are ex-

the applicable laws as well as the constitutional provisions involved, We rule against

pressly granted by this Title or which are necessarily implied from or incidental to

the petitioners and reiterate Our ruling in Tanjay case declaring water districts gov-

the powers and purposes herein stated. For the purpose of carrying out the objec-

ernment-owned or controlled corporations with original charter.

tives of this Act, a district is hereby granted the power of eminent domain, the ex-

As early as Baguio Water District v. Trajano, et al., (G.R. No. 65428, February 20,

ercise thereof shall, however, be subject to review by the Administration.

1984, 127 SCRA 730), We already ruled that a water district is a corporation created

Thus, Section 25 of PD 198 exempting the employees of water districts from the

pursuant to a special law — P.D. No. 198, as amended, and as such its officers and

application of the Civil Service Law was removed from the statute books:

employees are covered by the Civil Service Law.

xxx

In another case (Hagonoy Water District v. NLRC, G.R. No. 81490, August 31, 1988,

We grant the petition for the following reasons:

165 SCRA 272), We ruled once again that local water districts are quasi-public cor-

1. Section 25 of PD No. 198 was repealed by Section 3 of PD No. 1479; Section 26

porations whose employees belong to the Civil Service. The Court's pronoucement

of PD No. 198 was amended ro read as Sec. 25 by Sec. 4 of PD No. 1479. The

in this case, as extensively quoted in the Tanjay case, supra, partly reads:

amendatory decree took effect on June 11, 1978.

"The only question here is whether or not local water districts are governmkent

xxx

owned or controlled corporations whose employees are subject to the provisions of

3. The BWD is a corporation created pursuant to a special law — PD No. 198, as

the Civil Service Law. The Labor Arbiter asserted jurisdiction over the alleged illegal

amended. As such its officers and employees are part of the Civil Service (Sec. 1,

dismissal of private respondent Villanueva by relying on Section 25 of Presidential

Art. XII-B, [1973] Constitution; PD No. 868).

decree No. 198, known as the Provincial Water Utilities Act of 1973" which went onto

Ascertained from a consideration of the whole statute, PD 198 is a special law appli-

effect in 25 May 1973, and which provides as follows:

cable only to the different water districts created pursuant thereto. In all its essential

Exemption from Civil Service. — The district and its employees, being engaged in a

terms, it is obvious that it pertains to a special purpose which is intended to meet a

proprietary function, are hereby exempt from the provisions of the Civil Service Law.

particular set of conditions and cirmcumstances. The fact that said decree generally

Collective Bargaining shall be available only to personnel below supervisory levels:

applies to all water districts throughout the country does not change the fact that

Provided, however, That the total of all salaries, wages emoluments, benefits or

PD 198 is a special law. Accordingly, this Court's resolution in Metro Iloilo case de-

other compensation paid to all employees in any month shall not exceed fifty percent

claring PD 198 as a general legislation is hereby abandoned.

(50%) of average net monthy revenue. Said net revenue representing income from

By "government-owned or controlled corporation with original charter," We mean

water sales and sewerage service charges, less pro-rata share of debt service and

government owned or controlled corporation created by a special law and not under

expenses for fuel or energy for pumping during the preceding fiscal year.

the Corporation Code of the Philippines. Thus, in the case of Lumanta v. NLRC (G.R.

The Labor Arbiter failed to take into accout the provisions of Presidential Decree No.

No. 82819, February 8, 1989, 170 SCRA 79, 82), We held:

1479, which went into effect on 11 June 1978, P.D. No. 1479, wiped away Section

The Court, in National Service Corporation (NASECO) v. National Labor Relations

25 of PD 198 quoted above, and Section 26 of PD 198 was renumbered as Section

Commission, G.R. No 69870, promulgated on 29 November 1988, quoting exten-

25 in the following manner:

sively from the deliberations of 1986 Constitutional Commission in respect of the

xxx

xxx

xxx

xxx

intent and meaning of the new phrase "with original character," in effect held that

It also prescribes for the numbers and qualifications of the members of the Board of

government-owned and controlled corporations with original charter refer to corpo-

Directors:

rations chartered by special law as distinguished from corporations organized under

Sec. 8. Number and Qualification. — The Board of Directors of a district shall be

our general incorporation statute — the Corporations Code. In NASECO, the com-

composed of five citizens of the Philippines who are of voting age and residents

pany involved had been organized under the general incorporation statute and was

within the district. One member shall be a representative of civic-oriented service

a sbusidiary of the National Investment Development Corporation (NIDC) which in

clubs, one member of representative of professional associations, one member a

turn was a subsidiary of the Philippine National Bank, a bank chartered by a special

representative of business, commercial or financial organizations, one member a

statute. Thus, government-owned or controlled corporations like NASECO are effec-

representative of educational institutions and one member a representative of wom-

tively, excluded from the scope of the Civil Service. (emphasis supplied)

en's organization. No public official shall serve as director. Provided, however, that

From the foregoing pronouncement, it is clear that what has been excluded from

if the district has availed of the financial assistance of the Administration, the Ad-

the coverage of the CSC are those corporations created pursuant to the Corporation

ministration may appoint any of its personnel to sit in the board of directors with all

Code. Significantly, petitioners are not created under the said code, but on the con-

the rights and privileges appertaining to a regular member for such period as the

trary, they were created pursuant to a special law and are governed primarily by its

indebtedness remains unpaid in which case the board shall be composed of six mem-

provision.

bers; (as amended by PDs Nos. 768 and 1479).

No consideration may thus be given to petitioners' contention that the operative act

the manner of their appointment and nominations;

which created the water districts are the resolutions of the respective local sanggu-

Sec. 9. Appointment. — Board members shall be appointed by the appointing au-

nians and that consequently, PD 198, as amended, cannot be considered as their

thority. Said appointments shall be made from a list of nominees, if any, submitted

charter.

pursuant to Section 10. If no nominations are submitted, the appointing authority

It is to be noted that PD 198, as amended is the source of authorization and power

shall appoint any qualified person of the category to the vacant position;

to form and maintain a district. Section 6 of said decree provides:

Sec.10. Nominations. — On or before October 1 of each even numbered year, the

Sec. 6. Formation of District. — This Act is the source of authorization and power to

secretary of the district shall contact each known organization, association, or insti-

form and maintain a district. Once formed, a district is subject to the provisions of

tution being represented by the director whose term will expire on December 31 and

this Act and not under the jurisdiction of any political subdivision, . . . .

solicit nominations from these organizations to fill the position for the ensuing term.

Moreover, it must be observed that PD 198, contains all the essential terms neces-

One nomination may be submitted in writing by each such organization to the Sec-

sary to constitute a charter creating a juridical person. For example, Section 6(a)

retary of the district on or before November 1 of such year: This list of nominees

provides for the name that will be used by a water district, thus:

shall be transmitted by the Secretary of the district to the office of the appointing

Sec. 6. . . . To form a district, the legislative body of any city, municipality or province

authority on or before November 15 of such year and he shall make his appointment

shall enact a resolution containing the following:

from the list submitted on or before December 15. In the event the appointing au-

a) The name of the local water district, which shall include the name of the city,

thority fails to make his appointments on or before December 15, selection shall be

municipality, or province, or region thereof, served by said system, followed by the

made from said list of nominees by majority vote of the seated directors of the

words "Water District."

district constituting a quorum. Initial nominations for all five seats of the board shall be solicited by the legislative body or bodies at the time of adoption of the resolution

forming the district. Thirty days thereafter, a list of nominees shall be submitted to

shag receive per diems in any given month in excess of the equivalent of the total

the provincial governor in the event the resolution forming the district is by a pro-

per diems of four meetings in any given month. No director shall receive other com-

vincial board, or the mayor of the city or municipality in the event the resolution

pensation for services to the district.

forming the adoption of the district is by the city or municipal board of councilors,

Any per diem in excess of P50.00 shall be subject to approval of the Administration

who shall select the initial directors therefrom within 15 days after receipt of such

(as amended by PD 768).

nominations;

Sec. 14. Personal Liability. — No director may be held to be personally liable for any

their terms of office:

action of the district.

Sec. 11. Term of Office. — Of the five initial directors of each newly formed district,

Noteworthy, the above quoted provisions of PD 198, as amended, are similar to

two shall be appointed for a maximum term of two years, two for a maximum term

those which are actually contained in other corporate charters. The conclusion is

of four years, and one for a maximum term of six years. Terms of office of all direc-

inescapable that the said decree is in truth and in fact the charter of the different

tors in a given district shall be such that the term of at least one director, but not

water districts for it clearly defines the latter's primary purpose and its basic organ-

more then two, shall expire on December 31 of each even-numbered year. Regular

izational set-up. In other words, PD 198, as amended, is the very law which gives a

terms of office after the initial terms shall be for six years commencing on January

water district juridical personality. While it is true that a resolution of a local sanggu-

1 of odd-numbered years. Directors may be removed for cause only, subject to re-

nian is still necessary for the final creation of a district, this Court is of the opinion

view and approval of the Administration; (as amended by PD 768).

that said resolution cannot be considered as its charter, the same being intended

the manner of filling up vacancies:

only to implement the provisions of said decree. In passing a resolution forming a

Sec. 12. Vacancies. — In the event of a vacancy in the board of directors occurring

water district, the local sanggunian is entrusted with no authority or discretion to

more than six months before expiration of any director's term, the remaining direc-

grant a charter for the creation of a private corporation. It is merely given the au-

tors shall within 30 days, serve notice to or request the secretary of the district for

thority for the formation of a water district, on a local option basis, to be exercised

nominations and within 30 days, thereafter a list of nominees shall be submitted to

under and in pursuance of PD 198.

the appointing authority for his appointment of a replacement director from the list

More than the aforequoted provisions, what is of important interest in the case at

of nominees. In the absence of such nominations, the appointing authority shall

bar is Section 3, par. (b) of the same decree which reads:

make such appointment. If within 30 days after submission to him of a list of nomi-

Sec. 3(b). Appointing authority. — The person empowered to appoint the members

nees the appointing authority fails to make an appointment, the vacancy shall be

of the Board of Directors of a local water district, depending upon the geographic

filled from such list by a majority vote of the remaining members of the Board of

coverage and population make-up of the particular district. In the event that more

Directors constituting a quorum. Vacancies occurring within the last six months of

than seventy-five percent of the total active water service connections of a local

an unexpired term shall also be filled by the Board in the above manner. The director

water districts are within the boundary of any city or municipality, the appointing

thus appointed shall serve the unexpired term only; (as amended by PD 768).

authority shall be the mayor of that city or municipality, as the case may be; other-

and the compensation and personal liability of the members of the Board of Direc-

wise, the appointing authority shall be the governor of the province within which the

tors:

district is located: Provided, That if the existing waterworks system in the city or

Sec. 13. Compensation. — Each director shall receive a per diem, to be determined by the board, for each meeting of the board actually attended by him, but no director

municipality established as a water district under this Decree is operated and managed by the province, initial appointment shall be extended by the governor of the province. Subsequent appointments shall be as specified herein. If portions of more than one province are included within the boundary of the district, and the appointing authority is to be the governors then the power to appoint shall rotate between the governors involved with the initial appointments made by the governor in whose province the greatest number of service connections exists (as amended by PD 768). The above-quoted section definitely sets to naught petitioners' contention that they are private corporations. It is clear therefrom that the power to appoint the members who will comprise the Board of Directors belongs to the local executives of the local subdivision units where such districts are located. In contrast, the members of the Board of Directors or trustees of a private corporation are elected from among the members and stockholders thereof. It would not be amiss to emphasize at this point that a private corporation is created for the private purpose, benefit, aim and end of its members or stockholders. Necessarily, said members or stockholders should be given a free hand to choose those who will compose the governing body of their corporation. But this is not the case here and this clearly indicates that petitioners are definitely not private corporations. The foregoing disquisition notwithstanding, We are, however, not unaware of the serious repercussion this may bring to the thousands of water districts' employees throughout the country who stand to be affected because they do not have the necessary civil service eligibilities. As these employees are equally protected by the constitutional guarantee to security of tenure, We find it necessary to rule for the protection of such right which cannot be impaired by a subsequent ruling of this Court. Thus, those employees who have already acquired their permanent employment status at the time of the promulgation of this decision cannot be removed by the mere reason that they lack the necessary civil service eligibilities. ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are declared "government-owned or controlled corporations with original charter" which fall under the jurisdiction of the public respondents CSC and COA. SO ORDERED.

district of Pangasinan in the congressional elections of November 12, 1957. On August 23, 1957, the parties entered into a written agreement bearing the same date, containing among other matters stated therein, a pledge that — Each aspirant shall respect the result of the aforesaid convention, i.e., no one of us shall either run as a rebel or independent candidate after losing in said convention. In the provincial convention held by the Nacionalista Party on August 31, 1957, Saura was elected and proclaimed the Party's official congressional candidate for the aforesaid district of Pangasinan. Nonetheless, Sindico, in disregard of the covenant, filed, on September 6, 1957, her certificate of candidacy for the same office with the Commission on Elections, and she openly and actively campaigned for her election. Wherefore, on October 5, 1957, plaintiff Saura commenced this suit for the recovery of damages. Upon motion of the defendant, the lower court, in its order of November 19, 1957, dismissed the complaint on the basis that the agreement sued upon is null and void, in tat (1) the subject matter of the contract, being a public office, is not within the commerce of man; and (2) the "pledge" was in curtailment of the free exercise of elective franchise and therefore against public policy. Hence, this appeal. We agree with the lower court in adjudging the contract or agreement in question a nullity. Among those that may not be the subject matter (object) of contracts are certain rights of individuals, which the law and public policy have deemed wise to EN BANC G.R. No. L-13403

exclude from the commerce of man. Among them are the political rights conferred March 23, 1960

upon citizens, including, but not limited to, once's right to vote, the right to present

RAMON E. SAURA, plaintiff-appellant,

one's candidacy to the people and to be voted to public office, provided, however,

vs.

that all the qualifications prescribed by law obtain. Such rights may not, therefore,

ESTELA P. SINDICO, defendant-appellee.

be bargained away curtailed with impunity, for they are conferred not for individual

Anacleto

Magno

for

appellant.

or private benefit or advantage but for the public good and interest.

Espeque and Jalandoni for appellee.

Constitutional and statutory provision fix the qualifications of persons who may be

REYES, J. B. L., J.:

eligible for certain elective public offices. Said requirements may neither be enlarged

Appeal on issues of law from an order of the Court of First Instance of Pangasinan

nor reduced by mere agreements between private parties. A voter possessing all the

dismissing plaintiff's complaint for damages.

qualifications required to fill an office may, by himself or through a political party or

From the records it appears that Ramon E. Saura and Estela P. Sindico were con-

group, present his candidacy without further limitations than those provided by law.

testing for nomination as the official candidate of the Nacionalista Party in the fourth

Every voter has a right to be a candidate for public office if he possesses the qualifications required to fill the office. It does not necessarily follow that he can be the

candidate of a particular political party. The statute provides when and how one may

We find it unnecessary to discuss the other points raised by the parties.

be a candidate of a political party. If he cannot fill the requirement so as to be the

Wherefore, the order of dismissal appealed from is hereby affirmed. No pronounce-

candidates of the political party of his choice, he may still be a candidate at the

ment as to costs.

general election by petition. The right of the voter to vote at the general election for whom he pleases cannot be limited. (Roberts vs. Cleveland, Secretary of State of State of New Mexico, 48 NM 226, 149 P (2d) 120, 153 A.L.R. 635, 637-638) (Emphasis supplied) In common law, certain agreements in consideration of the withdrawal of candidates for office have invariably been condemned by the courts as being against public policy, be it a withdrawal from the race for nomination or, after nomination, from the race for election. (See notes in 37 L. R. A. (N.S.) 289 and cases cited therein; 18 Am. Jur. Sec. 352, pp. 399-400) In the case at hand, plaintiff complains on account of defendant's alleged violation of the "pledge" in question by filing her own certificate o candidacy for a seat in the Congress of the Philippines and in openly and actively campaigning for her election. In the face of the preceding considerations, we certainly cannot entertain plaintiff's action, which would result in limiting the choice of the electors to only those persons selected by a small group or by party boses. The case of Pendleton vs. Pace, 9 S.W. (2nd) 437, cited by the appellant, is clearly inapplicable. The court there only sanctioned the validity of an agreement by the opposing candidates for nomination setting aside and re-submitting the nomination for another primary election on account of the protest or contest filed by the losing candidate in the first primary election. To abandon the contest proceedings, the candidates for nomination agreed to submit again their nomination to the electors in the subsequent primary. Appellant likewise cites and quotes a portion of our ruling in Monsale vs. Nico, 83 Phil., 758; 46 Off. Gaz., 210, to the effect that it is not incompetent or a candidate to withdraw or annul his certificate of candidacy. This is not in point, for while we stated there that he may do so, there being no legal prohibition against such a voluntary withdrawal, it does not follow, nor did we imply anywhere in the decision, that in case there is any agreement or consideration for such a withdrawal, said agreement or consideration should be held valid or given effect.

tion per annum of P3,493, vice Juan Mendoza, Jr., resigned. This appointment, effective September 1, 1960, was approved by the Commissioner of Civil Service on May 14, 1962, and released to the Department of Labor on May 25, 1962. In June of 1962, respondent Secretary of Labor appointed Ricardo Tiongco, one of the respondents, to the same position of Labor Conciliator II. 1 Petitioner's demand for the revocation of respondent Tionco's appointment and payment to him (Santos) of salary differentials was rejected by respondent Secretary of Labor. From the foregoing events stemmed the present petition for mandamus filed on August 20, 1962 three days before Santos actually retired from the service which was an August 23, 1962. 2 The petition prays, inter alia, that respondents be commanded to nullify the appointment of Tiongco, and to uphold as legal and existing petitioner's appointment, as Labor Conciliator II, from September 1, 1960; and that the salary differentials aforesaid be paid petitioner. Respondents seasonably answered the petition. Before the case could be tried on the merits that is, on February 14, 1963, Santos died. A motion to substitute the "Estate of Segundo Santos, deceased." represented by Rodolfo Santos, one of the heirs, was filed. This triggered a move on EN BANC

respondents' part to seek dismissal of the case.

G.R. No. L-21624

February 27, 1968

The court, on April 10, 1963, dismissed the petition without costs. Hence,

SEGUNDO SANTOS, petitioner,

this appeal on purely questions of law.

vs.

1. The threshold question is this: May the Estate of Segundo Santos, de-

SECRETARY OF LABOR, RAOUL M. INOCENTES, Commissioner of Civil Service, RICARDO TIONGCO and CASHIER, Regional Office No. 4, respondents. Castro

M.

Baltazar

for

petitioner.

ceased, be substituted in place of petitioner herein? Public office is a public trust. 3 It is personal to the incumbent thereof or appointee thereto. In this sense, it is not property which passes to his heirs. None

Office of the Solicitor General for respondents.

of the heirs may replace him in that position. It is in this context that we say that

SANCHEZ, J.:

the Estate of the deceased Segundo Santos may not press Santos' claim that he be

Segundo Santos was, for a number of years, employed as Labor Conciliator I (Regional Office No. 4) of the Department of Labor. His monthly pay was P259 per

allowed to continue holding office as Labor Conciliator II. Actio personalis moritur cum persona.

month, or P3,108 per annum. On August 24, 1960, he was extended an appointment

But jurisdiction of the court had attached before the death of Santos. That

(promotion) as Labor Conciliator II (Regional Office No. 3, Manila) with compensa-

jurisdiction continues until the termination of the suit. It is true that what is left is a money claim for salary differentials. But death will not dislodge jurisdiction on that

money claim — it subsists. Resolution of this question depends upon the right of Segundo Santos to the position of Labor Conciliator II.

It will not be in harmony with our sense of justice to return this case to the court below — at this stage — just to allow respondents to prove their defense of

We rule that the Estate of the deceased Segundo Santos may be substituted for him in the present proceedings. We do so now.1äwphï1.ñët

recall of petitioner's appointment. Respondents had a choice: To go to trial on the merits upon the issues raised

2. We go to the merits.

in their answer; or, seek to overthrow petitioner's case on legal issues. They did

Stripped of unnecessary details, the facts are: On August 24, 1960, petitioner,

elect the latter. They cannot be permitted once again to return to the lower court

a second grade eligible, was appointed Labor Conciliator II at an annual compensa-

for a trial on the merits. 5 Suitors should not normally be allowed to gamble with

tion of P3,493 effective September 1, 1960. As far as salary is concerned, no law,

court proceedings in the hope of obtaining beneficial results. It is unfair that this

rule or regulation has been violated. Because, an annual pay of P3,493 is well within

case should, on respondents' choice, be made to bounce from the lower court to

the range provided for second grade civil service eligibles.

this Court, and back to the lower court and perhaps only to be appealed once again

4

Respondents challenge the legality of petitioner's appointment as Labor Con-

to an appellate court. The ensuing delay, increased cost of litigation, and trouble

ciliator II. They say that such appointment is within the prohibition set forth in the

and anxiety and harassment to be caused to the adverse party, the wastage of the

memorandum circular of the Civil Service Commission dated February 16, 1961,

courts' time — these are reasons potent enough to support this view.

thus: "Employees should not be assigned or promoted to positions the initial rate of

At all events, petitioner's right to salary differentials and the duty to pay him

the salary allocation of which exceed the maximum allowable for their eligibility."

are both clear. Civil Service approval completed petitioner's appointment, 6 clinched

Respondents likewise aver that it was because of this circular, that the appointment

the case for him.

of petitioner as Labor Conciliator II was recalled on September 7, 1961. The circular was not violated.

3. The rest is a question of mathematical computation. Petitioner's pay as Labor Conciliator I was at the rate of P259 per month or P3,108 per annum. His

And the withdrawal of petitioner's appointment is not a proven fact. What the

increased compensation as Labor Conciliator II from September 1, 1960, to August

record clearly discloses is that the original appointment of petitioner as Labor Con-

23, 1962, the date of his retirement, is at the late of P3,493 per annum, specified in

ciliator II was not taken out of the Civil Service Commission; it was approved by the

his promotional appointment, and reiterated in the 5th indorsement of the Commis-

Commissioner of Civil Service on May 14, 1962 and released to the Secretary of

sioner of Civil Service to the Secretary of Labor dated May 22, 1962. He is entitled

Labor on May 25, 1962.

only to the pay set forth in his appointment, and no more — absent a legal adjust-

More important now is that the defense of recall has been abandoned by respondents. The case was ready for trial below. They did not go to trial. Instead,

ment thereof. There is no such adjustment here. Petitioner's salary differentials during the period covered amounts to P761.68. And this should be paid to his Estate.

they thought it advantageous to them — upon petitioner's death — to submit their

Upon the view we take of this case, we vote to reverse the order of the Court

case on their motion to dismissed solely on legal grounds, namely, that the death of

of First Instance of Manila dated April 10, 1963, and to direct the Secretary of Labor

petitioner extinguished the controversy, and that the remaining claim for damages

and the corresponding Cashier to pay the Estate of the deceased petitioner Segundo

is ancillary to mandamus and is also abated by death.

Santos the sum of P761.68.

The money claim here involved, however, descended to Santos' heirs. And, as we have earlier in this opinion stated, his Estate may prosecute that claim to its conclusion.

No costs. So ordered.

The facts of the case are as follows: On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954 — NARRA) approved the following resolution: RESOLUTION NO. 13 (Series of 1960) RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation appurtenant thereto to take effect on January 16, 1960); RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.). SECOND DIVISION

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chair-

G.R. No. L-30057 January 31, 1984

man of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the

BRUNO O. APARRI, petitioner,

following letter:

vs.

Manila, January 22, 1960

THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution

Mr. Bruno O. Aparri c/o NARRA, Manila

for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL

SIR:

B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the

You are hereby appointed as GENERAL MANAGER in the National Resettlement and

Board of Directors of the defunct National Resettlement and Rehabilita-

Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE

tion Administration (NARRA), respondents.

THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January

Enrique D. Tayag for petitioner.

16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).

Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph (2),Section 8, Republic Act No. 1160 (approved June

MAKASIAR, J.:

18, 1954), to wit:

This petition for certiorari seeks to review the decision of the then Court of Appeals

Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors shall

(now Intermediate Appellate Court under BP 129) dated September 24, 1968, af-

have the following powers and duties: ...

firming the decision of the then Court of First Instance (now Regional Trial Court),

2) To appoint and fix the term of office of General Manager ..., subject to the rec-

the dispositive portion of which is as follows:

ommendation of the Office of Economic Coordination and the approval of the Presi-

WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of

dent of the Philippines, .... The Board, by a majority vote of all members, may, for

the present petition for mandamus is hereby affirmed, without pronouncement as

cause, upon recommendation of the Office of Economic Coordination and with the

to costs (p. 50, rec.).

approval of the President of the Philippines, suspend and/or remove the General

terminable at the pleasure of the appointing power which, in this case, is the Board

Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied).

of Directors. Where, as in the case at bar, the appointing officer, that is, the Board

On March 15, 1962, the same Board of Directors approved the following resolution:

of Directors, had fixed the term of office of the incumbent Manager to end on March

RESOLUTION NO. 24 (Series of 1962)

31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the

WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the

term of his office which is one of the recognized modes of terminating official rela-

desire of the Office of the President Malacanang, Manila, to fix the term of office of

tions. Considering that the term of office of the General Manager of the NARRA is

the incumbent General Manager up to the close of office hours on March 31, 1962,

not fixed by law nor has it been fixed by the Board of Directors at the time of his

in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160;

appointment although it had the power to do so, it is obvious that the term of office

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of

of herein petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold

Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General

the said office was thereby extinguished. In other words, Bruno O. Aparri cessation

Manager of the National Resettlement and Rehabilitation Administration (NARRA) to

from office invokes no removal but merely the expiration of the term of office which

March 31, 1962 (pp. 6-7, rec., emphasis supplied).

was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri con-

Petitioner filed a petition for mandamus with preliminary injunction with the then

tinues only for so long as the term of his office has not ended (Alba vs. Hon. Jose

Court of First Instance of Manila on March 29, 1962. The petition prayed to annul

N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49, rec.,

the resolution of the NARRA Board dated March 15, 1962, to command the Board to

emphasis supplied].

allow petitioner to continue in office as General Manager until he vacates said office

The motion for reconsideration by petitioner in the then Court of Appeals was denied

in accordance with law and to sentence the private respondents jointly and severally

on January 10, 1969.

to pay the petitioner actual damages in the sum of P95,000.00, plus costs.

On January 20, 1969, the petitioner filed a petition for certiorari to review the deci-

On August 8, 1963, when the case was still pending decision in the lower court,

sion of the then Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The

Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code, took

same was initially denied for lack of merit in a resolution dated January 27, 1969 (p.

effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and transferred its

55, rec.); but on motion for reconsideration filed on February 11, 1969, the petition

functions and powers to the Land Authority. On October 21, 1963, the then Court of

was given due course (p. 66, rec.).

First Instance of Manila rendered judgment, finding "that this case has become ac-

The only legal issue sought to be reviewed is whether or not Board Resolution No.

ademic by reason of the approval of the Agricultural Land Reform Code (Republic

24 (series of 1962) was a removal or dismissal of petitioner without cause.

Act No. 3844) and thereby dismissing the instant petition without pronouncement

WE affirm. WE hold that the term of office of the petitioner expired on March 31,

as to costs" (p. 5, rec.).

1962.

On appeal to the then Court of Appeals, the appellate tribunal speaking through then

A public office is the right, authority, and duty created and conferred by law, by

Mr. Justice Antonio C. Lucero, affirmed the decision of the lower court. in dismissing

which for a given period, either fixed by law or enduring at the pleasure of the

the petition for mandamus. Pertinent provisions of the decision are as follows:

creating power, an individual is invested with some portion of the sovereign func-

xxx xxx xxx

tions of the government, to be exercise by him for the benefit of the public ([Mechem

In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the

Public Offices and Officers,] Sec. 1). The right to hold a public office under our po-

position of General Manager without fixed term and his appointment is, in essence,

litical 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

of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment

(Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in

becomes complete when the last act required of the appointing power is performed

an office, or even an absolute right to hold office. Excepting constitutional offices

(State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).

which provide for special immunity as regards salary and tenure, no one can be said

The petitioner was appointed as general manager pursuant to Resolution No. 13

to have any vested right in an office or its salary (42 Am. Jur. 881).

(series of 1960 — approved on January 15, 1960) of the Board of Directors. A careful

The National Resettlement and Rehabilitation Administration (NARRA) was created

perusal of the resolution points out the fact that the appointment is by itself incom-

under Republic Act No. 1160 (approved June 18,1954), which provides that:

plete because of the lack of approval of the President of the Philippines to such

Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION — ...

appointment. Thus, We note that Resolution No. 13 states:

there is hereby created a corporation to be known as National Resettlement and

xxx xxx xxx

Rehabilitation Administration hereafter referred to as "NARRA" to perform under the

... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the

supervision and control of the President of the Philippines, through the Office of

Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Economic Coordinator all the duties and functions of the Bureau of Lands as provided

Presumably, the Board of Directors of the NARRA expected that such appointment

for in Commonwealth Act numbered Six Hundred and Ninety-one, as amended, and

be given approval by the then President. Lacking such approval by the President as

such other duties as are hereinafter specified in this Act. It shall be headed by a

required by the law (par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was

General Manager and an Assistant Manager who shall be appointed as hereinafter

not complete. The petitioner can, at best, be classified as a de facto officer because

provided (emphasis supplied).

he assumed office "under color of a known appointment or election, void because

Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors

the officer was not eligible or because there was a want of power in the electing

of the NARRA the power "to appoint and fix the term of office of the general manager

body, or by reasons of some defect or irregularity in its exercise, such ineligibility,

... subject to the recommendation of Economic Coordination and the approval of the

want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn.

President of the Philippines" (emphasis supplied).

449, 9Am. Rep. 409).

By "appointment" is meant the act of designation by the executive officer, board or

However, such appointment was made complete upon approval of Resolution No.

body, to whom that power has been delegated, of the individual who is to exercise

24 (series of 1962-approved March 15, 1962) wherein the President submitted to

the functions of a given office (Mechem op. cit., Sec. 102). When the power of

the Board his "desire" to fix the term of office of the petitioner up to the close of

appointment is absolute, and the appointee has been determined upon, no further

office hours on March 31, 1962. The questioned resolution corrected whatever req-

consent or approval is necessary, and the formal evidence of the appointment, the

uisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution

commission, may issue at once. Where, however, the assent or confirmationof some

No. 24, approved by the respondent Board and pursuant to "the desire of the Pres-

other officer or body is required, the Commission can issue or the appointment is

ident" legally fixed the term of office of petitioner as mandated by paragraph 2,

complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal.

Section 8 of Republic Act 1160.

407). To constitute an "appointment" to office, there must be some open, unequiv-

The word "term" in a legal sense means a fixed and definite period of time which

ocal act of appointment on the part of the appointing authority empowered to make

the law describes that an officer may hold an office (Sueppel vs. City Council of Iowa

it, and it may be said that an appointment to office is made and is complete when

City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42, 54[1]). According to

the last act required of the appointing authority has been performed (Molnar vs. City

Mochem, the term of office is the period during which an office may be held. Upon

the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. The question of when this event has occurred depends upon a number of considerations, the most prominent of which, perhaps, are whether he was originally elected or appointed for a definite term or for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384). It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50 Am. Jur. p. 212). Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to hold such office. WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS. SO ORDERED

still pending in the commission, he filed on October 21, 1988 in the Regional Trial Court (RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante Cautela against Mesina (docketed as Election Protest No. B-44) with claims for damages, attorney's fees, and costs. Mesina filed an Answer with counterclaims for damages EN BANC

and attorney's fees.

G.R. Nos. 95275-76

July 23, 1991

On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor,

SIXTO DE LA VICTORIA, petitioner,

Aquilino Cantiga, Jr., who assumed the mayorship by operation of law. Neither Me-

vs.

sina's heirs (the private respondents herein), nor her counsel informed the trial court

COMMISSION ON ELECTIONS, HEIRS OF GENOVEVA S. MEDINA repre-

about her death.

sented by FAUSTINO MESINA, JR., JUAN ALAO and VICTOR S. MESINA,

On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his pre-

respondents.

proclamation complaints (SPC Cases Nos. 88-560 and 88-614). The COMELEC

Constante

P.

Pimentel,

et

al.

for

petitioner.

granted his motion.

Regulo M. Bantasan for the Intervenor Aquilino Cantiga, Jr. Sixto, Brillantes, Jr. for

On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional

Heirs

Trial Court (RTC) a verified "Petition to Intervene" in the election protest of De la

of

Genoveva

S.

Mesina.

Evergisto B. Escalon for respondents Juan Alao and Victor S. Mesina.

Victoria. On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for

GRIÑO-AQUINO, J.:

damages and costs against the deceased protestee, Mesina. The trial court granted

This petition for certiorari with preliminary injunction and/or restraining order assails

the motion (p. 389, Rollo).

the order of the Commission on Elections En Banc (COMELEC, for short) which al-

On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substi-

lowed the substitution of the heirs of a deceased candidate as protestee in the elec-

tution of the deceased protestee by her heirs, and requested that his motion be set

tion protest filed by her rival for the office of municipal mayor of Albuera, Leyte, in

for hearing on July 2, 1990.

the local elections on February 1, 1988, and allowed the same heirs to appeal the

De la Victoria opposed the motion for substitution on the ground that the heirs of

decision of the Regional Trial Court declaring her rival (the protestant and herein

Mesina are not the "real party in interest" and that since he (De la Victoria) had

petitioner), as the actual winner in that election.

waived his claim for damages against the deceased, her heirs have no more right to

The contenders for the mayorship of Albuera, Leyte in the special local elections held

intervene in the case or have been "erased from the picture altogether" (Lomugdang

on February 1, 1988 were petitioner Sixto De la Victoria who obtained 5,093 votes,

vs. Javier, 21 SCRA 402 and Vda. de Mesa vs. Mencias, 18 SCRA 533).

the late Genoveva S. Mesina who obtained 5,103 votes, and Loly C. Fian who gar-

On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs

nered 982 votes. On February 3, 1988, the Municipal Board of Canvassers proclaimed

of Mesina and ruled that De la Victoria's waiver of his claim for damages against the

Mesina as the duly elected municipal mayor of Albuera, Leyte. Elected and pro-

said protestee rendered the Motion for Substitution without basis in law, or moot

claimed vice-mayor was her running-mate, Aquilino Cantiga, Jr.

and academic.

In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclamation cases (SPC Nos. 88-560 and 88-614) in the COMELEC but even while they were

On July 17, 1990, the trial court promulgated a decision in the Election Protest No.

On August 6, 1990, the heirs filed in the COMELEC another petition for certiorari and

B-44, declaring the protestant, De la Victoria, as the duly elected Mayor of Albuera,

mandamus (SPR No. 11-90), praying that the execution of the decision of the trial

Leyte, by a margin of 134 votes over the deceased protestee, Genoveva S. Mesina.

court in Election Protest No. B-44 be stopped.

Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by

On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte.

a petition for certiorari and prohibition with preliminary injunction to restrain the trial

On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria

court from rendering a decision in Election Protest No. B-44 or conducting further

to answer the petition in SPR No. 11-90, and setting the petition for preliminary

proceedings therein.

injunction for hearing on August 23, 1990.

On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De

On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2,

la Victoria filed an "Urgent Motion to Disregard Notice of Appeal" on the ground that

1990 denying the motion for substitution of the heirs of the deceased protestee, and

the heirs had no standing in the case as they failed to appeal the July 2, 1990 Order

the Order dated July 23, 1990 which denied due course to the Notice of Appeal of

of the trial court denying their motion for substitution. The trial court in its Order of

the heirs from its decision dated July 17, 1990. It declared the writ of execution null

July 23, 1990, denied the Notice of Appeal and ordered its expulsion from the record

and void and ordered the elevation to it of the records of the case pursuant to Rule

of the case. It held that the intervenor, Vice-Mayor Cantiga, who succeeded the

22 of the COMELEC Rules of Procedure (on appeal from election protest decided by

deceased protestee by operation of law, not the "heirs" of the deceased, is the "real

trial courts of general jurisdiction).

party in interest" in the continuation of the election protest after the demise of the

De la Victoria has come to us for relief through this petition for certiorari with prayer

protestee. Moreover, upon the waiver by De la Victoria of his claim for damages

for the issuance of a temporary restraining order (TRO) where the main issues raised

against Mesina, the latter's heirs had no more legal interest to defend in her behalf.

are: (1) whether the heirs of the deceased protestee in an election protest may be

On July 24, 1990, De la Victoria filed a motion for execution of the trial court's deci-

considered as real party-in-interest even if the vice-mayor has been allowed to in-

sion. It was granted by the court on July 25, 1990. Promptly, on the same day, De

tervene and the protestant had waived his claim for damages and costs in the pro-

la Victoria was sworn into office as the duly elected Mayor of Albuera.

ceedings; and (2) whether said heirs may appeal the decision in the election protest

As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by

(EPC No. B-44).

a petition for certiorari and prohibition with a prayer for the issuance of a writ of

After careful deliberation, the Court is persuaded that the answer to both questions

preliminary injunction (SPR No. 9-90). In his Comment on the petition, De la Victoria

is no.

adverted to the decision dated July 17, 1990 of the trial court which became final

The late Genoveva Mesina's claim to the contested office was not in any sense a

and executory when no appeal was taken therefrom.

transmissible right that devolved upon her surviving spouse and her children (herein

On the same date, the COMELEC denied the heirs' application for a temporary re-

private respondents) after her death. "Public office is personal to the incumbent and

straining order (TRO), but set the case for hearing before the COMELEC En Banc for

is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA

"preliminary determination of the sufficiency of the allegations in the main issue

848). Private respondents' only interest in the outcome of the case is limited to no

raised by said respondents-heirs."

more than their interest in defending her against the protestant's claim for damages

De la Victoria opposed the petition.

and costs (which the protestant, herein petitioner, has already waived). They may no longer prosecute her own counter-claim for damages against the protestant for

that was extinguished when death terminated her light to occupy the contested of-

the death of the protestee mayor in the case at bar, petitioner, as then incumbent

fice of mayor of Albuera, Leyte.

vice-mayor, succeeded by operation of law to the vacated office and is ordinarily

In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled:

entitled to occupy the same for the unexpired term thereof. The outcome of the

The same cannot, however, be said of the protestee's widow or of the local Liberal

election contest necessarily and primarily bears upon his right to his present position

Party chapter of Muntinlupa. The protestee's claim to the contested office is not in

and he is the person directly concerned in the fair and regular conduct of the election

any sense a right transmitted to his widow or heirs. Said widow's remaining interest

in order that the true will of the electorate will be upheld. His status as a real party-

in the outcome of the case is limited to no more than the possible award of costs

in-interest in the continuation of said case cannot thus be disputed. (Emphasis sup-

against the deceased protestee. Besides not being such an interest as would justify

plied.)

her substitution for her deceased husband as an indispensable legal representative,

On the procedural aspects of the case, we find the following observations of the

the right to such an award if eventually made has already been waived by protestant

Solicitor General in his Consolidated Comment dated January 8, 1991, to be well

Argana. This effectively withdraws the widow from the picture altogether. Much less

taken:

has the local Liberal Party Chapter any claim to substitution. Not being duly incor-

. . . respondent COMELEC acted with grave abuse of discretion in giving due course

porated as a juridical person, it can have no personality to sue or be sued as such.

to the [private respondents'] petitions for certiorari filed in SPR Nos. 9-90 and 11-90

And while it conceivably may derive some indirect benefit consequent to the resolu-

filed on August 6, 1990 to set aside the final and executory decision of the trial court

tion of the contest in favor of the deceased protestee, neither the chapter itself nor

promulgated on July 18, 1990, far beyond the 5-day period allowed by [Section 22,

the officers thereof would become entitled thereby to any right to the contested

Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.)

office in case of a favorable judgment, nor, for that matter, do they stand to sustain

Respondent COMELEC further gravely abused its discretion by issuing a "permanent"

any direct prejudice in case of an adverse one. No basis therefore exist upon which

and final injunction to prevent the execution of said final and executory Decision

to predicate their claim to substitution. (Emphasis supplied).

dated July 17, 1990 of the trial court, without the required bond contrary to its own

This ruling was not a mere obiter as the COMELEC erroneously supposed.

Rule 30, Section 4, COMELEC Rules of Procedure. (p. 411, Rollo.)

Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Mu-

However, these issues have been rendered moot and academic by the COMELEC's

nicipal Mayor upon the death of Mesina on July 22, 1989, automatically made him

order of January 23, 1991 dismissing the "reinstated" appeal of the private respond-

the real party-in-interest in the election contest for his right to hold the office of

ents (p. 447, Rollo), for failure to file their Appellant's Brief on December 9, 1990,

municipal mayor is in jeopardy of being lost should De la Victoria win Ms protest.

the last day for filing the same, their Motion for Extension of Time to File said Ap-

Thus did this Court hold in Lomugdang vs. Javier, 21 SCRA 403:

pellant's Brief having been previously denied by the COMELEC for being a prohibited

The vice-mayor elect has the status of a real party-in-interest in the continuation of

pleading under Section 1(c) of Rule 13 of the COMELEC Rules of Procedure, in rela-

the proceedings and is entitled to intervene therein. For if the protest succeeds and

tion to Section 9(b) Rule 22 of the COMELEC Rules of Procedure, The COMELEC's

the protestee is unseated, the vice-mayor succeeds to the office of mayor that be-

dismissal order reads: Consequently, the dismissal of the herein appeal case pursu-

comes vacant if the one duly elected cannot assume the post.

ant to the Comelec Rules of Procedure renders the decision of the Regional Trial

This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990):

Court of Leyte, Branch XIV dated July 17, 1990, as FINAL AND EXECUTORY. (pp.

Now under the Local Government Code, the vice-mayor stands next in line of suc-

459-460, Rollo.) On January 28, 1991, petitioner De la Victoria reassumed the office

cession to the mayor in case of a permanent vacancy in the latter's position. Upon

of Mayor of Albuera, Leyte (p. 460, Rollo).

WHEREFORE, finding merit in the petition for certiorari, the same is hereby

issued TCT Nos. T-192527 and T-192529 by the Register of Deeds of Cavite, which

GRANTED, with costs against private respondents.1âwphi1 The proclamation of

were cancelled in favor of the plaintiffs; 4) vendors' titles which were transferred to

Sixto de la Victoria as mayor of Albuera, Leyte, is upheld

plaintiffs were obtained by virtue of the decisions in Civil Case No. NC-709 entitled

THIRD DIVISION

Tomas Lucido vs. Juana Onate Batallones and Petronilla C. Quimio, Director of Lands, and Registers (sic) of Deeds of Cavite; 5) the heirs of Onofre Batallones and

G.R. No. 115788 September 17, 1998

Norberto Quimio are the vendees of the said lands from the Bureau of Lands as

SPS. SONYA & ISMAEL MATHAY, JR., petitioners,

evidenced by a Certification issued by Adelwisa P. Onga, (sic) Record Officer of the

vs.

District Land Office of Trece Martires City; 6) the sale of the said parcels of land from

HON. COURT OF APPEALS, SPS. TEODULFO & SYLVIA ATANGAN, SPS.

the Bureau of Lands in favor of the heirs of Batallones and Quimio was also evi-

AGUSTINA & AMOR POBLETE, SPS. EDUARDO & FELICISIMA TIRONA, re-

denced by a Deed of Conveyance duly issued by Bureau of Lands; 7) from the time

spondents.

they obtained titles of the two parcels of land [they] have taken possession and paid the corresponding realty property taxes; 8) defendants have enclosed a portion of

PURISIMA, J.:

said property with a fence and occupied 23,800 square meters without the consent

At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking to set aside the Decision

1

of the Court of Appeal

and will of plaintiffs; 9) plaintiffs have learned that defendants as vendees have also

dated November

issued title covering the same land in the name of the plaintiffs under TCT No. T-

dated March 30, 1992

113047; 10) the titles issued to defendants was (sic) the product of forgery because

in Civil Case Nos. TM-175, 180 and 206 of Branch 23, Regional Trial Court of Trece

it was based on an alleged TCT No. T-3444 in favor of Pedro Banayo and Pablo

Martines City, Province of Cavite.

Pugay of Trece Martires City who have no right whatsoever on the real estate in

The antecedent facts which gave rise to private respondents' complaints are sum-

question; 11) upon investigation, it was certified by the Bureau of Lands that the

marized in the Decision of the lower court, as follows:

said titles were falsified and forged because alleged Deed No. V-12918 was issued

Civil Case No. TM-175 entitled "Spouses Teodulfo T. Atangan and Silva [sic] L. Atan-

to one Jack C. Callado for Lot 18, Block 56, Tala Estate situated in Caloocan City and

gan vs. Spouses Sonya Mathay and Ismael Mathay, Jr., and the Register of Deeds

there was no record in the Bureau of Lands that Deed No. V-12918 was issued for

of Cavite," involves (2) [sic] parcels of land situated in Tanza, Cavite, covered by

Lot 2886, S.C. Malabon Estate, Cavite in favor of Pedro Banayo and Pablo Pugay

Transfer Certificate of Title Nos. T-195350 covering Lot No. 2186-A, issued by the

from whom defendants have allegedly acquired title over the said property; 12) con-

Office of the Register of Deeds of Cavite in the name of Spouses Teodulfo T. Atangan

sidering that the title of the defendants have no basis in law and fact and that the

and Silvia [sic] L. Atangan, and TCT No. T-195351, covering Lot No. 2186-C, issued

same was illegally, unlawfully and maliciously issued by the Register of Deeds on

in the name of Silvia [sic] L. Atangan and Teodulfo T. Atangan, on July 24 1985.

the basis of forged and falsified and none [sic] existing documents as basis for the

PLAINTIFFS allege that:

issuance thereof, the same may be cancelled and defendants have no right to take

1) they are the registered owners of two (2) parcels of land situated in Tanza, Cavite

possession of the real properties thereon including the portion pertaining to the

having purchased the same from Spouses Tomas Lucido and Eustaquia Villanueva

herein plaintiffs consisting of 23,800 square meters, more or less; 13) in view of bad

as evidenced by a Deed of Sale; 2) they were issued TCT Nos. T-195350 and T-

faith, illegal and unlawful actuations of the defendants in obtaining titles over the

195351; 3) the vendors, spouses Tomas Lucido and Eustaquia Villanueva were also

property in question thru forged and falsified documents, plaintiffs suffered sleepless

18, 1993 in CA-G.R. CV No. 37902, reversing the Decision

3

2

4

nights, anxiety, mental anguish for which they are entitled to claim for moral dam-

6) plaintiffs have taken possession thereof;

ages in the sum of P100,000.00; 14) despite repeated demands from the plaintiffs

7) defendants have enclosed a portion of said property with a fence and occupied

for the defendants (sic) to desist from enclosing the titled property with a fence, the

114,987 square meters thereof without the consent and against the will of plaintiffs;

latter without any lawful right insisted and actually closed their property with a fence,

8) plaintiffs have learned that defendants as vendees have been also issued Transfer

causing irreparable damage and prejudice to the plaintiffs; 15) in view of the illegal,

Certificate of Title covering the same land titled in the name of the plaintiffs under

unlawful, malicious and bad faith of the defendants and in disregard of the rights of

TCT No. T-112047;

the plaintiffs, the latter are constrained to hire the services of counsel for which they

9) the title issued to defendants was the product of forgery because it was based on

agreed to pay the sum of P50,000.00 in addition to the appearance fee of P500.00

an alleged TCT No. T-111070 in favor of Pedro Banayo and Pablo Pugay of Trece

every hearing of his case.

Martires City who have no right whatsoever on the real estate in question;

xxx

10) upon investigation it was certified by the Bureau of Lands that the said title was

xxx

xxx

Involved in Civil Case No. TM-180 entitled Sps. Agustina Poblete and Amor Poblete

falsified and forged because alleged Deed No. V-12918 was issued to one Juana C.

vs. Sps. Sonya Mathay and Ismael Mathay, Jr., and the Register of Deeds of Cavite

Collado for Lot No. 18, Block 56, Tala Estate situated in Caloocan City and that there

for Annulment of Titles and Recovery of Possession, is a parcel of land situated in

was (sic) no records in the Bureau of Lands that Deed No. 12918 was issued Lot

Tanza, Cavite, covered by Transfer Certificate of Title Nos. T-192532 registered in

2886, S.C. Malabon Estate, Cavite in favor of Pedro Banayo and Pablo Pugay to

the name of Juana Batallones and Gaudencio Quimio which was allegedly sold to the

whom defendants have allegedly acquired title over the said property;

herein plaintiff, as per "Deed of Conditional Sale" dated December 28, 1987.

11) considering that the title of the defendants have (sic) no basis in law and in fact

PLAINTIFFS allege that:

and that the same was illegally, unlawfully and maliciously issued by the Register of

1) Plaintiffs are the registered owners of a parcel of land situated in Tanza, Cavite

Deeds on the basis of forged and falsified and none [sic] existing documents as basis

having purchased the same from Juana Batallones and Gaudencio Quimio for them-

for issuance thereof, the same may be cancelled and defendants have no right to

selves and on behalf of their co-heirs as evidenced by Deed of Sale;

take possession of the real property thereon including the portion pertaining to the

2) Plaintiffs-predecessors-in-interest were duly issued Certificate of Title No. T-

herein plaintiffs consisting of 114,987 square meters more less, said title creates

192532;

cloud on the title of plaintiffs and by predecessors-in-interest and as such plaintiffs

3) said vendees whose titles aforesaid was transferred in favor of the plaintiffs have

could not deal on said property and complete transactions thereto, thereby irrepa-

obtained the title by virtue of the decision by then Court of First Instance of Naic,

rable damage (sic);

Cavite in Civil Case No. NC-709 entitled Tomas Lucido vs. Juana Onate Batallones

12) as a result of the illegal, unlawful, unjust and malicious actuations of the de-

and Petronilla Q. Quimio, Director of Lands, the Register of Deeds of Cavite;

fendants, plaintiffs were deprived of the use of the said parcel of land unlawfully and

4) the heirs of Onofre Batallones and Modesta Quimio are the vendees of the land

illegally occupied by them and they failed to introduce the necessary improvements

from the Bureau of Lands as evidenced by a Certification issued by Adelwisa P. Ong,

thereon and for which they suffered damages in the amount of not less than

Record Officer of the District Land Office of Trece Martires City;

P50,000.00;

5) the sale of the said parcel of land from the Bureau of Lands in favor of the heirs

13) in view of the bad faith, illegal and unlawful actuations of the defendants in

of Batallones and Quimio was also evidenced by a Deed of Conveyance duly issued

obtaining title over the property [, plaintiffs] suffered from sleepless nights, anxiety,

by the Bureau of Lands;

mental anguish for while (sic) they are also entitled to claim for moral damages in

8) plaintiffs bought the subdivided lots from Motas in good faith, and issued Transfer

the sum of P100,000.00;

Certificates of Titles by the Office of the Register of the Register of Deeds of Cavite,

14) despite repeated demands from the plaintiffs for the defendants to desist from

as follows:

enclosing the titled property with a fence, the latter without any lawful right insisted

Name Lot TCT No. Area

and actually enclosed their property with a fence, causing irreparable damage and

1. Sps Eduardo 2186-D-6 203728 3,000 sq. m.

prejudice to the plaintiffs;

Felicisima Tirona 2186-D-1 203723 741 sq. m.

15) in view of the illegal, unlawful, malicious and bad faith of defendants and disre-

2. Soledad Motas & Sps. 2186-D-8 206078 3,409 sq. m.

gard of the right of the plaintiffs, the latter are constrained to hire the services of

Ignacio San Jose &

counsel for which they agreed to pay the sum of P50,000.00 in addition to appear-

Lucila San Jose 2186-D-8 206078 1,591 sq. m.

ance of P500.00 every hearing of this case;

3. Anania Cervania 2186-D-3 203725 2,500 sq. m.

xxx

xxx

5

xxx

4. Ricardo Malabanan 2186-D-4 203726 2,500 sq. m.

In Civil Case No. TM-206 entitled Spouses Eduardo and Felicisima Tirona, et al., vs.

5. Plocerfina Tanyag 2186-D-2 203724 700 sq. m.

Spouses Sonia (sic) Mathay, et al., for "Quieting of Title, Annulment of Title and

6. Ruperta Bartolome 2186-D-5B 220606 550 sq. m.

Recovery of Possession with damage;" etc.

2186-D-5C 220607 700 sq. m.

PLAINTIFFS, allege that:

2186-D-5D 220608 700 sq. m.

3) on December 31, 1985, Spouses Bonifacio Motas and Jualiana Motas bought a

2186-D-A 220605 550 sq. m.

parcel of land situated at (sic) Tanza, Cavite known as Lot 2186-B of Psu-04-01892,

9) plaintiffs are the one (sic) paying the corresponding real property taxes thereon

containing an area of 18,943 square meters covered by Transfer of (sic) Certificate

and were issued corresponding tax declaration by the Office of the Provincial Asses-

of Title No. T-192530 of the Registry of Deeds of Cavite from David Quimio as evi-

sor of Cavite;

denced by a Deed of Absolute sale;

10) plaintiffs have come to know that defendants Spouses Sonia (sic) Mathay and

4) Spouses Bonifacio Motas and Juliana Motas issued TCT No. T-203730 by the Reg-

Ismael Mathay, Jr. have enclosed among others said real properties of the plaintiffs

ister of Deeds of Cavite;

with a fence and took physical possession thereof without the knowledge and con-

5) Vendors David Quimio, Sr., et al., are the previous registered owners of said

sent of the plaintiffs;

parcel of land as evidenced by TCT No. T-192530;

11) plaintiffs have learned also that defendants have also issued Transfer Certificate

6) Vendors David Quimio, Sr., whose title was transferred to Motas have obtained

of the Title covering among others the same land titled in the name of the plaintiffs

rights and interest thereon from their predecessors who were vendees from the

under Transfer Certificate of Title No. T-113047;

Bureau of Lands which confirmed in the Decision of then Court of First Instance of

12) the title issued to defendants was the product of forgery because it was based

Cavite in Civil Case No. 809 entitled Tomas Lucido vs. Juana Batallones and Petronila

on an alleged Transfer of Certificate of Title No. 3444 in favor of Pedro Banayo and

Quimio, et al., issued on January 30, 1981;

Pablo Pugay of Trece Martires City who have no right whatsoever on the real estate

7) said parcel of land was subdivided under Psu-04-01763 into eight lots as evi-

in question and who have been in prior physical possession thereof, as such said

denced by Sub-division Plan; (sic)

title is void-ab-initio;

13) upon investigation, it was certified by the Bureau of Lands that the said titles

After trial of the merits, the lower court decided for defendant spouses Sonya Mathay

were based on falsified and forged documents because alleged Deed No. V-12918

and Ismael Mathay, Jr., and against the plaintiffs in the three consolidated cases;

which was the basis for the issuance thereof, was issued to one Jack C. Gallado for

disposing, thus:

Lot 18, Block 56, Tala Estate situated in Caloocan City and that there was no records

WHEREFORE, foregoing considered, (sic) judgment is hereby rendered in favor of

in the Bureau of Lands that Deed No. V-12918 was issued for Lot 2886, S.C. Malabon

the defendants:

Estate, Cavite in favor of Pedro Banayo and Pablo Pugay to whom defendants have

a) declaring Contract of Sale 3397 in favor of Tomas Lucido, the Assignment of Sale

allegedly acquired title over the said property;

Certificate No. 3397 issued by Tomas Lucido in favor of Onofre Batallones and Norb-

14) the title of the defendants have no basis in law and in fact and that the same

erto Quimio, the Deed Conveyance in favor Onofre Batallones and Norberto Quimio

was illegally, unlawfully and maliciously issued by the Register of Deeds of Cavite on

and Transfer Certificate of Title No. 85866 in the name of Onofre Batallones and

the basis of forged and falsified and none [sic] existing documents;

Norberto Quimio, as null and void;

15) said Transfer Certificate of Titles were illegally and unlawfully issued without

b) declaring Transfer Certificates of Title No. T-195350, T-195351, T-192527, T-

basis in favor of defendants Mathay and their predecessors-in-interest, creating a

192529, T-192528, T-192532, T-252996, T-252997, T-252998, T-252999, T-

cloud on the titles of the plaintiffs and as such may be declared null and void;

253000, T-253001, T-253002, T-253003, T-253004, T-253005, T-253037, T-

16) plaintiffs have the right to exclude defendants Mathays from their enjoyment of

206078, T-203724, T-220506, T-220607, T- 220608, T-220605, T-203728, T-

their property and considering that said defendants have been duly informed of the

203726, T-203730, T-203723 and T-203725, as null and void, and directing the Reg-

insisted and continue to insist in the enjoyment of the right from a void title;

ister of Deeds of Cavite Province to cancel them;

17) as a result of the illegal, unlawful, unjust and malicious actuations of the de-

c) ordering Spouses Teodulfo Atangan & Sylvia Atangan, Onofre Batalloness, Norerto

fendants, plaintiffs were deprived of the use of the said parcel of lands unlawfully

(sic) Quimio, Spouses Tomas Lucido and Juana Batallones, Agustin Poblete, Juancho

and illegally occupied by defendants Mathay as they failed to introduce the necessary

Albert Poblete, Spouses Bonifacio Motas and Juliana Motas, Soledad Mateo, Ricardo

improvements thereon and for which they suffered damages in the amount of not

Malabanan, Florcerfina Bartolome, Spouses Eugenio Bartolome and Ruperto Barto-

less than P50,000.00 and the amount of P500.00 a month for each lot as reasonable

lome, Spouses Eduardo Tirona and Felicisima Tirona and Anania Gervania (sic) to

compensation for the use of their lands;

surrender to the Office of the Register of Deeds of Cavite their owner's copy of their

18) in view of the bad faith, illegal and unlawful actuations of the defendants in

Transfer of Certificates of Title covering portions of Lot 2186;

obtaining titles over the property in question thru forged and falsified documents,

d) declaring TCT No. T-11304 [sic] 7 valid and the defendants to have superior rights

plaintiffs suffered from sleepless nights, anxiety, mental anguish for which they are

to the property in question and to be the true and lawful owners of the same;

also entitled to claim for moral damages in the sum of P150,000.00;

e) ordering plaintiffs jointly and severally liable to pay defendants attorney's fees of

19) in view of the illegal, unlawful, malicious and bad faith of the defendants and in

P50,000.00 and to pay the costs;

disregard of the right of the plaintiffs, the latter are constrained to hire the services

f) denying all their claims of the parties for lack of basis in law and/or evidence.

of counsel for which they agreed to pay the sum of P50,000.00 in addition to an

SO ORDERED.

appearance fee of P1,000.00 every hearing.

On appeal, the Court of Appeals culled from the records on hand the following, facts

xxx

xxx

xxx

6

8,

to wit:

Plaintiffs-appellants and defendants-appellees are all holders of Transfer Certificates

executed by Juana Batallones, et al., and Tomas Lucido whereby the land covered

of Title which all appear duly issued by the Register of Deeds of Cavite.

by TCT No. T-85866 of the Register of Deeds was subdivided into six (6) lots known

Plaintiffs derived their titles as follows:

as Lots 2186-A, 2186-B, 2186-C, 2186-D, 2186-E, and 2186-F, pursuant to approved

The land claimed by the parties is known as Lot 2186 of the Sta. Cruz de Malabon

technical descriptions and subdivision plan Psd-04-10692, and that lots 2186-A con-

Estate originally consisting of 174,914 sq. meters and previously covered by a survey

taining an area of 9,100 sq. meters and lot 2186-C containing an area of 24,700

in the name of plaintiffs predecessor-in-interest Heirs of Onofre Batallones and Heirs

were assigned to Tomas Lucido while the rest of the lots assigned to Juana Batal-

of Patronillo Quimio and Tomas Lucido evidenced by Psd 04-010692 (Exh.

The

lones et al., (Exh. FF).

Heirs of Batallones and Patronillo Quimio were issued TCT No. 85866 on August 9,

Reform (Exh. PP-1)

21

1976 (Exh. C). 10 On July 13, 1976, the Director of Lands transmitted to the Register

quirements or registration the Register of Deeds of Cavite, Trece Martirez (sic) City

of Deeds of Cavite the Deeds of Conveyance and for issuance of corresponding TCT

issued the corresponding Transfer Certificates of Title to the Heirs of Batallones and

to the Heirs of Onofre Batallones and Norberto Quimio represented by Jauna S.

Quimio and Tomas Lucido, as follows:

Batallones and Patronillo Quimio (Exh. K). 11 The original vendee of said lot from the

Lot 2186-A TCT No. 192527 Lucido Tomas (sic)

Bureau of Land was Tomas Lucido who was issued contract of Sale 3397 dated

Exh. E. V-2

March 16, 1936 (Exh. M).

12

A).9

Lucido assigned his rights over said parcel of land to

20

After securing clearance from the Department of Agrarian

and payment of required fees and compliance with the re-

22

Lot 2186-B TCT No. 192528 Exh. AAA

23

Onofre Batallones and Norberto Quimio on October 17, 1944 evidenced by assign-

Lot 2186-C TCT No. 192529 Tomas Lucido

ment of Sale Certificate No. 3397 (Exh. N).

Exh. D. V-3

13

In an [O]rder dated June 18, 1976,

24

said assignment was approved by the Director of Lands (Exh. O). 14 On July 1, 1976

Lot 2186-D TCT No. 192530

the then Department of Natural Resources through Jose A. Janalo, Assistant Secre-

Lot 2186-E TCT No. 192531 Exh. AAA-1

tary issued Sales Certificate No. 3397, Deed No. T-11692 to Heirs of Batallones and

Lot 2186-F TCT No. 192532 Exh. G

Quimio (Exh. Q).

15

25

On June 18, 1976, the Bureau of Lands forwarded to the De-

Tomas Lucido married to Eustaquia Villanueva who was the registered owner of lot

partment of Natural Resources for signature the Deeds of Conveyance in favor of

2186-A, TCT No. 192527 (Exh. E; V-2) 262186-A sold to plaintiffs Teodulfo P. Atangan

Heirs of Batallones and Quimio (Exh. S).

16

After the Heirs of Batallones and Quimio were duly issued TCT No. 85866

17

on

August 9, 1976, Tomas Lucido filed Civil Case No. NC 709 before the then Court of First Instance of Cavite, Branch 1, Naic, Cavite (Exh. GG)

18

which ended in a Deci-

married to Sylvia Atangan

27

evidenced by a Deed of Absolute Sale [e]xecuted on

July 12, 1985 (Exh. U-1).

29

and another Deed of Sale for lot 2186-C (Exh. U)

29

Plaintiffs Atangan were duly issued TCT Nos. T-195350 for lot 2186-A and TCT No. T-195351 for lot 2186-C (Exhs. V-1 and V, respectively).

30

Said plaintiffs paid the

sion by said court based on a Compromise Agreement duly executed by Juana Onate

corresponding taxes thereon (Exh. U-6, U-7)

Batallones representing the heirs of Onofre Batallones and Patronillo Onate Quimio,

laration No. 11677 and Tax Declaration No. 11679 (Exh. U-4, U-3, respectively).

representing the heirs of Norberto Quimio and pursuant thereto 35,000 sq. meters

Juana Batallones, et al., sold lot 2186-F to plaintiffs Agustina Poblete, married to

on the southern portion was given to Tomas Lucido married to Eustaquia Villanueva

Amor Poblete, Juancho Albert A. Poblete, and Juliana Motas married to Bonifacio

while the remaining portion of Lot 2186 pertained and belonged to the defendants

Motas

Heirs of Batallones and Heirs of Norberto Quimio (Exh. Y).

19

Pursuant to the Ap-

proved Compromise Agreement in the said decision (Exh. Y), a deed of partition was

34

33

31

and they were duly issued tax dec32

evidenced by a deed of absolute sale executed on June 8, 1988 (Exh. XX).

Said parcel of land was subdivided under Sub. plan Psd-04-0106-92, and, as a

result the following Certificate of Title were issued to the following plaintiffs:

Lot 2186-F-1 TCT No. T-252996 Agustina Poblete

2 Soledad Mateo (sic) & 2186-D-8 206078 3,409 sq. m.

Exh. SS

Sps. Ignacio San Jose

35

Lot 2186-F-2 TCT No. T-252997 — do —

& Lucila San Jose 2186-D-8 206078 1,591 sq. m.

Exh. SS-1

3 Anania Cervania 2186-D-3 203725 2,500 sq. m.

36

Lot 2186-F-3 TCT No. T-252998 — do —

4 Ricardo Malabanan 2186-D-4 203726 2,500 sq. m.

Exh. SS-2

5 Plocerfina Tanyag 2186-D-2 203724 700 sq. m.

37

Lot 2186-F-4 TCT No. 252999 — do —

6 Ruperta Bartolome 2186-D-5B 220606 550 sq. m.

Exh. SS-3

2186-D-5C 220608 700 sq. m.

38

Lot 2186-F-5 TCT No. T-253000 Juancho Albert Poblete

2186-D-5D 220608 550 sq. m.

Exh. SS-4

2186-D-A 220605 550 sq. m.

39

Lot 2186-F-6 TCT No. T-213001 — do — Exh. SS-5

1. Sps Eduardo R. Tirona Exh. SS-11

40

Exh. SS-12

Lot 2186-F-7 TCT No. T-253002 Juancho Albert Poblete Exh. SS-6

41

42

3. Anania Servnia (sic) Exh. SS-20 4. Ricardo Malabanan Exh. NN-4

43

5. Plocerfina Tanyag Exh. NN-3

Lot 2186-F-10 TCT No. T-253005 — do — Exh. SS-9

49

50

51

6. Ruperta Malabanan Exh. NN-6

44

52

Exh. NN-7

Lot 2186-F-11 TCT No. T- 253007 — do —

Exh. NN-8

Exh. SS-10

Exh. NN-9

45

David Quimio, owners of lot 2186-D, TCT No. 19530 sold the same to plaintiffs Jua-

7. Plaintiff Juliana Motas & Lot No. 2186-D

liana Motas married to Bonifacio Motas evidenced by a notarized deed of absolute

Bonifacio Motas TCT No. 203730

sale dated December 31, 1985 (Exh. VV).

48

Exh. SS-19

Lot 2186-F-9 TCT No. T-253004 — do — Exh. SS-8

2. Soledad Motas & Sps. Ignacio Exh. NN-1 San Jose & Lucila San Jose Exh. SS-13

Lot 2186-F-8 TCT No. T-253003 Jualiana Motas Exh. SS-7

47

46

Said lot contained an area of 18,943

Exh. VV-1

53

sq. meters more or less. She was issued TCT No. T-201592 by the Register of Deed

Said plaintiffs were duly issued corresponding Tax Declaration and have paid the

(sic) of Cavite. Plaintiffs Motas caused said lot to be subdivided under Psd-017063

realty taxes

and sold the same to plaintiffs Tirona, et al., in Civil Case No. TM-206 and corre-

of land until the same were fenced by defendants Mathay's men over their objection

sponding Transfer Certificates of Titles were issued to the sail plaintiffs as follows:

and upon inquires, they discovered that the defendants Mathay were issued TCT No.

Name Lot TCT No. Area

T-113047 covering same parcel of land (Exh. 2)55 based on a Deed of Absolute

1 Sps Eduardo & 2186-D-6 203728 3,000 sq. m.

[S]ale executed allegedly on 21 May 1980 by Pedro Banayo and Pablo Pugay (Exh.

Felicisima Tirona 2186-D-1 203723 741 sq. m.

3)

56

54

thereon and they were in actual possession of the contested parcels

and notarized by Manalad Santera (Exh. 3-A).

57

Defendants-appellees Spouses Sonya Mathay and Ismael Mathay, Jr. claimed that

2186 of Sta. Cruz de Malabon Estate in the name of Spouses Ismael and Sonya

the land described as Lot 2186 of the Sta. Cruz de Malabon Estate, situated in Tanza,

Mathay. Spouses Ismael and Sonya Mathay are ordered to vacate Lot 2186, Sta.

Cavite, containing an area of 174,917 square meters covered by TCT No. T-111070

Cruz de Malabon Estate, Cavite in favor of the plaintiffs-appellants.

(Exh. 8),

SO ORDERED.

58

registered in the name of Pedro Banayo and Pablo Pugay on February

28, 1980 was purchased by the defendants from Pedro Pugay on May 31, 1980 (Exh.

With the denial of their motion for reconsideration, the spouses Sonya Mathay and

3, 3-A), and TCT No. T-113047 (Exh. 2) 60 was issued in their favor on June 3, 1980

Ismael Mathay, Jr. found their way to this Court via the present Petition; theorizing,

by the Office of the Register of Deeds of Cavite Province, declared for taxation pur-

that:

posed (sic) (Exh. 4, 5) 61 and corresponding taxes paid (Exh. 18, 19, 20, 21, 22). 62

I.

It appears that Director of Lands Ramon N. Casanova, under the Deed No. V-12918

WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN SETTING ASIDE THE GEN-

and Sales Certificates No. 2454 in consideration of P8,958.00 sold to Pedro Banayo

UINE TRANSFER CERTIFICATE OF TITLE NO. 113047 OF SPS. SONYA & ISMAEL

and Pablo Pugay Lot 2186 of the Sta. Cruz de Malabon Estate, friar Lands Estate,

MATHAY JR., WHO ACQUIRED THE SAID TORRENS TITLE AS BUYERS IN GOOD

situated in the Municipality of Tanza, Province of Cavite, containing an area of 17

FAITH, SINCE THE DOCUMENTS NECESSARY FOR THE TRANSFER, EVEN PRIOR TO

hectares, 49 areas and 17 centares of the subdivision plan A-21 approved by the

THE SALE, WERE ALL DULY FILED AND CLEARED WITH THE RE REGISTER OF

Court of Land Registration on the 4th day of February, 1911 (Exh. 15)

with the

DEEDS, ASSESSOR'S OFFICE, B.I.R., AND OTHER GOVERNMENT ENTITLES. MORE-

and on February 21, 1980, a letter

OVER, THE LAW STATED IN "DINO VS. COURT OF APPEALS," G.R. NO. 95921,

addressed to the Register of Deeds for issuance of title to Pedro Banayo and Pablo

SHOULD BE UPHELD, IN CASE OF BASELESS ASSERTION OF ALLEGED FORGERY BY

technical description of the land (Exh. 15-A) Pugay (Exh. 16)

65

64

63

which was cancelled by TCT No. 113047 issued in the name of

Spouses Sonya Mathay and Ismael Mathay, Jr., (Exh. 2),

66

and that according to

THE RESPONDENTS; II.

the old Sales Register Book kept in the office, Lot 2186 of the Sta. Cruz de Malabon

WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN NOT RECOGNIZING THE

Estate, Cavite, is registered in the name of Pedro Banayo and Pablo Pugay (Exh. 17-

1980 TITLE OF SPS. SONYA & ISMAEL MATHAY JR. OVER AND ABOVE THE LATER

A).

67

It appears also that Pugay and Banayo were assignees of the subject lot under

Assignment of Sale Certificates No. 3397,

68

of the Bureau of Lands, with Tomas

Lucido as Assignor. xxx

xxx

1986-88 ALLEGED TITLES OF RESPONDENTS-ATANGAN ET AL., WHICH IS CLEARLY CONTRARY TO THE APPLICABLE LAW ON THE MATTER, NAMELY: ART. 1544 OF THE CIVIL CODE OF THE PHILIPPINES;

xxx

III.

On November 18, 1993, the Court of Appeals came out with a judgment of reversal,

WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT

the dispositive portion of which, reads:

THE DEED OF SALE EXECUTED BY VENDORS — BANAYO & PUGAY IN FAVOR OF

WHEREFORE, premises considered, judgment is rendered in favor of plaintiffs-ap-

VENDEES — SPS. SONYA & ISMAEL MATHAY, JR., IS DULY NOTARIZED IN SO FAR

pellants in the above-entitled three cases against defendants-appellees. The consol-

AS THE VENDORS AND VENDEES ARE CONCERNED AND THAT, FURTHERMORE,

idated decision of the Regional Trial Court, Branch 23, Trece Martirez (sic) City in

THE COURT OF APPEALS ERRED IN NOT CONSIDERING THE VALIDITY OF THE

Civil Case No. TM-175, Civil Case No. TM-180 and Civil Case No. TM-206 is reversed

PETITIONERS' DOCUMENTS, WHICH WERE ALL DULY EXECUTED.

and set aside. The defendants-appellees Register of Deeds of Cavite, Trece Martirez

The petitioners, spouses Sonya Mathay and Ismael Mathay, Jr., claim to be buyers

(sic) City is ordered to cancel Transfer Certificate of Title No. 113047 covering Lot

in good faith, reasoning out that TCT No. T-111070, the derivative title of their TCT

No. T-113047, appeared to be free from any encumbrance. They argue that a person

So also, before the fence around subject property was erected, private respondent

dealing on a registered land may safely rely on the correctness of the covering cer-

communicated their objection to the fencing of the area by petitioners but they were

tificate of title and is not required to go beyond the certificate of title to determine

ignored by the petitioners, who continued enclosing the premises under controversy

the condition of the property.

in the presence of armed men employed by them (petitioners).

A purchaser in good faith and for value is defined as "one who buys property of

Consequently, not being "innocent purchasers for value," within legal contemplation,

another, without notice that some other person has a right to, or interest in, such

petitioner's reliance on Article 1544 of the New Civil Code is misplaced. Such stance

property and pays a full and fair price for the same at the time of such purchase, or

of their lacks legal and factual basis. The fundamental premise of preferential rights

before he has notice of the claims or interest of some other person in the property."

under the law is good faith.

69

71

As a rule, he who asserts the status of a purchaser in good faith and for value,

Viewed in proper perspective, we uphold the finding by the Court of Appeals that

has the burden of proving such assertion. This onus probandi cannot be discharged

the petitioners cannot invoke Art. 1544 of the Civil Code in view of the questionable

by mere invocation of the legal presumption of good faith, i.e., that everyone is

documents from which their title emanated. As the Court of Appeals ratiocinated:

presumed to act in good faith."

We think the applicable rule as stated in Baltazar v. Court of Appeals, No. L-78728,

70

Here, petitioners cannot be categorized as purchasers in good faith. Prior to the

December 8, 1988, 168 SCRA 334, is that as between two persons both of whom

fencing of subject land, neither they (Mathays) nor their predecessors-in-interest

are in good faith and both innocent of any negligence, the law must protect and

(Banayo and Pugay) ever possessed the same. In fact, at the time the said property

prefer the lawful holder of registered title over the transferee of a vendor bereft of

was sold to petitioners, the private respondents were not only in actual possession

any transmissible rights. Under the foregoing principle derived from the above case

of the same but also built their houses thereon, cultivated it and were in full enjoy-

law, the Mathays have no rights as against plaintiffs-appellants, their recourse is

ment of the produce and fruits gathered therefrom. Although it is a recognized prin-

against their vendors Banayo and Pugay.

ciple that a person dealing on a registered land need not go beyond its certificate of

The aforesaid ruling of the Court of Appeals accords with the Latin maxim: nemo

title, it is also a firmly settled rule that where there are circumstances which would

pofest plus juris ad alium transferre quam ipse habet. "No one can transfer a greater

put a party on guard and prompt him to investigate or inspect the property being

right to another than he himself has". Thus, in Calalang vs. Register of Deeds of

sold to him, such as the presence of occupants/tenants thereon, it is, of course,

Quezon City,73 this Court held:

expected from the purchaser of a valued piece of land to inquire first into the status

Needless to state, all subsequent certificates of title including petitioner's titles are

or nature of possession of the occupants, i.e., whether or not the occupants possess

void because of the legal truism that the spring cannot rise higher than its source.

the land en concepto de dueño, in concept of owner. As is the common practice in

The law must protect and prefer the lawful owner of registered title over the trans-

the real estate industry, an ocular inspection of the premises involved is a safeguard

feree of a vendor bereft of any transmissible rights.

a cautious and prudent purchaser usually takes. Should he find out that the land he

In sum, "defective titles cannot be upheld against the unblemished titles of the pri-

intends to buy is occupied by anybody else other than the seller who, as in this case,

vate respondents."

is not in actual possession, it would then be incumbent upon the purchaser to verify

Petitioners further submit that requiring them to inquire beyond the face of the tor-

the extent of the occupant's possessory rights. The failure of a prospective buyer to

rens title defeats the primordial objective of the torrens system, which is that a

take such precautionary steps would mean negligence on his part and would thereby

person dealing on registered land has the right to rely on the torrens title.

prelude him from claiming or invoking the rights of a "purchaser in good faith."

72

74

But "a certificate is not conclusive evidence of title if it is shown that the same land

The assignment of Sales Certificate No. 3397 allegedly executed by Tomas Lucido in

had already been registered and an earlier certificate for the same is in existence."

favor of Pedro Banayo and Pablo Pugay was not signed by the said Tomas Lucido.

75

Neither does it bear the signature of the latter. Worse, the same Tomas Lucido

In the case at bar, as borne out by pertinent records, the private respondents

obtained their rights and title from TCT No. T-85866, which was registered on August

testified on the witness stand,

9, 1976 under the name of Heirs of Onofre Batallones and Patronillo Quimio. On the

Pugay, and he never received P50,000.00 from them. What is more, Tomas Lucido

part of petitioners, their supposed title originated from a spurious title of Pedro Ba-

reiterated that he really sold the land in question to the herein private respondents,

nayo and Pablo Pugay illegally registered on February 28, 1980.

spouses Teodulfo Atangan and Sylvia Atangan, the plaintiffs in Civil Case No. TM-

So also, where two transfer certificates of title have been issued on different dates,

175, as shown by the two Deeds of Sale 79 he executed in favor of the said spouses.

to two different persons, for the same parcel of land, even if both are presumed to

Teodulfo Atangan and Sylvia Atangan.

be title holders in good faith, it does not necessarily follow that he who holds the

To reinforce their aforesaid second theory, Banayo and Pugay declared that, for and

earlier title should prevail. On the assumption that there was regularity in the regis-

in consideration of Eight Thousand Nine Hundred Fifty Eight (P8,958.00) Pesos, for-

tration leading to the eventual issuance of subject transfer certificates of title, the

mer Director of Lands Ramon Casanova issued Deed No. V-12918 with Sales Certif-

better approach is to trace the original certificates from which the certificates of title

icate No. 2454, which Deed was the basis of the issuance to them of TCT No. T-

in dispute were derived. Should there be only one common original certificate of

111070 by the Register of Deeds of the Province of Cavite.

title, as in this case under consideration, the transfer certificate issued on an earlier

But Mr. Marcelino Freiras, Chief of Reservation and Special Land Grant Section of

date along the line must prevail, absent any anomaly or irregularity tainting the

the Bureau of Lands, stressed that the signature of former Lands Director Ramon

process of registration.

Casanova on the said Deed No. V-12918 with Sales Certificate No. 2454, was forged.

In light of the attendant facts and circumstances, there is therefore a need to refer

According to him (Freiras), having worked with him for the past thirty (30) years, he

to the background or history of the land under controversy. As conceded by peti-

is familiar with the signature of Director

tioners, their TCT No. T-113047 was derived from TCT No. 111070 under the names

Casanova.

of Pedro Banayo and Pablo Pugay. Hence, the necessity of looking into and deter-

Then, too, in a letter

mining the legitimacy of the title of the two, Banayo and Pugay.

spondents, the same Mr. Freiras informed that, as indicated by the entries in the

In an effort to support their claim of ownership over subject Lot 2186, Pedro Banayo

Deed of Conveyance Book,

and Pablo Pugay presented two theories. First, they theorize that on October 17,

Lot No. 18, Block 16, Tala Estate, Caloocan City, in the name of one Zaida C. Calado,

1970, under Assignment of Sale Certificate No. 3397, 76 Tomas Lucido assigned and

and not for the subject land, identified as Lot 2186 of Sta. Cruz de Malabon Estate.

transferred to them all his interests in the contested land. Their second theory is

Cavite City, originally registered under the names of the Heirs of Onofre Batallones

that subject real property was sold to them by then Director of Lands Ramon N.

and Patronillo Quimio. In another letter

Casanova, under Deed No. V-12918 and Sales Certificate No. 2454.

77

78

that he does not know Pedro Banayo and Pablo

80 81

addressed to Atty. Franco Loyola, counsel for private re82

Deed V-12918 was issued on October 10, 1979, for

83

sent in answer to the query of Juana

Motas, one of the plaintiffs in Civil Case No. TM-180, Alicia V. Dayrit, Office Caretaker

After a careful examination of germane records, however, we are of the conclusion,

of Land Management Division of the Bureau of Lands, corroborated what Mr. Freiras

and so find, that the aforestated theories of Pedro Banayo and Pablo Pugay are

disclosed, as aforementioned. In her said letter, Alicia V. Dayrit revealed to Mrs.

without any factual and legal basis.

Motas that there is really no record of any Deed No. V-12918 issued for Lot 2186 of Sta. Cruz de Malabon Estate, Cavite City, in favor of Pedro Banayo and Pablo Pugay,

and that what appears in the Registry Book of Deeds of Conveyance is Deed of

not duly notarized. Atty. Mapalad Santera, who signed the document as Notary Pub-

Conveyance No. V-11692 issued on July 1, 1976 in favor of Onofre Batallones and

lic, had no commission as Notary Public for the Province of Cavite, at the time subject

Norberto Quimio by the then Secretary of Natural Resources which Deed pertains to

document was supposedly

Lot 2186 of Sta. Cruz de Malabon Estate. The aforesaid revelations were corrobo-

notarized,

rated in open court by witness Freiras.

84

Further, the Court detected discrepancies

90

and the residence certificates of vendors Banayo and Pugay appeared

to be of dubious source.

91

in the entries of the documents above mentioned. Pedro Banayo and Pablo Pugay

To bolster their submission that their title is genuine and authentic, private respond-

contended that by virtue of Sales Certificate No. 2454, the then Director of Lands

ents introduced several documentary evidence. They also presented officials con-

Ramon Casanova issued Deed V-12918, on February 18, 1980.

cerned and the caretakers of the said documents, who all testified for the private

85

However, after a

meticulous examination of the evidence on record, the Court noticed that former

respondents.

Director Ramon Casanova issued another Deed V-12918 but, bearing Sales Certifi-

On the other hand, the petitioners, spouses Sonya Mathay and Ismael Mathay, Jr.,

cate No. 3397 and dated February 19, 1980.

86

It should be remembered that Pedro

who claim to be buyers in good faith, utterly failed to discharge the burden of proving

Banayo and Pablo Pugay declared that the issuance of TCT No. T-111070 in their

the sustainability of their posture. Worse for them, as above discussed, the title of

favor was based on the said two documents, both bearing the signature of Director

Pedro Banayo and Pablo Pugay relied upon by petitioners has been shown by pre-

Casanova.

ponderance of evidence to be the product of forgery.

The foregoing observations jibe with the revelation of Freiras that the alleged signa-

All things studiedly considered, we are of the irresistible conclusion that the respond-

tures of former Lands Director Ramon Casanova appearing on the said documents

ent Court of Appeals did not err in reversing the appealed decision of the trial court.

in question were forged. Also strengthened thereby is the testimony of Mrs. Adelwisa

WHEREFORE, the Petition is DISMISSED for lack of merit, and the Decision of the

O. Ong, former Record Officer and now Acting Administrative Officer of the Bureau

Court of Appeals in CA-GR CV No. 37902 AFFIRMED in toto. No pronouncement as

of Lands in Cavite, that subject land was patented under Deed No. V-11692, regis-

to costs.SO ORDERED.

tered under the name of the Heirs of Onofre Batallones and Norberto Quimio, and

FIRST DIVISION

the name of Tomas Lucido was mentioned in the Old Sales Register Book as he was the approved vendee of the same.

87

G.R. No. 110544 October 17, 1995

Besides, it is too evident to be overlooked that the number of the Sales Certificate

REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros

of the second Deed V-12918 (bearing Sales Certificate No. 3397) is the same number

Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A.

of the Sales Certificate appearing in the Assignment of Sale allegedly executed by

VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL

Tomas Lucido in favor of Pedro Banayo and Pablo Pugay. This fact alone, which this

LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A.

Court cannot ignore, is fatal to the cause of Pedro Banayo and Pablo Pugay.

VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FOR-

Furthermore, the circumstances surrounding the execution of the Deed of Absolute

MER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS

Sale

88

by Pedro Banayo and Pablo Pugay in favor of the spouses Sonya Mathay and

Ismael Mathay, Jr. beclouded the issuance of TCT No. 113047.

89

Records disclose

that the said Deed of Absolute Sale did not comply with legal formalities and was

ORIENTAL, petitioners, vs. THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.

NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. KAPUNAN, J.:

SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019,

Petitioners institute this special civil action for certiorari and prohibition under Rule

as amended, committed as follows:

65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan

That during the period from February 1989 to February 1991 and subsequent

dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in

thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction

Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda,

of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA,

et al." denying petitioners' motion for suspension of their arraignment.

Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM,

The present controversy arose from the following antecedents:

NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V.

On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan

SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the

were designated as industrial labor sectoral representative and agricultural labor

performance of their official functions and taking advantage of their public positions,

sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Prov-

with evident bad faith, manifest partiality, and conspiring and confederating with

ince of Negros Oriental by then Secretary Luis T. Santos of the Department of Local

each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral

Government. Private respondents Binaohan and Estrellanes took their oath of office

Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite

on 16 February 1989 and 17 February 1989, respectively.

demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS

Subsequently, petitioners filed an undated petition with the Office of the President

(P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS

for review and recall of said designations. The latter, however, in a letter dated 20

(P108,900.00) representing respectively their per diems, salaries and other privi-

March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize

leges and benefits, and such undue injury continuing to the present to the prejudice

private respondents as sectoral representatives.

and damage of Bartolome Binaohan and Delia Estrellanes.

On 4 May 1990, private respondents filed a petition for mandamus with the Regional

CONTRARY TO LAW. 1

Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661,

On 9 September 1991, petitioners filed a motion with the Sandiganbayan for sus-

for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July

pension of the proceedings in Criminal Case No. 16936 on the ground that a preju-

1991.

dicial question exists in Civil Case No. 9955 pending before the Regional Trial Court

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court

of Dumaguete City.2

of Dumaguete City to declare null and void the designations of private respondents

On 16 January 1992, the Regional Trial Court rendered a decision declaring null and

as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tu-

void ab initio the designations issued by the Department of Local Government to the

anda, et al. versus Secretary of the Department of Local Government, et al."

private respondents as sectoral representatives for having been done in violation of

On 21 July 1991, an information was filed before the Sandiganbayan, docketed as

Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code.3

Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda,

The trial court expounded thus:

et al." charging petitioners thus:

The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al.,

INFORMATION

G.R. No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012,

The undersigned Special Prosecution Officer of the Special Prosecutor, hereby ac-

87601, 87602, 87792, 87935, 88072, and 90205) all promulgated on August 24,

cuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM,

1990, ruled that:

B.P. Blg. 337 explicitly required that before the President (or the Secretary of the

Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon.

Department of Local Government) may appoint members of the local legislative bod-

Luis Santos, et al., G.R. No. 86394, August 24, 1990).4

ies to represent the Industrial and Agricultural Labor Sectors, there must be a de-

Private respondents appealed the aforestated decision to the Court of Appeals, dock-

termination to be made by the Sanggunian itself that the said sectors are of sufficient

eted as CA-G.R. CV No. 36769, where the same is currently pending resolution.

number in the city or municipality to warrant representation after consultation with

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution

associations and persons belonging to the sector concerned.

denying the motion for suspension of proceedings filed by petitioners. Said respond-

The Supreme Court further ruled —

ent Sandiganbayan:

For that matter, the Implementing Rules and Regulations of the Local Government

Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros

Code even prescribe the time and manner by which such determination is to be

Oriental, it appears, nevertheless, that the private complainants have been rendering

conducted by the Sanggunian.

services on the basis of their respective appointments as sectoral members of the

Consequently, in cases where the Sanggunian concerned has not yet determined

Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their

that the Industrial and Agricultural Labor Sectors in their particular city or munici-

said appointments enjoy the presumption of regularity. Having rendered such ser-

pality are of sufficient number to warrant representation, there will absolutely be no

vices, the private complainants are entitled to the salaries attached to their office.

basis for the designation/appointments.

Even assuming arguendo that the said Regional Trial Court shall later decide that

In the process of such inquiry as to the sufficiency in number of the sector concerned

the said appointments of the private complainants are null and void, still the private

to warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to con-

complainants are entitled to their salaries and compensation for service they have

sult with associations and persons belonging to the sector concerned. Consultation

actually rendered, for the reason that before such judicial declaration of nullity, the

with the sector concerned is made a pre-requisite. This is so considering that those

private complainants are considered at least de facto public officers acting as such

who belong to the said sector are the ones primarily interested in being represented

on the basis of apparently valid appointments issued by competent authorities. In

in the Sanggunian. In the same aforecited case, the Supreme Court considers such

other words, regardless of the decision that may be rendered in Civil Case

prior determination by the Sanggunian itself (not by any other person or body) as a

No. 9955, the private complainants are entitled to their withheld salaries for the

condition sine qua non to a valid appointment or designation.

services they have actually rendered as sectoral representatives of the said Sanggu-

Since in the present case, there was total absence of the required prior determina-

niang Bayan. Hence, the decision that may be rendered by the Regional Trial Court

tion by the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the

in Civil Case No. 9955 would not be determinative of the innocence or guilt of the

designations of private defendants as sectoral representatives null and void.

accused.

This verdict is not without precedence. In several similar cases, the Supreme Court

WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of

invariably nullified the designations where the requirements of Sec. 146 (2), B.P.

Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack

Blg. 337 were not complied with. Just to cite one case, the Supreme Court ruled:

of merit.

There is no certification from the Sangguniang Bayan of Valenzuela that the sectors

SO ORDERED.5

concerned are of sufficient number to warrant representation and there was no con-

Petitioners filed a motion for reconsideration of the aforementioned resolution in

sultation whatsoever with the associations and persons belonging to the Industrial

view of the decision promulgated by the trial court nullifying the appointments of

and Agricultural Labor Sectors. Therefore, the appointment of private respondents

private respondents but it was, likewise, denied in an order issued by respondent

Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the

B. The Respondent Court acted without or in excess of jurisdiction in refusing to

said motion were a mere rehash of petitioners' original motion to hold the case in

suspend the proceedings that would entail a retrial and rehearing by it of the basic

abeyance.6

issue involved, i.e., the validity of the appointments of private respondents and their

The dispositive portion of its order reads as follows:

WHEREFORE, in view of the foregoing, the arraignment of the accused which was

entitlement to compensation which is already pending resolution by the Court of

scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada,

Appeals in C.A. G.R. CV No. 36769; and

Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrel-

C. The Respondent Court committed grave abuse of discretion and/or acted without

lanes are, however, hereby ordered to show cause in writing within ten (10) days

or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under

from service hereof why they should not be cited for contempt of court for their

two alternative theories that private respondents are de jure and/or de facto officers

failure to appear in court today for arraignment.

in violation of petitioners' right to due process.10

In case of an adverse resolution on the motion to quash which is to be filed by the

In sum, the only issue in the case at bench is whether or not the legality or validity

counsel for the defense, set this case for arraignment, pre-trial and trial on January

of private respondents' designation as sectoral representatives which is pending res-

4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning.

olution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the

SO

ORDERED.7

proceedings in the criminal case against petitioners.

On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of an extended

resolution.8

A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed (see Art. 36, Civil Code) because a deci-

No such resolution, however, was issued and in its assailed order dated 13 May

sion on that point is vital to the eventual judgment in the criminal case. Thus, the

1992, respondent Sandiganbayan set the arraignment of petitioners on 30 June

resolution of the prejudicial question is a logical antecedent of the issues involved in

1993. The dispositive portion of the order reads:

said criminal case.11

WHEREFORE, considering the absence of the accused from the scheduled hearing

A prejudicial question is defined as that which arises in a case the resolution of which

today which We deem to be excusable, reset this case for arraignment on June 30,

is a logical antecedent of the issue involved therein, and the cognizance of which

1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the

pertains to another tribunal. The prejudicial question must be determinative of the

trial to start at 8:30 o'clock in the morning.

case before the court but the jurisdiction to try and resolve the question must be

Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Con-

lodged in another court or tribunal.12 It is a question based on a fact distinct and

sidering that the accused come all the way from Himalalud, Negros Oriental, no

separate from "the crime but so intimately connected with it that it determines the

postponement will be allowed.

guilt or innocence of the accused, and for it to suspend the criminal action, it must

SO ORDERED.9

appear not only that said case involves facts intimately related to those upon which

Hence, this special civil action for certiorari and prohibition where petitioners attrib-

the criminal prosecution would be based but also that in the resolution of the issue

ute to respondent Sandiganbayan the following errors:

or issues raised in the civil case, the guilt or innocence of the accused would neces-

A. The Respondent Court committed grave abuse of discretion in denying petitioners'

sarily be determined. It comes into play generally in a situation where a civil action

motions for the suspension of the proceedings in Criminal Case No. 16936 in spite

and a criminal action are both pending and there exists in the former an issue which

of the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No.

must be preemptively resolved before the criminal action may proceed, because

36769;

howsoever the issue raised in the civil action is resolved would be determinative juris

in the first place no obligation on their part to pay private respondents' claims. Pri-

et de jure of the guilt or innocence of the accused in the criminal case."13

vate respondents do not have any legal right to demand salaries, per diems and

The rationale behind the principle of prejudicial question is to avoid two conflicting

other benefits. In other words, the Court of Appeals' resolution of the issues raised

decisions.14 It has two essential elements:

in the civil action will ultimately determine whether or not there is basis to proceed

(a) the civil action involves an issue similar or intimately related to the issue raised

with the criminal case.

in the criminal action; and

Private respondents insist that even if their designations are nullified, they are enti-

(b) the resolution of such issue determines whether or not the criminal action may

tled to compensation for actual services rendered.16 We disagree. As found by the

proceed.15

trial court and as borne out by the records, from the start, private respondents'

Applying the foregoing principles to the case at bench, we find that the issue in the

designations as sectoral representatives have been challenged by petitioners. They

civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant

began with a petition filed with the Office of the President copies of which were

suspension of the arraignment and further proceedings in the criminal case against

received by private respondents on 26 February 1989, barely eight (8) days after

petitioners.

they took their oath of office.17 Hence, private respondents' claim that they have

All the elements of a prejudicial question are clearly and unmistakably present in this

actually rendered services as sectoral representatives has not been established.

case. There is no doubt that the facts and issues involved in the civil action (No.

Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the

36769) and the criminal case (No. 16936) are closely related. The filing of the crim-

event that private respondents' designations are finally declared invalid, they may

inal case was premised on petitioners' alleged partiality and evident bad faith in not

still be considered de facto public officers entitled to compensation for services ac-

paying private respondents' salaries and per diems as sectoral representatives, while

tually rendered.

the civil action was instituted precisely to resolve whether or not the designations of

The conditions and elements of de facto officership are the following:

private respondents as sectoral representatives were made in accordance with law.

1) There must be a de jure office;

More importantly, ,the resolution of the civil case will certainly determine if there will

2) There must be color of right or general acquiescence by the public; and

still be any reason to proceed with the criminal action.

3) There must be actual physical possession of the office in good faith.18

Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA

One can qualify as a de facto officer only if all the aforestated elements are present.

3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partial-

There can be no de facto officer where there is no de jure office, although there

ity, to pay private respondents' salaries as sectoral representatives. This refusal,

may be a de facto officer in a de jure office.19

however, was anchored on petitioners' assertion that said designations were made

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August

in violation of the Local Government Code (B.P. Blg. 337) and thus, were null and

1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936

void. Therefore, should the Court of Appeals uphold the trial court's decision declar-

are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with

ing null and void private respondents' designations as sectoral representatives for

the arraignment and trial of petitioners in Criminal Case No. 16936 pending final

failure to comply with the provisions of the Local Government Code (B.P. Blg. 337,

resolution of CA-G.R. CV No. 36769.

sec. 146[2]), the charges against petitioners would no longer, so to speak, have a

SO ORDERED.

leg to stand on. Petitioners cannot be accused of bad faith and partiality there being

EN BANC G.R. No. L-13744

November 29, 1918

JOSE LINO LUNA, petitioner-appellant, vs. EULOGIO RODRIGUEZ, respondent-appellant; SERVANDO DE LOS ANGELES, respondent. Ramon

Diokno

and

Agapito

Ygnacio

for

petitioner.

Sumulong & Estrada for respondent. JOHNSON, J.: It appears from the record that an election for the office of governor of the Province of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and Servando de los Angeles were candidates for said office. The election was closed, the votes cast in the various municipalities were counted, and a return was made by the inspectors of said municipalities to the provincial board of canvassers, who, after a canvass of said returns, proclaimed the following result: (a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was duly elected governor of said province. Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon said protest issue was joined, hearing was had and a decision was rendered which was, on appeal, set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new

trial was had at which the Honorable William E. McMahon, judge, presided. Addi-

2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the provisions

tional evidence was adduced. After a consideration of all of the facts and the evi-

with reference to the time of opening and closing the polls mandatory? It is admitted

dence adduced at both trials, Judge McMahon reached the conclusion that the ballots

in the present case that the polls were not closed at 6 p.m. The record shows that

cast for the various candidates were as indicated in the returns of the inspectors of

at 6 p.m. a large number of voters had not yet been able to vote and that, for that

the various municipalities except those in the municipality of Taytay and Binangonan.

reason, an agreement was made between some of the candidates for office who

In the municipality of Taytay, Judge McMahon found from the evidence that 50 bal-

were present and the board of inspectors, to the effect that the polls should be kept

lots cast for Eulogio Rodriguez should not have been counted for him, and ordered

open in order that such electors might vote. No objection whatever to that agree-

that number of votes deducted from his total. In the municipality of Binangonan,

ment was made by any person at that time.

Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m.,

One of the reasons why all of the voters of the municipality had not voted before 6

and that a large number of persons voted after that time, and directed that the total

p.m. was that the board of inspectors failed to have the list of voters properly pre-

vote of Eulogio Rodriguez should be reduced by the number of such votes, without

pared at 7 a.m., and therefore but few of the voters were able to vote before eleven

ascertaining how many had been cast for Rodriguez and how many for Luna. By

or eleven-thirty in the morning. That failure, on the part of the board of inspectors,

deducting the said votes in the municipality of Taytay and those cast after six o'clock

made it impossible for many of the voters of the municipality of Binangonan to vote

p.m. in the municipality of Binangonan, Judge McMahon concluded that Jose Lino

before the regular time for the closing of the polls.

Luna had received a plurality of the legal votes cast at said election and ordered the

Shall the ballot of an innocent voter, who is prevented, through no fault of his, from

provincial board of canvassers to correct its canvass accordingly. From that conclu-

casting the same before 6 p.m. be annulled for the simple reason that the polls were

sion both parties to the contest appealed to this court and made several assignments

kept open, after the hour designated by the law, for the purpose of giving such voter

of error.

an opportunity to vote?

Considering all of said assignments of error, we find that they present, in fact, but

Experience and observation has taught legislatures and courts that, at the time of a

three questions:

hotly contested election, the partisan spirit of ingenious and unscrupulous politicians

(1) What is the effect of holding the polls open after the hour fixed for closing the

will lead them beyond the limits of honesty and decency and by the use of bribery,

election?

fraud and intimidation, despoil the purity of the ballot and defeat the will of the

(2) What is the effect of assistance rendered by the inspectors of the election to

people at the polls. Such experience has led the legislatures to adopt very stringent

incapacitated persons, without first requiring of such persons an oath to the effect

rules for the purpose of protecting the voter in the manner of preparing and casting

that they are incapacitated to prepare their own ballots?

his ballot to guard the purity of elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.)

(3) What is the effect of a failure on the part of the authorities to provide proper

The infinite ingenuity of violent partisan spirit in evading the rules and regulation of

voting booths?

elections and the use of bribery, fraud and intimidation has made necessary the

With reference to the first question, the law provides that "at all the elections held

establishment of elaborate and rigid rules and regulations for the conduct of elec-

under the provisions of this Act the polls shall be open from seven o'clock in the

tions. The very elaborateness of these rules has resulted in their frequent violation

morning until six o'clock in the afternoon, during which period not more than one

and the reports of the courts are replete with cases in which the result of an election

member of the board of inspectors shall be absent at one time, and then for not to

has been attacked on the ground that some provision of the law has not been com-

exceed twenty minutes at one time." (Sec. 21 of Act No. 1582; sec. 11 of Act No.

plied with. Presumably, all the provisions of the election laws have a purpose and

should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9

participation in the affairs of their government for mere irregularities on the part of

R. C. L., 1091; Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.)

the election officers, for which they are in no way responsible. A different rule would

It has been announced in many decisions that the rules and regulations, for the

make the manner and method of performing a public duty of greater importance

conduct of elections, are mandatory before the election, but when it is sought to

than the duty itself. (Loomis vs. Jackson, 6 W. Va., 613.)

enforce them after the election they are held to be directory only, if that is possible,

The errors and irregularities which warrant the rejection of ballots and the annul-

especially where, if they are held to be mandatory, innocent voters will be deprived

ment of an election and thus deprive lawful voters of their legal right to vote, should

of their votes without any fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90

be such as to fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec.,

Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.)

451.) It has been held that even great irregularities on the part of election officers

In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the

will not of necessity vitiate an election, where no fraud is committed or attempted,

Election Law does not provide that a departure from a prescribed form will be fatal

or no illegal vote was polled was no legal voter was deprived of his vote. (Morris vs.

and such departure has been due to an honest mistake or misrepresentation of the

Vanlaningham, 11 Kan., 269.)

Election Law, and such departure has not been used as a means for fraudulent

No complaint is made that any fraud was committed nor that any person voted who

practices and it is clear that there has been a free and honest expression of the

had no right to vote, by reason of the fact that the polls were kept open after the

popular will, the law will be held to be directory and such departure will be consid-

hour fixed by the law. It is admitted that the polls were kept open after the hour, by

ered a harmless irregularity. However, the irregularities may be so numerous as not

the consent of all parties concerned, for the reasons and purposes above indicated.

to be attributed to ignorance or honest mistake, but to a design to defeat the will of

In view of such facts, should the vote of the innocent voter be annulled and he

the voters or to such careless disregard of the law as to amount not only to laches

thereby deprived of his participation in the affairs of the government when he was

but to fraudulent intent. In such cases, the election officers should be punished, the

guilty of no illegal act? If the inspectors may, for one reason or another, prevent the

election should be declared null and a new election held.

opening of the polls or delay the commencement of the voting until 11 o'clock in the

It has been held, therefore, very generally, that the provisions of a statute as to the

morning and then close the polls in the evening so as to prevent all those who desire

manner of conducting the details of an election are not mandatory, but directory

to vote from voting, without incurring criminal liability for a violation of the election

merely, and irregularities, in conducting an election and counting the votes, not pro-

laws, the same motives will induce them to delay the opening of the polls until later

ceeding from any wrongful intent and which deprives no legal voter of his vote, will

and thus prevent any to vote except those whom they desire.

not vitiate an election or justify the rejection of the entire votes of a precinct. (Beh-

The polls should be opened and closed in strict accord with the provisions of the

rensmeyer vs. Kreitz, 135 Ill., 591; Hankey vs. Bowman, 82 Minn., 328; Sprague vs.

law. Voters who do not appear and offer to vote within the hours designated by the

Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann., 610.)

law should not be permitted to vote after the time for closing the polls has arrived.

The purpose of an election is to give the voters a direct participation in the affairs

Upon the other hand, if the voter is prevented, during the voting hours, from voting,

of their government, either in determining who shall be their public officials or in

and is not permitted to vote by reason of the failure of the inspectors to do their

deciding some question of public interest; and for that purpose all of the legal voters

duty, then, certainly, in the absence of some fraud, neither such votes nor the entire

should be permitted, unhampered and unmolested, to cast their ballot. When that

vote of the precinct should be annulled simply because some votes were cast after

is done and no frauds have been committed, the ballots should be counted and the

the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell, 121 Cal.,

election should not be declared null. Innocent voters should not be deprived of their

478; Pickett vs. Russell, 42 Fla., 116.)

The decisions in the various States of the United States are not uniform upon the

the election for the reason that the inspectors failed to provide the means for voting

effect of a failure to open and close polls at the time specified by the law. In some

at the time fixed for opening the polls in the morning.

States such a provision has been held to be mandatory, in others directory. The

We are firmly of the opinion that instead of depriving the innocent voters of their

decisions seem to be based upon the language of the particular statutes discussed.

right to participate in the affairs of their government for irregularities committed by

We are not inclined to the belief that the legislature intended that a failure to comply

the election inspectors, the latter should be proceeded against in a criminal action

with the law in this jurisdiction should render the entire election void, nor nullify the

for failure, on their part, to comply with the law and be punished in accordance with

votes cast after the period mentioned in the law, unless the polls were kept open

section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act

after the hour for the purpose of permitting some fraud to be committed, or for the

No. 2711.

purpose of permitting some person to vote who had not appeared during the regular

The various and numerous provisions of the Election Law are adopted to assist the

voting hours.

voters in their participation in the affairs of the government, and not to defeat that

The section of the law which we are discussing provides that 'not more than one

object. When the voters have honestly cast their ballots, the same should not be

member of the board of inspectors shall be absent at one time and then for not to

nullified simply because the officers appointed, under the law to direct the election

exceed twenty minutes at one time." Suppose that the evidence showed that two of

and guard the purity of elections, have not done their duty. The law provides a

the inspectors were absent at one time and for a period longer than twenty minutes,

remedy, by criminal action, against them. They should be prosecuted, and the will

would the courts be justified in holding that the entire election was void, in the

of the honest voter, as expressed through his ballot, should be protected and up-

absence of fraud, for the reason? There is little justification for holding that one

held.lawphi1.net

provision of said section is mandatory and the other directory.

It may be noted in this relation that, under the law, the polls are kept open from 7

Our conclusion upon the first question, in view of the foregoing, is that in the present

a.m. until 6 p.m. or, for a period of eleven hours only. In the municipality of Binango-

case there seems to be no justification, under the facts, there being no fraud com-

nan the record shows that there were 375 analfabetos (illiterate persons) and 164

mitted, for annulling the votes of innocent voters who were permitted by the election

other voters. The law requires an analfabeto to take an oath and that the oath shall

inspectors to cast their votes in a legal manner after the regular hour for closing the

be filed. Naturally the inspectors require some time in (a) ascertaining whether or

polls. In this conclusion, however, we do not desire to be understood to have decided

not the voter is in fact an analfabeto; (b) in administering, preparing, signing and

that in no case should the courts not annul and set aside an election, where fraud is

filing the oath. Suppose one minute only is allowed for that work. Then two inspec-

clearly proved, for a violation of the section under discussion. When the polls are

tors must accompany such a voter to the booth, there assist him in preparing his

kept open after the hour prescribed by the law for the purpose of defeating the will

ballot and then return to their position occupied by them as inspectors. We do not

of the people, such a violation of the law should result in annulling and setting aside

think that work could be accomplished in less than another minute and it would more

the election of that precinct. No such facts exist in the present case. It is true, per-

than likely occupy nearer two minutes. But admitting that it could be accomplished

haps, that a number of the votes cast after the hour for closing the polls were suffi-

in one minute, we have, at least, two minutes occupied by two inspectors for each

cient to change the result of the election, but the result would have been the same

analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or

had those same voters been permitted to vote, except for the negligence of the

12 ½ hours. If the inspectors had strictly complied with the law, not all of the

inspectors, during the regular hours for voting. There seems to be no more reason

analfabetos of said municipality could have voted in the eleven hours provided by

for annulling the votes cast, after the hour for closing the election, than for annulling

the law, not to say anything of the time necessarily occupied with the 164 other

voters of the municipality who would, at least, occupy one minute each of the time

(c) When said oath is taken, then two of the inspectors, each of whom shall belong

of the inspectors, or nearly 2 1/2 hours more. With reference to this particular ques-

to different political party, may assist him in the preparation of his ballot.

tion of the time necessary for each analfabeto to vote, some of the judges have

In view of said conditions, what shall be the effect of a failure to comply therewith?

estimated that it would take, at least, five minutes of the time of the inspectors for

Suppose, for example, that the voter is incapacitated; that the board of inspectors

each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.)

are fully aware of that fact; that they failed to require of him the oath; that they

From the foregoing, it was practically an impossibility for all of the voters of said

failed to keep on file the oath taken, or that one inspector only assisted said voter

municipality to have voted in the eleven hours prescribed by the law even though

in the preparation of his ballot, or that two assisted him which belonged to the same

the polls had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above

party, shall the ballot of such an incapacitated person be rejected? Shall all of the

time is computed upon the theory that no time whatever is lost, that the voters

votes of the precinct be nullified because of the failure of the inspectors to comply

arrive one immediately after another and that no time is lost waiting for the arrival

strictly with the letter of the law?

of the voters.

We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that

With reference to the second question above presented, the law provides that:

the ballots of incapacitated persons who voted without taking the oath or were as-

A voter otherwise qualified who declares that he can not write, or that from blindness

sisted by one inspector alone, or by two belonging to the same party, should not be

or other physical disability he is unable to prepare his ballot, may make an oath to

counted if such ballots could be identified. We further held that, in the absence of

the effect that he is so disabled and the nature of his disability and that he desires

fraud, all of the ballots of the precinct should not be invalidated by the mere fact

the inspectors to assist him in the preparation of such ballot. The board shall keep

that the inspectors did not comply with their duty. Innocent voters should not be

a record of all such oaths taken and file the same with the municipal secretary with

deprived of their participation in an election for a violation of the law for which they

the other records of the board after the election. Two of the inspectors, each of

were in no way responsible and which they could not prevent.lawphil.net

whom shall belong to a different political party, shall ascertain the wishes of the

The incapacitated persons mentioned in said section above noted are usually per-

voter, and one of them shall prepare the ballot of the voter in proper form according

sons who are unable to acquaint themselves with the provisions of the law. They

to his wishes, in the presence of the other inspector, and out of view of any other

are, therefore, absolutely dependent upon the advice and counsel of others. Gener-

person. The information this obtained shall be regarded as a privileged communica-

ally, they have no idea whatever as to the form and requirements in casting their

tion. (Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No.

ballots. Their ignorance, however, does not relieve them from their responsibility

2711.)

under the law, nor from the effect of their failure to comply therewith. (Manalo vs.

Said quoted section provides the method by which a person who cannot prepare his

Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15,

ballot may be assisted. The conditions are:

1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.)

(a) That he must make an oath to the effect that he is disabled and the nature of

The law intended that those votes only who are incapacitated in some way should

his disability together with the fact that he desires the inspectors to assist him in the

be assisted. To insure a compliance with the law an oath of incapacity is required.

preparation of his ballot;

To prove that only such persons have received assistance, the election board is re-

(b) That a record of said oath shall be filed with the municipal secretary with the

quired to keep a record of such oath. To guarantee that such voters should not be

other records of the board of inspectors after the election; and

imposed upon, the law wisely provided that two inspectors of different political faith should assist them. Upon the other hand, if the inspectors have failed or declined to

perform a duty or obligation imposed upon them by the Election Law, they may be

of inspectors does not prepare the voting booth in exactly the form prescribed by

punished.

law, what shall be the effect? Support, the example, that they construct a booth less

The record shows that in many of the municipalities of the Province of Rizal, during

than one meter square as is provided by the law but yet sufficiently large to enable

the election in question, a great many incapacitated persons voted without taking

the voter to enter and to prepare his ballot in secrecy; or suppose that the door

the oath required and were assisted by one inspector only in the preparation of their

swinging outward to the booth shall extend to the floor instead of within fifty centi-

ballots. But, in view of the fact that such ballots have not been identified they cannot

meters of the floor; or suppose that the shelf upon which the voter shall prepare his

be rejected. The voter cannot be punished. The remedy is by a criminal action

ballot shall be less than thirty centimeters wide, shall the entire election be declared

against the inspectors for a failure to comply with the law. (Section 29, Act No. 1582;

null and void for such failures when it is admitted and proved, beyond question, that

section 2632, Act No. 2657; section 2639, Act No. 2711.)

even with such defects in the fulfillment of the requirements of the election law they

Said section (2632) provides, among other things, that any member of a board of

were in fact constructed in a manner which provided the voter a complete oppor-

registration, or board of inspectors, or board of canvassers who willfully declines or

tunity to prepare his ballot in absolute secrecy? While there is no provision in the

fails to perform any duty or obligation imposed by the Election Law, shall be pun-

law, relating to the construction of booths, they shall be constructed in such manner

ished by imprisonment for not less than one month nor more than one year, or by

as to afford the voter an opportunity to prepare his ballot in secret, that must be the

a fine of not less than P200 nor more than P500 or both.

primary and ultimate object of having the booths constructed in the manner indi-

With reference to the third question above indicated, relating to what is the effect

cated.

of a failure on the part of the authorities to provide proper voting booths, it may be

When we held that the law requiring the preparation of the booths in a particular

said that we have held in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) that

manner was mandatory, we did not mean to hold that unless they were prepared in

the requirements of the Election Law providing for the location of polling stations

exact conformity with the law, that the election would be nullified. We simply held

and the construction of booths and guard rails for the latter may be departed from

that if they were not constructed in a manner which afforded the voters an oppor-

in some particulars and yet preserve, in substantial form, the secrecy which the law

tunity to prepare their ballots in secret, the election would be declared null and void

requires. But the failure to provide doors and guard rails for the booths and the

on that account. If, however, upon the other hand, the booths were so constructed,

placing of the writing shelf so that it faces the side instead of the rear of the booths

even though not in strict accord with the provisions of the law, as to afford each

are, combined, a fatal disregard of the law, inasmuch as such an arrangement does

voter an opportunity to prepare his ballot in secret, the election should not be de-

not offer, even in substantial form, the secrecy and seclusion which, according to

clared null and void. Secrecy is the object of the booth. An opportunity to prepare

the purpose and spirit of the Election Law, is its most mandatory requirement.

his ballot in private is the purpose of the provision. When the booth affords that

Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section

protection, the purpose of the law is fulfilled. To hold otherwise — to establish a

415 of Act 2711, provides that there shall be in each polling place, during each

different rule — would make the manner of performing a public duty more important

election, a sufficient number of voting booths, not less than one for every fifty voters,

than the performance of the duty itself.

in the election precinct. Said section further provides how such voting booths, not

In the present case, while there is some conflict in the evidence, and while the proof

less than one every fifty voters, in the election precinct. Said section further provides

clearly shows that the booths were not constructed in strict accordance with the

how such voting booths shall be constructed. The purpose of said provisions is to

provisions of the law, we are of the opinion that a large preponderance of the evi-

furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board

dence shows that the booths were constructed (defectively perhaps) in a manner

which afforded each voter an opportunity to prepare his ballot in absolute secrecy.

(1) That the total votes cast in the municipality of Binangonan should be counted

That being true, we find no reason for changing or modifying the conclusion of the

for the respective candidates; that for the special reason given, the board of inspec-

lower court.

tors was justified in keeping the polls open after the hour for closing. But this con-

The defendant-appellant alleges, and attempts to establish the fact, that in the mu-

clusion must not be interpreted to mean that under other circumstances and other

nicipality of San Felipe Nery many irregularities were committed which should inval-

conditions, where the polls are kept open after the hour for fraudulent purposes,

idate the election. For example, he alleges the different columns of the polling list

that such act on the part of the inspectors might not nullify the entire election (Gar-

were not properly filled. Even granting that fact, the voter was in no way responsible.

diner vs. Romulo, 26 Phil. Rep., 521);

The voter not being responsible, his ballot should not be nullified on that account.

(2) That while it is irregular for the board of inspectors to permit incapacitated voters

Filling the different columns of the polling list is a duty imposed upon the election

to vote without taking the oath and for one inspector only to assist such voters, yet

officers. If they fail to perform their duty they are responsible; and as we have

the ballots of the innocent voters should not be nullified on that account; that the

frequently said, the ballots of innocent voters should not be nullified for a failure on

ballots of such persons only should be annulled when identified;

the part of election officers to perform their duty in accordance with the provisions

(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared

of the law. The remedy is a criminal action against the inspectors if they have vio-

in a manner and form which permitted the voter to prepare his ballot in absolute

lated the law and not to nullify the votes of innocent voters.

secrecy, the vote of that municipality should not be nullified; and

The defendant-appellant further alleges that in the municipality of San Felipe Nery,

(4) That the judgment of the lower court reducing the total vote of the defendant-

a number of voters voted who were not residents of said municipality. That question

appellant by fifty identified fraudulent ballots counted for him, in the municipality of

was presented to the court below, and upon a full consideration he refused to nullify

Taytay, should be affirmed.

the election in said municipality upon the grounds alleged. While it is true that the

As a result of the count of the ballots, cast in the various municipalities by the pro-

proof shows that some grave irregularities were committed by the board of inspec-

vincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna

tors, we are not persuaded that the evidence is sufficient to justify this court in

received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando

nullifying the entire vote of said municipality. In view of that conclusion, we deem it

de los Angeles did not protest the election. From all of the foregoing, the total votes

unnecessary to discuss the other allegations of the defendant-appellant with refer-

of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only,

ence to the striking out of certain allegations in his answer.

or a clear majority of 114 votes.

The lower court, after hearing the evidence and after examining the ballots cast in

Therefore, with the modification herein indicated, the judgment of the lower court

the municipality of Taytay, found that 50 ballots which had been counted for the

is affirmed as modified, and it is hereby ordered and decreed that the record be

defendant-appellant should not be counted for him and ordered that the total vote

immediately returned to the lower court with direction that a judgment be entered

of the defendant-appellant should be reduced by that number. The defendant-ap-

directing and ordering the provincial board of inspectors to amend its count accord-

pellant in fact admits that the said 50 votes should be deducted from his total vote.

ingly.

In view of that admission of the defendant-appellant, we deem it unnecessary to

It is so ordered, without any finding as to costs.

discuss the reasons therefor. Upon the various errors assigned, our conclusions are:

vs. EL JUEZ DEL JUZGADO DEL PRIMERA INSTANCIA DE BATAAN, recurrido. Sres.

Hernandez

y

Laquian

en

representacion

del

recurrrente.

El Juez recurrido en su propia representacion. PABLO, J.: El recurrente es acusado en la causa criminal No. 4307 del Juzgado de Primera Instancia de Bataan por el delito de asesinato. En mayo 20, 1946 fue informado de la querella y se declaro no culpable. Los testigos, segun aquella, eran Wenceslao Cruz, Conrado Manalac y otros. En junio 6, dia designado para la vista, el Fiscal Provincial en vez de aducir sus pruebas presento una querella enmendada incluyendo como acusados a los testigos nombrados en la querella, Wenceslao Cruz y conrado Mañalac. En esta segunda querella se alego que entre el recurrente y sus dos co-acusados hubo conspiracion, confederacion y ayuda mutua cometer el delito. Admitida por el juzgado la querella en cuanto a los acusados Conrado Manalac y Wenceslao Cruz para ser utilizados como testigos de la acusacion, alegando las cinco condiciones que require el articulo 9, Regla 115. A esta peticion accedio el Juez en su orden de 6 de junio de 1946. En junio 14 el recurrente presento el aviso de apelacion contra dicha orden, y fue denegada el 19 del mismo mes. En junio 26 el recurrente presento una mocion de reconsideracion que fue denegada en 11 de julio. Alegando estos hechos, el recurrente presento su peticion original de certiorari pidiendo que sean anuladas por este Tribunal las ordenes de 6 de junio y 11 de Julio de 1946 del Juzgado de Primera Instancia de Bataan. El recurrente alega que si no se diese curso a su citada apelacion se causaria irreparable dano a sus derechos sustanciales porque no tiene otro remedio facil, sencillo y adecuado. En caso de condena, el acusado puede apelar y en el juzgado ad quem puede discutir todos los errores cometidos por el juzgado inferior. Es el remedio ordinario que concede la legislacion vigente. EN BANC G.R. No. L-781

El recurrente alega que la orden del juez de 11 de julio denegando la mocion de November 29, 1946

CEFERINO M. REGALA, recurrente,

reconsideracion es nula y de ningun valor porque dicho juez obro sin jurisdiccion, pues su nombramiento no ha sido aprobado por la Comision de Nombramientos,

segun publico un periodico de la misma fecha. No consta en autos que el juez haya

error, si lo es en realidad, puede ser corregido en apelacion,despues de dictada

tenido conocimiento de tal desaprobacion antes de dictar su orden, impugnada de

sentencia definitiva en primera instancia, y no en una accion de certiorari.

ilegal. Un juez que desempana su cargo antes de enterarse de la desaprobacion de

Solamente procede el remedio de certiorari cuando un tribunal, en el ejecucion de

su nombramiento es un juez de facto. Todas sus actuaciones oficiales, como juez de

sus funciones judiciales, haya actuado sin jurisdiccion o con exceso de ella o con

facto, son tan validas para todos los fines legales y para toda clase de asuntos, como

grave abuso de discrecion y que, en la tramitacion ordinaria, no tiene el recurrente

las de un juez dejure. (Tayko contra Capistrano, 53 Jur. Fil., 923.)

el remedio sencillo y expedito de apelacion (Regla 67, articulo 1). Si por cada error

El recurrente y los disidentes arguyen que el juez, al permitir la inclusion de dos

cometido por un juzgado de certiorari, los asuntos serian interminables.

acusados y la adicion de las palabras: "by conspiring, confederating and helping one

Se deniga la solicitud con las costas contra el recurrente.

another" en la querella enmendada, abuso de su discrecion con infraccion del ar-

Moran, Pres., Paras, Bengzon y Padilla, MM., estan conformes.

ticulo 13, Regla 106 porque que esa enmienda sea tal. En la primera querella se acusa al recurrente de autor y en la enmemdada decoautor, pero su responsabilidad

Separate Opinions

es la misma en ambas. El cambio solo se refiere a la forma de ejecucion del delito;

FERIA, J., concurring:

pero no a la substancia del delito mismo. La forma de ejecucion es mas bien materia

I concur in the result for the following reasons:

de pruebas y no de alegaciones, y los detalles alegados en la querella enmendada

According to section 1, Rule 67, certiorari lies when a tribunal or officer exercising

pudieron haberse probado bajo la querella original.

judicial functions has acted without or in excess of its jurisdiction, or with grave

Los solicitantes en este expendiente de certiorari, acusados en una querella por ase-

abuse of discretion, and there is no appeal nor any plain, speedy, and adequate

sinato, alegan que el juzgado se excedio de su jurisdiccion y abuso de ella al permitir

remedy in the ordinary course of law.

la enmienda de la querella. En la querella original se algaba que Bruno Arevalo iba

There is no doubt that appeal does not lie against an order of a court admitting or

armado de cortaplumas y Cecilio Arevalo de revolver. En el querella enmendada,

denying the amendment of a complaint or information, because such order is inci-

que fue admitada, se alega que Bruno Arevalo era el que llevaba el revolver y Cecilio

dental or interlocutory and not final in character, that is, it does nor put an end to

Arevalo el cortaplumas.

the ordinary proceedings of the case in court. Interlocutory or incidental order may

En nuestra opinion, el juzgado no abuso de su discrecion. La enmienda de la querella

be impugned as erroneous in the appellate court, when appeal is taken from the

era meramente de forma. No afecta ni altera la naturaleza del delito,pues, sea Bruno

judgment or order of the lower court which is final in character.

o Cecilio ell que haya causado la herida mortal, el delito serial el mismo. Tampoco

The question to determine, therefore, is whether or not the respondent judge acted

afecta a la extension de la responsibilidad de los solicitantes, toda vez que, alegan-

(a) without or in excess of the court's jurisdiction, or (b) with grave abuse of discre-

dose en el querella que ambos acusados conspiraron y se ayudaron el uno al otro

tion, in allowing the amendment of the information in this case.

para cometer el delito, serian responsables en la misma medida, sea una u otro el

(a) As to the first question, it is well known rule that a court having jurisdiction over

que infirio la herida que produjo la muerte del occiso. Es, por tanto, una enmienda

the offense charged and the territory wherein it was committed, has also jurisdiction

puramente de forma que no altera sustancialmente la querella ni afecta a los dere-

to decide all questions incidental to the criminal proceeding, such as the sufficiency

chos de los acusados (Arevalo y Arevalo contra Nepomuceno, 63 Jur. Fil., 665.)

of a complaint or information, or whether the defendant has been previously con-

Ademas, si el juez actuo con infraccion o no del Reglamento fue a lo mas un error

victed or in jeopardy of being convicted or acquitted of the offense charged, or is

de procedimiento, y no un abuso de discrecion, ni exceso o falta de jurisdiccion. Tal

insane. If the decision or resolution on such questions is not conformity with or

against the law, the court would commit an error, but not exceed its jurisdiction. A

According to the above quoted provisions, after the discretion to allow the amend-

judge would act in excess of the court's jurisdiction if he performs or does an act

ment of an information or complaint in matters of form, but not in matters of sub-

which he has no power or authority to do, in connection with the proceeding over

stance. The court having no power to allow amendment in substance it could not

which the court has jurisdiction. But to decide erroneously a question which it is

have discretion to allow it or not, and hence it could not have acted with grave abuse

within the court's jurisdiction to decide, is not acting beyond or in excess of its juris-

of discretion, which the court did not have. Therefore, the respondent judge has not

diction. To hold otherwise would be to sustain the absurdity that a court acts within

acted with grave abuse of discretion in admitting the amendment, even assuming

its jurisdiction if it decides a case in conformity with the law, and in excess of its

that the amendment is of substance.

jurisdiction of its decision is erroneous or contrary to law.

Wherefore, certiorari does not lie in the present case, and the petition is denied.

From the foregoing, it necessarily follows that the decision or order of the respondent judge allowing the amendment of the information after the defendant petitioner has pleaded would be erroneous if it is an amendment of substance and not of form, but it would not be an act beyond or in excess of the court's jurisdiction, because the court has power or jurisdiction to decide that question. The respondent judge has not, therefore, acted without or in excess of the court's jurisdiction in allowing the amendment of the information, however erroneous that resolution may be. (b) With respect to the second, it goes without saying, for it is of common sense, that if a person has no power to do an act, and therefore no discretion to do or not to do it, it cannot be said that he has acted within, or with grave abuse of, his discretion in doing or not doing it. No one may abuse a thing that he does not have. If the respondent judge has no discretion to act in one way or another, as in the present case, he could not have acted with grave abuse of discretion, for he can not abuse a discretion which does not have. Therefore the question is reduced to whether or not the court has power to allow the amendment in substance of an information after the defendant has pleaded. If it has no power to permit such amendment, it does have discretion to allow it or not because discretion supposes power to do. Section 13, Rule 106 of the Rules of Court, provides: SEC. 13. Amendment. — the information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office. The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988. On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. EN BANC

In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated

G.R. No. 90762

May 20, 1991

that since B.P. 337 has no provision relating to succession in the Office of the Vice-

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,

Governor in case of a temporary vacancy, the appointment of the petitioner as the

vs.

temporary Vice- Governor is not necessary since the Vice-Governor who is tempo-

LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief

rarily performing the functions of the Governor, could concurrently assume the func-

Executive of the Province of Leyte and Head of SANGGUNIANG PANLALA-

tions of both offices.

WIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents.

As a result of the foregoing communications between Tente U. Quintero and Jacinto

Zozimo

T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7,

G.

Alegre

for

petitioner.

The Provincial Attorney for respondents.

1989, issued Resolution No. 505 where it held invalid the appointment of the peti-

RESOLUTION

tioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads:

GUTIERREZ, JR., J.:

WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor

of a particular public office, would depend on the discretion of the appointing au-

is that there is no permanent (sic) nor a vacancy in said office. The Honorable Leo-

thority and the prevailing circumstances in a given area and by taking into consider-

poldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of

ation the best interest of public service.

office to said position.

On the basis of the foregoing and considering that the law is silent in case of tem-

WHEREAS, it is the duty of the members of the Board not only to take cognizance

porary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar

of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar,

situation in the Province of Leyte, where the electoral controversy in the Office of

Jr., but also to uphold the law.

the Governor has not yet been settled, calls for the designation of the Sangguniang

WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the

Member to act as vice-governor temporarily. (Rollo, p. 31)

Honorable Rogelio L. Granados and the Honorable Renato M. Rances.

In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director

RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon

of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July

as Acting Vice-Governor of Leyte. (Rollo, p. 27)

17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E.

The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty.

Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlala-

Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. re-

wigan be modified accordingly. The letter states:

garding the June 22, 1989 opinion.

In view thereof, please correct previous actions made by your office and those of

On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opin-

the Sangguniang Panlalawigan which may have tended to discredit the validity of

ion.1âwphi1 The pertinent portion of the letter reads:

Atty. Aurelio Menzon's designation as acting vice-governor, including the payment

This has reference to your letter dated July 10, 1989, requesting for clarification of

of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32)

our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which

On August 3, 1989, the Regional Director wrote another letter to Acting-Governor

states in substance, that "there is no succession provided for in case of temporary

Petilla, reiterating his earlier request.

vacancy in the office of the vice-governor and that the designation of a temporary

Despite these several letters of request, the Acting Governor and the Sangguniang

vice-governor is not necessary.

Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the

We hold the view that the designation extended by the Secretary of Local Govern-

petitioner the emoluments attached to the Office of Vice-Governor.

ment in favor of one of the Sangguniang Panlalawigan Members of Leyte to tempo-

Thus, on November 12, 1989, the petitioner filed before this Court a petition for

rarily discharge the powers and duties of the vice-governor during the pendency of

certiorari and mandamus. The petition sought the nullification of Resolution No. 505

the electoral controversy in the Office of the Governor, does not contradict the stand

and for the payment of his salary for his services as the acting Vice-Governor of

we have on the matter. The fact that the Sangguniang Panlalawigan member was

Leyte.

temporarily designated to perform the functions of the vice-governor could not be

In the meantime, however, the issue on the governorship of Leyte was settled and

considered that the Sangguniang member succeeds to the office of the latter, for it

Adelina Larrazabal was proclaimed the Governor of the province of Leyte.

is basic that designation is merely an imposition of additional duties to be performed

During the pendency of the petition, more particularly on May 16, 1990, the provin-

by the designee in addition to the official functions attached to his office. Further-

cial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his

more, the necessity of designating an official to temporarily perform the functions

salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.

On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.

Petilla was appointed Acting Governor. In the eyes of the law, the office to which he

On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolu-

was elected was left barren of a legally qualified person to exercise the duties of the

tion requested Governor Larrazabal to direct the petitioner to pay back to the prov-

office of the Vice-Governor.

ince of Leyte all the emoluments and compensation which he received while acting

There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succes-

as the Vice-Governor of Leyte.

sion to the Office of the Governor, continued to simultaneously exercise the duties

On September 21, 1990, the petitioner filed a motion for reconsideration of our res-

of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-

olution. The motion prayed that this Court uphold the petitioner's right to receive

time occupant to discharge them. More so when the vacancy is for an extended

the salary and emoluments attached to the office of the Vice-Governor while he was

period. Precisely, it was Petilla's automatic assumption to the acting Governorship

acting as such.

that resulted in the vacancy in the office of the Vice-Governor. The fact that the

The petitioner interposes the following reason for the allowance of the motion for

Secretary of Local Government was prompted to appoint the petitioner shows the

reconsideration:

need to fill up the position during the period it was vacant. The Department Secre-

THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES

tary had the discretion to ascertain whether or not the Provincial Governor should

RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF

devote all his time to that particular office. Moreover, it is doubtful if the Provincial

GOOD FAITH. SIMPLE JUSTICE AND EQUITY.

Board, unilaterally acting, may revoke an appointment made by a higher authority.

The controversy basically revolves around two issues: 1) Whether or not there was

Disposing the issue of vacancy, we come to the second issue of whether or not the

a vacancy?; and 2) Whether or not the Secretary of Local Government has the au-

Secretary of Local Government had the authority to designate the petitioner.

thority to make temporary appointments?

We hold in the affirmative.

The respondents argue that there exists no vacancy in the Office of the Vice-Gover-

The Local Government Code is silent on the mode of succession in the event of a

nor which requires the appointment of the petitioner. They further allege that if

temporary vacancy in the Office of the Vice-Governor. However, the silence of the

indeed there was a need to appoint an acting Vice-Governor, the power to appoint

law must not be understood to convey that a remedy in law is wanting.

is net vested in the Secretary of Local Government. Absent any provision in the Local

The circumstances of the case reveal that there is indeed a necessity for the ap-

Government Code on the mode of succession in case of a temporary vacancy in the

pointment of an acting Vice-Governor. For about two years after the governatorial

Office of the Vice-Governor, they claim that this constitutes an internal problem of

elections, there had been no de jure permanent Governor for the province of Leyte,

the Sangguniang Panlalawigan and was thus for it solely to resolve.

Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a

The arguments are of doubtful validity.

pending election case before the Commission on Elections.

The law on Public Officers is clear on the matter. There is no vacancy whenever the

The two-year interregnum which would result from the respondents' view of the law

office is occupied by a legally qualified incumbent. A sensu contrario, there is a

is disfavored as it would cause disruptions and delays in the delivery of basic services

vacancy when there is no person lawfully authorized to assume and exercise at pre-

to the people and in the proper management of the affairs of the local government

sent the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A

of Leyte. Definitely, it is incomprehensible that to leave the situation without afford-

Treatise on the Law on Public Offices and Officers, at p. 61)

ing any remedy was ever intended by the Local Government Code.

Applying the definition of vacancy to this case, it can be readily seen that the office

Under the circumstances of this case and considering the silence of the Local Gov-

of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo

ernment Code, the Court rules that, in order to obviate the dilemma resulting from

an interregnum created by the vacancy, the President, acting through her alter ego,

to handle provincial problems and to serve as the buffer in case something might

the Secretary of Local Government, may remedy the situation. We declare valid the

happen to the acting Governor becomes unquestionable. We do not have to dwell

temporary appointment extended to the petitioner to act as the Vice-Governor. The

ourselves into the fact that nothing happened to acting Governor Petilla during the

exigencies of public service demanded nothing less than the immediate appointment

two-year period. The contingency of having simultaneous vacancies in both offices

of an acting Vice-Governor.

cannot just be set aside. It was best for Leyte to have a full-time Governor and an

The records show that it was primarily for this contingency that Undersecretary

acting Vice-Governor. Service to the public is the primary concern of those in the

Jacinto Rubillar corrected and reconsidered his previous position and acknowledged

government. It is a continuous duty unbridled by any political considerations.

the need for an acting Vice-Governor.

The appointment of the petitioner, moreover, is in full accord with the intent behind

It may be noted that under Commonwealth Act No. 588 and the Revised Adminis-

the Local Government Code. There is no question that Section 49 in connection with

trative Code of 1987, the President is empowered to make temporary appointments

Section 52 of the Local Government Code shows clearly the intent to provide for

in certain public offices, in case of any vacancy that may occur. Albeit both laws deal

continuity in the performance of the duties of the Vice-Governor.

only with the filling of vacancies in appointive positions. However, in the absence of

The Local Government Code provides for the mode of succession in case of a per-

any contrary provision in the Local Government Code and in the best interest of

manent vacancy, viz:

public service, we see no cogent reason why the procedure thus outlined by the two

Section 49:

laws may not be similarly applied in the present case. The respondents contend that

In case a permanent vacancy arises when a Vice-Governor assumes the Office of

the provincial board is the correct appointing power. This argument has no merit.

the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from

As between the President who has supervision over local governments as provided

office, voluntary resigns or is otherwise permanently incapacitated to discharge the

by law and the members of the board who are junior to the vice-governor, we have

functions of his office the sangguniang panlalawigan . . . member who obtained the

no problem ruling in favor of the President, until the law provides otherwise.

highest number of votes in the election immediately preceding, . . . shall assume the

A vacancy creates an anomalous situation and finds no approbation under the law

office for the unexpired term of the Vice-Governor. . . .

for it deprives the constituents of their right of representation and governance in

By virtue of the surroundings circumstance of this case, the mode of succession

their own local government.

provided for permanent vacancies may likewise be observed in case of a temporary

In a republican form of government, the majority rules through their chosen few,

vacancy in the same office. In this case, there was a need to fill the vacancy. The

and if one of them is incapacitated or absent, etc., the management of governmental

petitioner is himself the member of the Sangguniang Panlalawigan who obtained the

affairs to that extent, may be hampered. Necessarily, there will be a consequent

highest number of votes. The Department Secretary acted correctly in extending the

delay in the delivery of basic services to the people of Leyte if the Governor or the

temporary appointment.

Vice-Governor is missing.

In view of the foregoing, the petitioner's right to be paid the salary attached to the

Whether or not the absence of a Vice-Governor would main or prejudice the province

Office of the Vice Governor is indubitable. The compensation, however, to be remu-

of Leyte, is for higher officials to decide or, in proper cases, for the judiciary to

nerated to the petitioner, following the example in Commonwealth Act No. 588 and

adjudicate. As shown in this case where for about two years there was only an acting

the Revised Administrative Code, and pursuant to the proscription against double

Governor steering the leadership of the province of Leyte, the urgency of filling the

compensation must only be such additional compensation as, with his existing salary,

vacancy in the Office of the Vice-Governor to free the hands of the acting Governor

shall not exceed the salary authorized by law for the Office of the Vice-Governor.

And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]) WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him. SO ORDERED.

ministration by then Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308.00. However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed was only the amount of P8,400.00 which corresponds to the difference in the allowances attached to the designation and the position occupied by the appellant. The disallowances was premised on the following reasons: 1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance. EN BANC

2. The designation is temporary in nature and does not amount to the issuance of an appointment as could entitle the designee to receive the salary of the position to

G.R. No. 122197 June 26, 1998

which he is designated (Opinion of the Director, Office for Legal Affairs, Civil Service

ZOSIMO M. DIMAANDAL, petitioner,

Commission dated January 25, 1994).

vs.

On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting re-

COMMISSION ON AUDIT, respondent.

consideration of the subject disallowance, interposing the following reasons: 1. That Section 2077 of the Revised Administrative Code is applicable in the instant

MARTINEZ, J.:

case as the same provides that the Governor General or the officer having the power

This petition for certiorari seeks the reversal of the decision of the Commission on 1

to fill-up a temporary absence or disability in the provincial office has the power to

Audit dated September 7, 1995, the dispositive portion of which reads, to wit:

order or authorize payment of compensation to any government officer or employee

Foregoing premises considered, the instant appeal cannot be given due course. Ac-

designated or appointed temporarily to fill the place;

cordingly, the disallowance in question in the total amount of P52,908.00 is hereby

2. That the budget containing an appropriation for the position of Assistant Provincial

affirmed. Considering that the claim for the RATA differential in the amount of

Treasurer for Administration was already approved by the Provincial Board; and

P8,400.00 is devoid of any legal basis, the same is also disallowed. Hence, appellant

3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer

Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential

for Administration was no longer performing the duties and functions of Supply Of-

in the amount of P61,308.00 he had received from the Provincial Government of

ficer III.

Batangas.

The Provincial Auditor, however, denied the request for reconsideration. Appellant

2

The undisputed facts:

was required to refund the amount of P52,908.00 which was disallowed.

On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position

Petitioner appealed to the respondent Commission on Audit which sustained the

of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Ad-

stand of the Provincial Auditor of Batangas as valid and proper. The respondent

Commission was of the view that the petitioner was merely designated as an Assis-

and in the absence of authority of the Governor to authorize the payment of the

tant Provincial Treasurer for Administration in addition to his regular duties. As such,

additional salary and RATA without the appropriate resolution from the Sangguniang

he is not entitled to receive an additional salary. The Commission further opined that

Panlalawigan does not make the ruling on de facto officers applicable in this case.

petitioner was likewise not entitled to receive the difference in RATA provided for

We find the petition to be without merit.

under the Local Budget Circular issued by the Department of Budget and Manage-

We are not persuaded by petitioner's insistence that he could still claim the salary

ment considering that the party designating him to such position is not the "duly

and RATA differential because he actually performed the functions pertaining to the

competent authority," provided for under Section 471 of the Local Government Code.

office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary

Notably, petitioner was appointed as Assistant Provincial Treasurer for Administra-

and benefits attached to it despite the fact that the Governor of Batangas had no

tion by the Secretary of Finance only on July 8, 1994.

authority to designate him to the said position.

Thus, the respondent Commission not only affirmed the disallowance of the amount

The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Gov-

of P52,908.00 but likewise disallowed the claim for the RATA differential in the

ernment Code which mandates that:

amount of P8,400.00, for being devoid of any legal basis. Petitioner was, therefore,

Sec. 471. Assistant Treasurers. — (a) An Assistant treasurer may be appointed by

directed to refund the salary and RATA differential in the amount of P61,308.00.

the Secretary of Finance from a list of at least three (3) ranking eligible recommen-

Hence, this petition.

dees of the governor or mayor, subject to civil service law, rules and regulations.

The issue here is whether or not an employee who is designated in an acting capacity

xxx

is entitled to the difference in salary between his regular position and the higher

In fact, the appointing officer is authorized by law to order the payment of compen-

position to which he is designated.

sation to any government officer or employee designated or appointed to fill such

Petitioner avers that the respondent Commission's decision is "probably not in accordance with applicable decisions of the Supreme Court."

3

He cites the cases of

xxx

xxx

vacant position, as provided under Section 2077 of the Revised Administrative Code which states that:

Cui, et. al. vs. Ortiz, et. al., 4 April 29, 1960; and, Menzon vs. Petilla, May 20, 1991,

Sec. 2077. Compensation for person appointed to temporary service.

5

xxx

which laid down the rule that de facto officers are entitled to salary for services

xxx

xxx

actually rendered. Petitioner contends that he may be considered as a de facto of-

In case of the temporary absence or disability of a provincial officer or in case of a

ficer by reason of services rendered in favor of the Province of Batangas. He then

vacancy in a provincial office, the President of the Philippines or officer having the

posits the view that to disallow his compensation and in the process allow the Prov-

power to fill such position may, in his discretion, order the payment of compensation,

ince of Batangas to keep and enjoy the benefits derived from his services actually

or additional compensation, to any Government officer or employee designated or

rendered would be tantamount to deprivation of property without due process of

appointed temporarily to fill the place, but the total compensation paid shall not

law, and impairment of obligation of contracts duly enshrined in the Constitution.

exceed the salary authorized by law for the position filled.

On the other hand, the respondent Commission, through the Office of the Solicitor

Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint

General, maintains that decisions cited by petitioner do not find application in peti-

nor even designate one temporarily in cases of temporary absence or disability or a

tioner's case. In the case of Menzon, what was extended was an appointment to the

vacancy in a provincial office. That power resides in the President of the Philippines

vacant position of Vice-Governor. Here, what was extended to petitioner was not

or the Secretary of Finance.

appointment but a mere designation. Thus, the nature of petitioner's designation

Necessarily, petitioner's designation as Assistant Provincial Treasurer for Administra-

deprivation of property without due process of law and the non-impairment of obli-

tion by Governor Mayo Being defective, confers no right on the part of petitioner to

gation of contracts clause in the Constitution.

claim the difference in the salaries and allowances attached to the position occupied

The right to the salary of an Assistant Provincial Treasurer is based on the assump-

by him.

tion that the appointment or designation thereof was made in accordance with law.

Moreover, what was extended to petitioner by Governor Mayo was merely a desig-

Considering that petitioner's designation was without color of authority, the right to

nation not an appointment. The respondent Commission clearly pointed out the dif-

the salary or an allowance due from said office never existed. Stated differently, in

ference between an appointment and designation, thus:

the absence of such right, there can be no violation of any constitutional right nor

There is a great difference between an appointment and designation. While an ap-

an impairment of the obligation of contracts clause under the Constitution.

pointment is the selection by the proper authority of an individual who is to exercise

The nature of petitioner's designation and the absence of authority of the Governor

the powers and functions of a given office, designation merely connotes an imposi-

to authorize the payment of the additional salary and RATA without the appropriate

tion of additional duties, usually by law, upon a person already in the public service

resolution from the Sangguniang Panlalawigan does not make him a de facto officer.

by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125).

A de facto officer is defined as one who derives his appointment from one having

Designation is mere imposition of new or additional duties on the officer or employee

colorable authority to appoint, if the office is an appointive office, and whose ap-

to be performed by him in a special manner. It does not entail payment of additional

pointment is valid on its face. It is likewise defined as one who is in possession of

benefits or grant upon the person so designated the right to claim the salary at-

an office, and is discharging its duties under color of authority, by which is meant

tached to the position (COA Decision NO. 95-087 dated February 2, 1995). As such,

authority derived from an appointment, however irregular or informal, so that the

there being no appointment issued, designation does not entitle the officer desig-

incumbent be not a mere volunteer.

nated to receive the salary of the position. For the legal basis of an employee's right

session of an office in the open exercise of its functions under color of an election

to claim the attached thereto is a duly issued and approved appointment to the

or an appointment, even though such election or appointment may be irregular.

position (Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr., Designation).

6

8

Then a de facto officer is one who is in pos-

Petitioner invokes in his favor the ruling in Menzon vs. Petilla,

10

9

that a de facto

officer is entitled to receive the salary for services actually rendered. However, his

This Court has time and again ruled that:

reliance on the Menzon case is misplaced. In Menzon, what was extended was an

Although technically not binding and controlling on the courts, the construction given

appointment to the vacant position of Vice-Governor, in petitioner's case, he was

by the agency or entity charged with the enforcement of a statute should be given

designated. The appointment of Menzon had the color of validity. This Court said:

great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such con-

And finally, even granting that the President, acting through the Secretary of Local

struction, as in the case at bar, has been uniform, and consistent, and has been

Government, possesses no power to appoint the petitioner, at the very least, the

observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167;

petitioner is a de facto officer entitled to compensation. There is no denying that the

Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs,

petitioner assumed the Office of the Vice-Governor under a color of a known ap-

51 Phil.

pointment. As revealed by the records, the petitioner was appointed by no less than

143).

the alter ego of the President, The Secretary of Local Government, after which he

7

We see no justifiable reason to sustain petitioner's argument that non-payment of his salary differential and RATA would be a violation of his constitutional right against

took his oath of office before Senator Alberto Romulo in the Office of Department of

Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.

11

does not apply in petitioner's

case. In Cui, this Court held: Petitioners' appointment on December 1 and 12, 1955 by the then mayor of the municipality were legal and in order, the appointing mayor still in possession of his right to appoint. For such appointment to be complete, the approval of the President of the Philippines is required. The law provides that pending approval of said appointment by the President, the appointee may assume office and receive salary for services actually rendered. Accordingly, therefore, in that duration until the appointment is finally acted upon favorably or unfavorably, the appointees may be considered as "de facto" officers and entitled to salaries for services actually rendered. Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8, 1994. Petitioner's claim that the appointment retro-acts to his assumption of office is not confirmed by the express phraseology of the appointment itself, which states: Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.

12

The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioner's retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered refunded by COA representing the salary and RATA in excess of what was due him in 1993. WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit. SO ORDERED.

exercise supervision over local police force, except in cases of Chief of Police of Chartered cities which is governed by special provisions of law. The selection of appointees shall be made whenever possible from the list of eligibles in the correCui, et al. vs Ortiz, 107 Phil. 1000

sponding city or municipality, if there are any, and in the negative ease, from the general list of eligibles in the province. Pending approval of the appointment by the

PARAS, C.J.:

President, the appointee may assume office and receive salary for services actually

The present appeal originated from a petition for a writ of mandamus to compel

rendered until the appointment is finally acted upon."

respondent mayor to sign the payroll and approve the salaries accruing to petition-

Petitioners' appointments on December 1 and 12, 1955 by the then mayor of the

ers, and to reinstate petitioners to their former positions.

municipality were legal and in order, the appointing power still in possession of his

Petitioners were civil service eligibles appointed by the then Mayor of Ronda, Cebu,

right to appoint. For such appointments to be complete, the approval of the Presi-

Fortunato Villalon, on December 1 and 12, 1955, petitioner Maribao as Chief of Po-

dent of the Philippines is required. The law provides that pending approval of said

lice, and petitioners Cui, Yusores and Beynosa as patrolmen of the said municipality.

appointment by the President, the appointee may assume office and receive salary

On January 16, 1956, the newly elected mayor, above respondent, served notice to

for services actually rendered. Accordingly therefore, in that duration until the ap-

petitioners advising them of the termination of their service. In that very month,

pointment is finally acted upon favorably or unfavorably, the appointees may be

respondent appointed a new Chief of Police and three new policemen to take the

considered as "de facto" officers and entitled to salaries for services actually ren-

place of petitioners. He also sent a telegram to the President of the Philippines with-

dered.

drawing the appointments of petitioners. Petitioners after said date of January 16,

Petitioners' appointments when respondent took office were not complete. Their

1956, continued in the service by reporting to the PC detachment at Damangug,

recall and withdrawal having been based on lack of residence in the municipality

Cebu.

concerned is proper. Respondent cannot be charged with discriminate removal of

The trial court rendered judgment ordering the incumbent mayor, respondent, to

petitioners in view of their incomplete appointment to the office.

approve the payment of petitioners' salaries from January 16, 1956 to July 18, 1956,

It is of record that the office of the President disapproved petitioner Maribao's ap-

but kept silent as to the reinstatement, which the court evidently did not deem

pointment on July 18, 1956. It is in fact liberal construction for this Court (as for the

proper.

lower court) to consider said date of July 18, 1956 as the final disapproval of ap-

Both petitioners and respondents appealed from the aforesaid decision, petitioners

pointments of the other petitioners.

insisting in their reinstatement and accrued salaries until reinstatement; respondents

Wherefore, the decision appealed from is hereby affirmed without costs,. So or-

assigning as error the payment of salaries from January 16 to July 18, 1956.

dered.

Section 14, Ex. Order No. 175 series of 1938 governs the appointments to the police force of the municipality. It says: "14. Hereafter, appointments to and promotion in the municipal, city and provincial police service shall be made in accordance with Civil Service Rules and Regulations by the respective city or municipal mayor or governor, with the approval of the President of the Philippines pending" designation of the Department Head who is to

ROMERO, J.: G.R. No. 103903. September 11, 1992.

Sampayan vs. Daza

MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON,

On February 18, 1992, petitioners, residents of the second Congressional District of

petitioners, vs. RAUL A. DAZA, HON. CAMILO SABIO, as Secretary of the

Northern Samar filed the instant petition for prohibition seeking to disqualify re-

House of Representatives, MR. JOSE MARIA TUANO, as Officer-in-Charge,

spondent Raul Daza, then incumbent congressman of the same congressional dis-

Gen. Services Division of the House of Representatives, MRS. ROSALINDA

trict, from continuing to exercise the functions of his office, on the ground that the

G. MEDINA, as Chief Accountant of the House of Representatives, and the

latter is a greencard holder and a lawful permanent resident of the United States

HON. COMMISSION ON AUDIT, respondents.

since October 16, 1974.

Election Law; Candidates; Qualifications; Jurisdiction.—xxx. [J]urisdiction of this

Petitioners allege that Mr. Daza has not, by any act or declaration, renounced his

case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article

status as permanent resident, thereby violating Section 68 of Batas Pambansa Bilang

VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole

881 (Omnibus Election Code) and Section 18, Article XI of the 1987 Constitution.

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 Tri-

On February 25, 1992, we required respondents to comment. On March 13, 1992, respondents, through the Solicitor General, filed a motion for extension of time to file their comment for a period of thirty days or until April 12, 1992. Reacting to the

bunal within ten (10) days after Daza’s proclamation.

said motion, petitioners on March 30, 1992, manifested their opposition to the 30-

Public Officers; Validity of acts of de facto officers.—xxx. [A]s a de facto public of-

respondent instead be granted only 10 days to file their comment. On May 5, 1992,

ficer, respondent cannot be made to reimburse funds disbursed during his term of

the Court noted the manifestation and opposition.

office because his acts are as valid as those of a de jure officer. Moreover, as a de

day extension of time stating that such extension was excessive and prayed that

facto officer, he is entitled to emoluments for actual services rendered.

On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a

PETITION for prohibition to review the decision of the Commission on Audit.

cent May 11, 1992 elections on the basis of Section 68 of the Omnibus Election Code

The facts are stated in the resolution of the Court. Luis H. Dado for petitioners.

(SPC 92- 084) and that the instant petition is concerned with the unlawful assumption of office by respondent Daza from June 30, 1987 until June 30, 1992.

petition before the COMELEC to disqualify respondent Daza from running in the re-

1 Sevilla, Hechanova, Ballicud & Associates for respondent Raul Daza. On April 10, 1992, respondent Congressman Daza filed his comment denying the R E S O L U T IO N

fact that he is a permanent resident of the United States; that although he was accorded a permanent residency status on October 8, 1980 as evidenced by a letter

order of the District Director, US Immigration and Naturalization Service, Los Ange-

holder, petitioners presented to us a letter from the United States Department of

les, U.S.A., he had long waived his status when he returned to the Philippines on

Justice, Immigration and Naturalization Service

August

12,

1985.

On April 13, 1992, public respondent Camilo Sabio, Secretary

(INS) which reads:

General of the House of Representatives, Mr. Jose Mari Tuaño, as OIC of the General

Geraghty,

Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House of

386

Representatives and Commission on Audit, filed their comment. They contend that

St. Paul, Minn. 55102-1308 SUBJECT:

if indeed Congressman Daza is a greencard holder and a permanent resident of the United States of America, then he should be removed from his position as Congressman. However, they opined that only Congressman Daza can best explain his true and correct status as a greencard holder. Until he files his comment to the petition, petitioners’ prayer for temporary restraining order and/or writ of preliminary injunction should not be granted. Eight (8) days later, respondent Daza, reacting to the petition before the COMELEC (SPC 92-084) and hypothesizing that the case before the COMELEC would become moot should this Court find that his permanent resident status ceased when he was granted a US non-immigrant visa, asked this Court to direct the COMELEC to dismiss SPC No. 92-084. On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition and required the parties to file their respective memoranda. The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code.

O’Loughlin

and

Kenney

N.

Attn:

David

Wasbasha

C.

Hutchinson Street

File No. A20 968 618 Date: Nov. 5, 1991 LOS914732 Daza, Raul A. Your request was received in this office on ________________; please note the paragraph(s) checked below: xxx 10.

xxx [XX]

xxx Other

remarks:

Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on Oct. 16, 1974. As far as we know subject (sic) still has his greencard. No he has not applied for citizenship. Sinerely, (sic) Sgd. District Director Form G-343 (Rev. 8-20-82)N We vote to dismiss the instant prohibition case. First, this case is already moot and

Petitioners insist that Congressman Daza should be disqualified from exercising the

academic for it is evident from the manifestation

functions of his office being a permanent resident alien of the United States at the

filed by petitioners dated April 6, 1992 that they seek to unseat respondent from his

time when he filed his certificate of candidacy for the May 11, 1987 Elections. To

position as Congressman for the duration of his term of office commencing June 30,

buttress their contention, petitioners cite the recent case of

1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains

Caasi

v.

Court

of

In support of their charge that respondent Daza is a greencard

Appeals.

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. ACCORDINGLY, the Court Resolved to DISMISS the instant petition for being MOOT and ACADEMIC. SO ORDERED. Narvasa (C.J.), Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Nocon and Bellosillo, JJ., concur. Gutierrez, Jr., Cruz and Feliciano, JJ., On official leave. Melo and Campos, Jr., JJ., No part. Petition dismissed. Note.—Respondent’s immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines (Caasi vs. Court of Appeals, 191 SCRA 229).

EN BANC G.R. No. 193237 October 9, 2012 DOMINADOR G. JALOSJOS, JR., Petitioner, vs. COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents. x-----------------------x G.R. No. 193536 AGAPITO J. CARDINO, Petitioner, vs. DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents. DECISION CARPIO, J.: These are two special civil actions for certiorari1 questioning the resolutions of the Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11 August 2010 Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his certificate of candidacy on the ground of false material representation. In G.R. No. 193536, Agapito J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which applied the rule on succession under the Local Government Code in filling the vacancy in the Office of the Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of Jalosjos’ certificate of candidacy. The Facts Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor. Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by final judgment for robbery and sentenced to prisión mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been granted probation. Cardino countered that the RTC revoked Jalosjos’ probation in an Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an

Order dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same grounds.4 The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows: As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the penalty of prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of several years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his arrest was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This Certification was the one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against him by Adasa in 2004, docketed as SPA No. 04-235. This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder: The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr., unwarranted benefits and advantage because the subject certification, which was issued by the accused without adequate or official support, was subsequently utilized by the said probationer as basis of the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said Certification was also used by the said probationer and became the basis for the Commission on Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private complainant James Adasa for the disqualification of the probationer from running for re-election as Mayor of Dapitan City in the National and Local Elections of 2004.5 The COMELEC’s Rulings On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’ certificate of candidacy. The COMELEC First Division concluded that

"Jalosjos has indeed committed material misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a criminal case, the sentence of which he has not yet served."6 The COMELEC First Division found that Jalosjos’ certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months and twenty days of prisión correccional as minimum, to four years, two months and one day of prisión mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40(a) of Republic Act No. 7160."7 On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The pertinent portions of the 11 August 2010 Resolution read: With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet served the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well as political rights have been violated. Having been convicted by final judgment, Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to resolve the present petition to its finality, and to oust him from the office he now wrongfully holds. WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit. Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying and discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the provisions of the Local Government Code on succession apply. SO ORDERED.8 Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his petition on 17 September 2010, docketed as G.R. No. 193536. On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237. WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.9 Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was made "in deference with the provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of Zamboanga del Sur in May 2013."13

These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not only Jalosjos’ eligibility to run for public office and the consequences of the cancellation of his certificate of candidacy, but also COMELEC’s constitutional duty to enforce and administer all laws relating to the conduct of elections. The Issues In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2) ruled that Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC decision declaring him eligible for the same position from which he is now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of Procedure. In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution that the provisions of the Local Government Code on succession should apply. This Court’s Ruling The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos’ certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest number of votes for the position of Mayor. The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus Election Code and apply the rule on succession under the Local Government Code. A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material representation which is a ground for a petition under Section 78 of the same Code. Sections 74 and 78 read: Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his

date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the public office.14 If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section 78. A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition under Section 40 of the Local Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read: Section 40, Local Government Code: Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded.

Section 12, Omnibus Election Code: Sec. 12. Disqualifications. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. Section 68, Omnibus Election Code: Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. Revised Penal Code: Art. 27. Reclusion perpetua. — x x x Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty. xxxx Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected. 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification. Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied) The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory penalties of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective office or to be elected to such office." The duration of the temporary absolute disqualification is the same as that of the principal penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special disqualification means that "the offender shall not be permitted to hold any public office during the period of his disqualification," which is perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and commits a false material representation if he states in his certificate of candidacy that he is eligible to so run. In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of perpetual special disqualification: On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime penalized with prisión mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961. But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code, provides: Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of disqualification. The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their durations into one period, states that such duration is "according to the nature of said penalty" — which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied) Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually." The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his perpetual special disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from the time his judgment of conviction became final. Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath. As used in Section 74, the word

"eligible" means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v. Commission on Elections,17 the false material representation may refer to "qualifications or eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false material representation that is a ground for a petition under Section 78. As this Court explained in Fermin: Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.18 (Emphasis supplied) Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special disqualification attaches by operation of law, is not a ground for a petition under Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code: Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or

immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis supplied) There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the Court declared: The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied) A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election; and (4) a statement of the candidate’s allegiance to the Constitution of the Republic of the Philippines.20 We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos made a false material representation that is a ground for a petition under Section 78. The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is a ground for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78 without, however, saying under what specific provision of law a petition against Jalosjos can be filed to cancel his certificate of candidacy. What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition under Section 78. However, since the false material representation arises from a crime penalized by prisión mayor, a petition under Section 12 of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to the petitioner. The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the ground of ineligibility that existed at the time of the filing of

the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010 elections – Cardino – who received the highest number of votes. Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such noncandidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes.23 If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position. Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law. Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the conduct of an election."24 The disqualification of a convict to run for public office under the Revised Penal Code, as affirmed by final judgment

of a competent court, is part of the enforcement and administration of "all laws" relating to the conduct of elections. To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it does not motu proprio bar from running for public office those suffering from perpetual special disqualification by virtue of a final judgment. WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del Norte. Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department of Interior and Local Government so they can cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU. SO ORDERED.

EN BANC G.R. No. L-24761 September 7, 1965 LEON G. MAQUERA, petitioner, vs. JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as Chairman and Members of the Commission on Elections, and the COMMISSION ON ELECTIONS, respondents. --------------------------G.R. No. L-24828 September 7, 1965 FELIPE N. AUREA and MELECIO MALABANAN, petitioners, vs. COMMISSION ON ELECTIONS, respondent. Leon G. Maquera in his own behalf as petitioner. Ramon Barrios for respondents. RESOLUTION PER CURIAM: Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R. No. L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing: 1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal offices" to post a surety bond equivalent to the one-year 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;" 2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July 20, 1965, decided to require all candidates for President, Vice-President, Senator and Member of the House of Representatives to file a surety bond, by a bonding company of good reputation, acceptable to the Commission, in the sums of P60,000.00 and P40,000.00, for President and Vice-President, respectively, and P32,000.00 for Senator and Member of the House of Representatives; 3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the Commission on Elections, every candidate has to pay the premium charged by bonding companies, and, to offer thereto, either his own properties, worth, at least, the amount of the surety bond, or properties of the same worth, belonging to other persons willing to accommodate him, by way of counter-bond in favor of said bonding companies; 4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from running for President, Vice-President, Senator or Member of the House of Representatives those persons who, although having the qualifications prescribed by the Constitution therefore, cannot file the surety bond aforementioned, owing to failure to pay the premium charged by the bonding company and/or lack of the property necessary for said counter-bond; 5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or municipal elective offices, persons who, although possessing the qualifications prescribed by law therefor, cannot pay said premium and/or do not have the property essential for the aforementioned counter-bond; 6. That said 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; 7. 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 8. 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.

The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said Republic Act No. 4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents herein, as well as their representatives and agents, from enforcing and/or implementing said constitutional enactment.

EN BANC G.R. No. 78239 February 9, 1989 SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR., respondent. FERNAN, C.J.: The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion

was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984. By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1 Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. 2 The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held: We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite. In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. ... Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2). IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. 3

Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987. Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. 4 It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. 8

The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon. The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." 8-a At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:

The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9 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. Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... 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. ... (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of criminal conviction. The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions. Consider the following broad statements: A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of authorities now rejects the unduly broad language of the

Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. 16 The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction." 18 A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required." 20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22 In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes"

as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." 23 Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that office. 26 The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of 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. Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing

due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. 27 WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs. SO ORDERED.

FIRST DIVISION G.R. No. 75025 September 14, 1993 VICENTE GARCIA, petitioner, vs. THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents. Eulogio B. Alzaga for petitioner. The Solicitor General for respondents.

BELLOSILLO, J.: Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his claim. Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision. Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged. Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency. On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner. Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman.1 Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim. Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint,"2 holding that this Court is the proper forum to take cognizance of the appeal

on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution). Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency. In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to accord full justice to petitioner. On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him from administrative liability; (b) petitioners unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only if the respondent is exonerated from the administrative charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule. The petition is meritorious. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money.3 Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances: Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.4 From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening: In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition, while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to petitioner for the reason that "while it is a rule that an administrative case is separate and distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in the former

case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of petitioner Garcia. Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service Commission recommends the grant of executive clemency to petitioner in view of the findings of the court that — instead of coming forward to the defense of the accused who actually was authorized to uproot or recover the poles in question and of commending the latter for his high sense of responsibility in preventing losses to the government, said high officials had even the temerity to disown and deny the authority they gave to the accused resulting in his separation from the service and having him all alone in defending himself against the accusation of the very government he tried to protect. After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this decision of the court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable recommendation of the Minister of Transportation and Communications and the Civil Service Commission. In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency.5 Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran,6 we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged.7 When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the

offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency. Petitioner's automatic reinstatement to the government service entitles him to back wages.8 This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them.9 There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages. Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." 10 In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages. After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. 11 Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court show that petitioners therein were employees of local governments who were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis

or not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us is different, involving as it does circumstances that impel us to deviate from the general rule previously laid down on the recovery of back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction or qualification. WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale. SO ORDERED.

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents. Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896. Antonio P. Coronel for petitioners in 83815.

EN BANC G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991

FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are: Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman. Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary position. Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which provides as follows: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No. 838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions. Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284.6 Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This

"strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers –– one, the President and her official family, and the other, public servants in general –– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example."7 Article IX-B, Section 7, par. (2)8 provides: Sec. 7. . . . . . Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive executive official to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned (disparate positions). In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the President, VicePresident, Members of the Cabinet and their deputies or assistants. There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants from holding dual or multiple

positions in the Government admits of certain exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned. The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries." We rule in the negative. A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.11 The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly denounced on the floor of the Batasang Pambansa.12 This condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983." Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each.13 The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be discontinued. But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials

or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IXB, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government." It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case."14 Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution

itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the VicePresident, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure. Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the VicePresident who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII. It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.20 Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation.21 The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials.23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit.25 Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government,

is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided.26 To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office."27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment.28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority,29 and the Light Rail Transit Authority.30 The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments."32 The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural.33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority34 and the Civil Aeronautics Board. If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed.35 Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy. It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his position,"36 express reference to certain high-ranking appointive public officials like members of the Cabinet were made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions.39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22, 1986,40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986.41 It was only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ." What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission. That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be considered as not constituting "any other office." While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear.1âwphi1 Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face."43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an exofficio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof. In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran,

Jr., Secretary of Local Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered.46 It has been held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services.47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside. SO ORDERED.

EN BANC G.R. No. 88831 November 8, 1990 MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents. G.R. No. 84508 November 13, 1990 ANECITO CASCANTE petitioner, vs. THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents. Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508. Montemayor & Montemayor Law Office for private respondent. GRIÑO-AQUINO, J.: These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988. G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987. After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:

The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508). In his dissenting opinion, Commissioner Badoy, Jr. opined that: A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.) In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: ... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.) These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Section 18, Article XI of the 1987 Constitution provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under

this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC). In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case. In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.) Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it. An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.) As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein. Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal

constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529-530.) Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: xxx xxx xxx Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.' Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of

only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent. SO ORDERED.

EN BANC G.R. No. 87193 June 23, 1989 JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. J.L. Misa & Associates for petitioner. Lladoc, Huab & Associates for private respondent. CRUZ, J.: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to

set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF THE CLERK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN: Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178.

Petition No. 280225. Alien Registration No. A23 079 270. Very truly yours, WILLIAM L. WHITTAKER Clerk by: (Sgd.) ARACELI V. BAREN Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary — nor do they claim to have been coerced — to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the

outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law

envisions — surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED.

EN BANC G.R. No. 86564 August 1, 1989 RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents Estelito P. Mendoza for petitioner. Rillera and Quintana for private respondent. CRUZ, J.: The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the challenge abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows: SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election. The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that — Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1 For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date. The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when he filed his petition with the COMELEC. In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30,

1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part: Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite such effectivity clause. In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared: This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus: Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.) The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification

for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon. This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action. The Court has similarly acted in a notable number of cases, thus: From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6 xxx While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states: ... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court. (p. 43) Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that: ... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57;

Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lâwphî1.ñèt Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality. 7 xxx Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8 This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. We also note in his Reply, the petitioner says: In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9 This is still another reason why the Court has seen fit to rule directly on the merits of this case. Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980. On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows: I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct. STATEMENT A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976. B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country. C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous. D) According to our records LABO is still an Australian citizen. E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act. F) There are two further ways in which LABO could divest himself of Australian citizenship: (i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES. (Signed) GRAHAM C. WEST Consul This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13 Sir: With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information: 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976. 2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance. Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows: OATH OF ALLEGIANCE I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an Australian citizen. 14 and the Affirmation of Allegiance, which declares: AFFIRMATION OF ALLEGIANCE I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15 The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18 The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted,

not all the members joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts. The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case. The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen." The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not

appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that: ... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.) That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as follows: Sec. 42. Qualifications. — An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect. The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio city. The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26 Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took no part 31 and two others were on leave. 32 There the Court held: ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental Idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state

with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the ViceMayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED.

FIRST DIVISION G.R. No. L-55151 March 17, 1981 DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM and WILFREDO CABARDO, petitioners, vs. HON. MELECIO A. GENATO and DOMINADOR B. BORJE, respondents. MELENCIO-HERRERA, J.: The principal issue raised in this certiorari petition with a prayer for a Writ of Preliminary Injunction is whether or not respondent Judge committed grave abuse of discretion in issuing a Restraining Order, which had the effect of allowing private respondent, Dominador B. Borje, to retain his position as member of the Board of Directors of the Misamis Occidental Electric Cooperative, Inc ., (MOELCI II) Succintly stated, the pertinent facts follow:

Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director for Cooperative Development, respectively, of the National Electrification Administration (NEA). Petitioner Evelito Elento is the Acting General Manager of MOELCI II, while petitioners Ressurrection Inting, Antonio Lim and Wilfredo Cabardo, are members of its Board of Directors. Private respondent Dominador B. Borje, representing the North District of Ozamiz City, was elected Director of MOELCI II, to hold office as such for three years starting March 25, 1979. Section 21 of Presidential Decree No. 269 (second paragraph) provides: The provision of any law or regulation to the contrary notwithstanding, an officer or employee of the government shag be eligible for membership in any cooperative if he meets the qualifications therefor and he shall not be precluded from being elected to or holding any Position therein, or from receiving such compensation or fee in relation thereto as may be authorized by the by-laws; Provided That elective officers of the government, except barrio captains and councilors, shall be ineligible to become officers and/or directors of any cooperative, ... (emphasis supplied) Section 3, Article IV of the By-laws of MOELCI II also explicitly states: Section 3. Qualifications. ... No person shall be eligible to become or to remain a Board member of the Cooperative who xxx xxx xxx (c) holds an elective office in the government above the level of a Barangay Captain xxx xxx xxx (emphasis supplied) On 4 January 1980, private respondent filed his certificate of candidacy for the position of member of the Sangguniang Panglunsod of Ozamiz City in the 30 January 1980 local elections. On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Memorandum No. 18 to the effect that all officials and employees of electric cooperatives who run for public office, win and assume office, shall be considered The Memorandum was issued pursuant to the authority granted under PD No. 1645, amending PD No. 269, reading. 10. ... the NEA is empowered to issue orders, rules and regulations ... in the exercise of its power of supervision and control over electric cooperatives and other borrower, supervised or control entities (Sec. 5, amending Sec. 10 of P.D. No. 269). 1 On January 1980, the NEA Deputy Administrator sent a telegram to the Acting General Manager of MOELCI II stating that should private respondent Borje be elected to the Sangguniang Bayan, he shall be considered resigned from his position as Director for the North District of Ozamiz City, Private respondent moved reconsideration and requested that he be allowed to serve the unexpired term of his office in accordance with PD No. 269. Reconsideration was denied by NEA on 7 February 1980.

On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus & Construction of Legal Provisions with Preliminary Injunction and Damages" against petitioners before the Court of First Instance of Misamis Occidental, Branch II (Spec. Case No. 0511), seeking a declaration of entitlement to remain and to serve his unexpired term as Director of MOELCI II until March, 1982. On 3 March 1980, having won the election, private respondent assumed office and began discharging his functions. On the same date, 3 March 1980, respondent Judge issued, ex- parte, a temporary restraining Order commanding petitioners considering private respondent as resigned, and, instead, to snow him to retain his position as member of the Board of Directors of MOELCI IIpending hearing. 2 Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of cause of action and invoking section 21 of PD No. 269 (supra), section 3, Article IV of the by laws OF MOELCI II(supra), as well as section 24 of PD No. 269 providing that: ... The by-laws shall prescribe the number of directors their qualifications other than those prescribed in this Decree, the manner of holding meetings of the board and of electing successors to directors who shall resign, die or otherwise be incapable of acting. The bylaws may also provide for the removal of directors from office and for the election of their successors ... On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, 3 only to restore it the next day, 25 March 1980. 4 In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners stressed that NEA possessed the power and authority to promulgate Memorandum No 18, and that, similarly, the Board of Directors of MOELCI IIhad the power to implement the same under PD No. 269, as amended by PD 1645. Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion to Dismiss. On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent Judge, dated 25 March 1980, and dissolved the Restraining Order. 5 On 10 May 1980, the Board of Directors of MOELCI II held a special meeting and passed Resolution No. 121, S-80, implementing NEA Circular No. 18 and declaring private respondent's position as member of the Board of Directors of MOELCI II vacant. On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside the Order of the vacation Judge, dated 8 May 1980, in effect reviving the Restraining Order, on the ground that, as "councilor" of Ozamiz City, section 21 of PD No. 269 itself exempts private respondent from the prohibition imposed on elective officials to become Directors of electric cooperatives. 6 Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor General, advancing the view that Courts of First Instance have no jurisdiction to issue a Restraining Order and that respondent Judge had committed grave abuse of discretion in issuing the same.

On 10 October 1980 we required respondents to submit an Answer and issued a Restraining Order enjoining respondents from enforcing the Order of the Court a quo dated 6 June 1980 and from conducting further proceedings in the case below. Private respondent Borje has filed his Answer, petitioners have submitted their Reply, and on 2 February 1981, we resolved to give due course to the Petition and to consider the case submitted for decision. We find that respondent Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing the various Restraining Orders, the last of which was dated 6 June 1980. Private respondent has shown no clear and explicit right to the position of Director of MOELCI IIand is, therefore, not entitled to a Restraining Order, which partook of the nature of a mandatory Injunction, commanding as it did that private respondent be retained in his position as such Director. By having been elected member of the Sangguniang Panglunsod of Ozamiz City, private respondent rendered himself ineligible to continue serving as a Director of MOELCI IIby virtue of the clear mandate of PD No. 269 providing that except for "barrio captains and councilors", elective officials are ineligible to become officers and/or directors of any cooperative. It is clear to us that the term barrio modifies both captains and councilors. Further, the MOELCI II, by-laws explicitly state that no person can remain a member of the Board if he "holds an elective office above the level of barrio captain. Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a cooperatives from continuing in their position prior to their election, and that pursuant to section 24 of PD No. 269 he is entitled, as Director, to hold office for the term for which he is erected and until his successor is elected and qualified," is untenable. Eligibility to an office should be construed as of a continuing nature and must exist at the commencement of the term and during occupancy of the office. The fact that private respondent may have been qualified at the time he assumed the Directorship is not sufficient to entitle him to continue holding office, if during the continuance of his incumbency he ceases to be qualified. Private respondent was qualified to become a director of MOELCI II at the time of the commencement of his term, but his election as member of the Sangguniang Panglunsod of Ozamiz City, and his subsequent assumption of office, disqualified him to continue as such. Moreover, it should be recalled that when respondent Judge issued the Restraining Order of 6 June 1980. NEA Memorandum Circular No. 18 had already been implemented by the MOELCI Board in the latter's Resolution No. 121, passed on 10 May 1980, declaring the position of private respondent, as Director, vacant. Strictly speaking, therefore, there was no longer any position which private respondent could retain. WHEREFORE, finding that respondent Judge acted with grave abuse of discretion tantamount to lack of jurisdiction in issuing the Restraining Order, dated 6 June 1980, the said Order is hereby annulled and set aside, and the Petition in Special Civil Case No. 05IIof the Court below hereby ordered dismissed. The temporary Restraining Order heretofore issued by this Court is hereby made permanent. No pronouncement as to costs.

SO ORDERED.