G.R. No.

181559

October 2, 2009

LEAH M. NAZARENO, CARLO M. CUAL, ROGELIO B. CLAMONTE, FLORECITA M. LLOSA, ROGELIO S. VILLARUBIA, RICARDO M. GONZALES, JR., ROSSEL MARIE G. GUTIERREZ, NICANOR F. VILLAROSA, JR., MARIE SUE F. CUAL, MIRAMICHI MAJELLA B. MARIOT, ALMA F. RAMIREZ, ANTOLIN D. ZAMAR, JR., MARIO S. ALILING, TEODULO SALVORO, JR., PHILIP JANSON ALTAMARINO, ANTONIETTA PADURA, ADOLFO R. CORNELIA, IAN RYAN PATULA, WILLIAM TANOY, VICTOR ARBAS, JEANITH CUAL, BRAULIO SAYSON, DAWN M. VILLAROSA, AGUSTIN A. RENDOQUE, ENRIQUETA TUMONGHA, LIONEL P. BANOGON, ROSALITO VERGANTINOS, MARIO T. CUAL, JR., ELAINE MAY TUMONGHA, NORMAN F. VILLAROSA, RICARDO C. PATULA, RACHEL BANAGUA, RODOLFO A. CALUGCUGAN, PERGENTINO CUAL, BERNARD J. OZOA, ROGER JOHN AROMIN, CHERYL E. NOCETE, MARIVIC SANCHEZ, CRISPIN DURAN, REBECO LINGCONG, ANNA LEE ESTRABELA, MELCHOR B. MAQUILING, RAUL MOLAS, OSCAR KINIKITO, DARWIN B. CONEJOS, ROMEL CUAL, ROQUETA AMOR, DISODADO LAJATO, PAUL PINO, LITO PINERO, RODULFO ZOSA, JR. and JORGE ARBOLADO, Petitioners, vs. CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES, DOMINADOR DUMALAG, JR., ERLINDA TUMONGHA, JOSEPHINE MAE FLORES AND ARACELI CAMPOS, Respondents. DECISION DEL CASTILLO, J.: The integrity and reliability of our civil service is, perhaps, never more sorely tested than in the impassioned demagoguery of elections. Amidst the struggle of personalities, ideologies, and platforms, the vigor and resilience of a professional civil service can only be preserved where our laws ensure that partisanship plays no part in the appointing process. Consequently, we affirm the validity of a regulation issued by the Civil Service Commission (CSC or the Commission) intended to ensure that appointments and promotions in the civil service are made solely on the basis of qualifications, instead of political loyalties or patronage. This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision1 of the Court of Appeals dated August 28, 2007 and its Resolution 2 dated January 11, 2008 in CA-G.R. CEB-SP No. 00665. The case stemmed from CSC Field Offices invalidation of petitioners appointments as employees of the City of Dumaguete, which was affirmed by the CSC Regional Office, by the Commission en banc and by the Court of Appeals. Legal and Factual Backgrounds Accreditation of Dumaguete City by the Civil Service Commission On October 25, 1999, pursuant to the Commissions Accreditation Program, the CSC issued Resolution No. 992411,3 which granted the City Government of Dumaguete the authority to take final action on all its appointments, subject to, inter alia, the following conditions: 1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within the limits and restrictions of the implementing guidelines of the CSC Accreditation Program as amended (MC No. 27, s. 1994); xxxx 5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service Field Office] CSFO concerned; xxxx

9. That appointments found in the course of monthly monitoring to have been issued and acted upon in violation of pertinent rules, standards, and regulations shall immediately be invalidated by the Civil Service Regional Office (CSRO), upon recommendation by the CSFO. Appointments made by outgoing Mayor Remollo Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but lost to respondent Mayor Agustin R. Perdices. Thereafter, on June 5, 7, and 11, 2001, outgoing Mayor Remollo promoted 15 city hall employees, and regularized another 74 city hall employees, including the herein 52 petitioners. On July 2, 2001, Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall grounds that he would not honor the appointments made by former Mayor Remollo. On the same day, he instructed the City Administrator, respondent Dominador Dumalag, Jr., to direct respondent City Assistant Treasurer Erlinda C. Tumongha (now deceased), to refrain from making any cash disbursements for payments of petitioners' salary differentials based on their new positions. The Petition for Mandamus before the Regional Trial Court of Dumaguete City Thus, on August 1, 2001, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer for a Temporary Restraining Order against the City of Dumaguete, represented by respondent city mayor Perdices and city officers Dumalag, Tumongha, Josephine Mae Flores, and Araceli Campos. The petition was docketed as Civil Case No. 13013, and raffled to Branch 41 of the Regional Trial Court of Dumaguete City. Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taking any action or issuing any orders nullifying their appointments. In a Decision4 dated March 27, 2007, the Regional Trial Court dismissed the petition; petitioners Motion for Reconsideration was also denied in an Order5 dated April 26, 2007. The issues involved in Civil Case No. 13013 have twice been elevated to and eventually resolved by the Court in G.R. Nos. 1777956 and 168484.7 Revocation of Appointments by the Civil Service Commission Field Office Relative to this main case, on August 1, 2001, the CSC Field Office in Dumaguete City, through Director II Fabio R. Abucejo, revoked and invalidated the appointments of the petitioners (the August 1, 2001 Order) based of the following findings: 1. There were a total of 15 promotional appointments and 74 original appointments issued as reflected in the submitted [Report of Personnel Actions] ROPA for the month of June 2001. 2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held on 5 June 2001 to consider the number of appointments thus issued and there was no other call for a PSB meeting certified to by the City [Human Resource Management Officer] HRMO. 3. There were no minutes available to show the deliberations of the PSB of the 89 appointments listed in the ROPA as certified by the City HRMO. 4. There were no PSB statements certifying that there was actual screening and evaluation done on all candidates for each position. 5. The appointing officer of the 89 appointments was an outgoing local official who lost during the 14 May 2001 elections for City Mayor of Dumaguete City. 6. The 89 appointments were all issued after the elections and when the new city mayor was about to assume office.8

Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No. 010988 dated June 4, 2001, the pertinent portions of which provide: WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission anticipates controversies that would arise involving appointments issued by outgoing local chief executives immediately before or after the elections; WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue appointments even after the elections, especially when their successors have already been proclaimed. WHEREAS, the practice of some outgoing local chief executives causes animosities between the outgoing and incoming officials and the people who are immediately affected and are made to suffer the consequences thereof are the ordinary civil servants, and eventually, to a large extent, their constituents themselves; WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring new employees during the prohibited period as provided for in CSC Memorandum Circular No. 7, series of 2001, is to prevent the occurrence of the foregoing, among others;9 WHEREAS, local elective officials whose terms of office are about to expire, are deemed as "caretaker" administrators who are duty bound to prepare for the smooth and orderly transfer of power and authority to the incoming local chief executives; WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting President is prohibited from making appointments two (2) months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety; WHEREAS, while there is no equivalent provision in the Local Government Code of 1991 (Republic Act 7160) or in the Civil Service Law (Book V of Executive Order No. 292) of the abovestated prohibition, the rationale against the prohibition on the issuance of "midnight appointments" by the President is applicable to appointments extended by outgoing local chief executives immediately before and/or after the elections; xxxx NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency of the government, hereby issues and adopts the following guidelines: xxxx 3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, except in cases of renewal and reinstatement, regardless of status, which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, including its Regional or Field Offices, of said appointments or the Report of Personnel Actions (ROPA) as the case may be, shall be disapproved unless the following requisites concur relative to their issuance: a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting; b) That the appointee is qualified; c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety;

d) That the appointment is not one of those mass appointments issued after the elections. 4. The term "mass appointments" refers to those issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their immediate issuance. On September 4, 2001, petitioners filed a Motion for Reconsideration of the August 1, 2001 Order before the CSC Region VII Office in Cebu. The motion was, however, denied on the ground that it should have been filed before the office of Director Abucejo in Dumaguete City. Thereafter, on October 31, 2001, petitioners asked the CSC Region VII Office in Cebu to treat their previous Motion for Reconsideration as their appeal.1avvphi1 On February 14, 2002, the CSC Region VII Office affirmed the August 1, 2001 Order. Subsequently, an Appeal to the Commission en banc was filed through registered mail by 52 of the original 89 appointees, the petitioners herein, namely: Name 1. Leah M. Nazareno 2. Carlo M. Cual 3. Rogelio B. Clamonte 4. Florecita Llosa 5. Rogelio S. Villarubia 6. Rossel Marie G. Gutierrez Former Position Legal Researcher Legislative Staff Officer I Public Services Supply Officer I Agriculturist II Casual/Plantilla New Position Asst. Dept. Head I Legislative Staff Officer III Supply Officer IV Records Officer II Agriculturist III Supervising Environmental Management Specialist Dentist II Social Welfare Officer I Records Officer II Clerk IV Metro Aide II Driver II Metro Aide II Clerk I Metro Aide II Metro Aide II Metro Aide II Metro Aide II Public Services Foreman Utility Worker II Mechanical Plant Date of Appointment 7-Jun-01 5-Jun-01 5-Jun-01 11-Jun-01 5-Jun-01 5-Jun-01

7. Nicanor F. Villarosa, Jr. 8. Marie Sue Cual 9. Miramichi Majella B. Mariot 10. Alma F. Ramirez 11. Antolin D. Zamar, Jr. 12. Mario S. Aliling 13. Teodulo Salvoro, Jr. 14. Philip Janson Altamarino 15. Antonieta Padura 16. Adolfo Cornelia 17. Ian Ryan Patula 18. William Tanoy 19. Victor Arbas 20. Jeanith Cual 21. Braulio Sayson

Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla

5-Jun-01 7-Jun-01 7-Jun-01 7-Jun-01 11-Jun-01 5-Jun-01 5-Jun-01 5-Jun-01 11-Jun-01 11-Jun-01 7-Jun-01 5-Jun-01 7-Jun-01 5-Jun-01 7-Jun-01

Supervisor 22. Dawn Villarosa 23. Agustin Rendoque 24. Enriqueta Tumongha 25. Lionel Banogon 26. Rosalito Vergantinos 27. Mario Cual, Jr. 28. Elaine Tumongha 29. Norman Villarosa 30. Ricardo C. Patula 31. Rachel Banagua 32. Rodolfo Calugcugan 33. Pergentino Cual 34. Bernard Ozoa 35. Roger J. Aromin 36. Cheryl Nocete 37. Marivic Sanchez 38. Crispin Duran 39. Rebeco Lingcong 40. Anna Lee Estrabela 41. Melchor Maquiling 42. Raul Molas Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Casual/Plantilla Job Order Job Order Job Order Job Order Job Order Job Order Job Order Job Order Job Order Job Order Job Order Clerk I Utility Worker I Utility Worker II Clerk II Pest Control Worker II Utility Foreman Registration Officer I Utility Worker I Revenue Collection Clerk I Utility Worker I Driver I Metro Aide II Utility Worker I Utility Worker I Utility Worker I Utility Worker I Metro Aide II Metro Aide II Cash Clerk III Engineer I Construction and Maintenance Foreman Electrician II Engineering Aide Metro Aide II Dental Aide Pest Control Worker II Utility Worker II Metro Aide II Metro Aide II Traffic Aide I Asst. Dept. Head I 7-Jun-01 7-Jun-01 5-Jun-01 5-Jun-01 5-Jun-01 7-Jun-01 11-Jun-01 5-Jun-01 5-Jun-01 5-Jun-01 7-Jun-01 11-Jun-01 7-Jun-01 7-Jun-01 11-Jun-01 11-Jun-01 11-Jun-01 5-Jun-01 5-Jun-01 7-Jun-01 7-Jun-01

43. Oscar Kinikito 44. Darwin Conejos 45. Romel Cual 46. Roqueta Amor 47. Diosdado Lajato 48. Paul Pino 49. Lito Piero 50. Rodulfo Zosa, Jr. 51. Jorge Arbolado 52. Ricardo M. Gonzales, Jr.

Job Order Job Order Job Order Job Order Job Order Job Order Job Order Job Order Job Order OIC-General Services Officer

7-Jun-01 7-Jun-01 11-Jun-01 5-Jun-01 5-Jun-01 5-Jun-01 11-Jun-01 11-Jun-01 5-Jun-01 5-Jun-01

Ruling of the CSC en banc and the Court of Appeals On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and affirming the invalidation of their appointments on the ground that these were mass appointments made by an outgoing local chief executive.10 The Commission explained: The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The prohibition is designed to discourage losing candidates from extending appointments to their protgs or from giving their constituents "promised" positions (CSC Resolution No. 97-0317 dated January 17, 1997, Re: Roldan B. Casinillo). Moreover, the same is intended to prevent the outgoing local chief executive from hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus, any means that would directly or indirectly circumvent the purposes for which said Resolution was promulgated should not be allowed, particularly when the appointments were issued by the appointing authority who lost in said election. Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005, through CSC Resolution No. 050473. Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEB-SP No. 00665. On August 28, 2007, the Court of Appeals denied the appeal and affirmed CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, ratiocinating that: The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the nefarious practice by outgoing local chief executives in making appointments before, during, and/or after the regular local elections for ulterior partisan motives. Said practice being analogous to "midnight appointments" by the President or Acting President, the CSC then promulgated Resolution No. 010988, to suppress the mischief and evils attributed to "mass appointments" made by local chief executives. Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January 11, 2008. The Parties Arguments Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without authority to issue regulations prohibiting mass appointments at the local government level. Petitioners cite De Rama v. Court of Appeals11 which held that Section 15, Article VII of the Constitution is only applicable to the President or Acting President. They claim that outgoing or defeated local appointing authorities are authorized to make appointments of qualified individuals until their last day in office, and that not all mass appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority to take "final action" on all appointments, the Commission did not have any authority to disapprove the appointments made by outgoing mayor Remollo. In their Comment dated May 15, 2008,12 respondents argue that petitioners appointments violated civil service rules and regulations other than CSC Resolution No. 010988. Respondents also assert that the Commission is authorized to invalidate the petitioners appointments, because the CSC accreditation program carried with it the caveat that "said exercise of authority shall be subject to Civil Service law, rules and regulations." Finally, respondents claim that petitioners were guilty of forum shopping because the issues in this case and in G.R. No. 177795 are the same. Our Ruling We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that the invalidation of petitioners appointments was warranted. Consequently, we affirm the Decision of the Court of Appeals dated August 28, 2007 and its Resolution dated January 11, 2008 in CA-G.R. CEB-SP No. 00665.

The CSC has the authority to establish rules to promote efficiency in the civil service The Commission, as the central personnel agency of the government, 13 has statutory authority to establish rules and regulations to promote efficiency and professionalism in the civil service. Presidential Decree No. 807,14 or the Civil Service Decree of the Philippines, provides for the powers of the Commission, including the power to issue rules and regulations and to review appointments: Section 9: Powers and functions of the Commission The Commission shall administer the Civil Service and shall have the following powers and functions: xxxx (b) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of this Decree x x x (c) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient, and effective personnel administration in the government; xxxx (h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the armed forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications; (Emphasis supplied) Executive Order No. 292, or the Administrative Code of 1987, also provides: Section 12: Powers and Functions The Commission shall have the following powers and functions: xxxx (2) prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws; (3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs topromote economical, efficient, and effective personnel administration in the government; (4) take appropriate action on all appointments and other personnel matters in the Civil Service including extension of Service beyond retirement age; (5) inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices, local government units, and other instrumentalities of the government, including government owned and controlled corporations. (emphasis supplied) Clearly, the above-cited statutory provisions authorize the Commission to "prescribe, amend, and enforce" rules to cover the civil service. The legislative standards to be observed and respected in the exercise of such delegated authority are set out in the statutes, to wit: to promote "economical, efficient, and effective personnel administration." The Reasons behind CSC Resolution No. 010988 We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true that there is no constitutional prohibition against the issuance of "mass appointments" by defeated local government officials prior to the expiration of their terms. Clearly, this is not the same as a

"midnight appointment," proscribed by the Constitution, which refers to those appointments made within two months immediately prior to the next presidential election.15 As we ruled in De Rama v. Court of Appeals:16 The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. However, even while affirming De Rama, we explained in Quirog v. Aumentado, 17 that: We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those made by chief executives of local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. (Emphasis supplied) Quirog also involved the disapproval of an appointment for non-compliance with CSC Resolution No. 010988. However, we found that Quirogs appointment was made on June 1, 2001, or three days prior to the issuance of CSC Resolution No. 010988. As such, we ruled that the retroactive application of the law was not warranted. In Sales v. Carreon, Jr.,18 we had occasion to discuss the reasons behind the prohibition by the Commission of mass appointments after the elections. Sales involved the issuance of 83 appointments made by then Dapitan City Mayor Joseph Cedrick O. Ruiz in his last month of office (on June 1, 18, and 27, 2001), which the newly elected Mayor, Rodolfo H. Carreon, subsequently revoked, on the ground that these violated CSC Resolution No. 010988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing appointments in the civil service during the election period. In Sales, we declared: This case is a typical example of the practice of outgoing local chief executives to issue "midnight" appointments, especially after their successors have been proclaimed. It does not only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed tend to devote their time and energy in defending their appointments instead of attending to their functions.19 It is not difficult to see the reasons behind the prohibition on appointments before and after the elections. Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To this end, appointments within a certain period of time are proscribed by the Omnibus Election Code and related issuances.20 After the elections, appointments by defeated candidates are prohibited, except under the circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow the incoming administration a free hand in implementing its policies, and to ensure that appointments and promotions are not used as a tool for political patronage or as a reward for services rendered to the outgoing local officials. Not all Mass Appointments are Prohibited Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No. 010988 does not purport to nullify all "mass appointments." However, it must be shown that the appointments have undergone the regular screening process, that the appointee is qualified, that there is a need to fill up the vacancy immediately, and that the appointments are not in bulk. In Nazareno v. Dumaguete,21 we explained:

CSC Resolution No. 010988 does not totally proscribe the local chief executive from making any appointments immediately before and after elections. The same Resolution provides that the validity of an appointment issued immediately before and after elections by an outgoing local chief executive is to be determined on the basis of the nature, character, and merit of the individual appointment and the particular circumstances surrounding the same. Corollarily, we held in Sales,22 that: x x x [e]ach appointment must be judged on the basis of the nature, character, and merits of the individual appointment and the circumstances surrounding the same. It is only when the appointments were made en masse by the outgoing administration and shown to have been made through hurried maneuvers and under circumstances departing from good faith, morality, and propriety that this Court has struck down "midnight" appointments. In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate dates, but within a ten-day period, in the same month that he left office.23 Further, the Commissions audit found violations of CSC rules and regulations that justified the disapproval of the appointments. In this regard, CSC Memorandum Circular No. 40, otherwise known as the Revised Rules on Appointments and Other Personnel Actions, provides: Section 1 Appointments submitted to the CSC office concerned should meet the requirements listed hereunder. Non-compliance with such requirements shall be grounds for disapproval of said appointments: xxxx (h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and evaluated by the PSB, if applicable. As proof thereof, a certification signed by the Chairman of the Board at the back of the appointment or alternati vely, a copy of the proceedings/ minutes of the Boards deliberation shall be submitted together with the appointment. The issuance of the appointment shall not be earlier than the date of the final screening/deliberation of the PSB. Here, there was only one en banc meeting of the city PSB to consider the appointments, without any evidence that there were any deliberations on the qualifications of the petitioners, or any indication that there was an urgent need for the immediate issuance of such appointments. The absence of evidence showing careful consideration of the merits of each appointment, and the timing and the number of appointments, militate against petitioners cause. On the contrary, the prevailing circumstances in this case indicate that the appointments were hurriedly issued by the outgoing administration. The Accreditation of Dumaguete City did not remove the CSCs authority to review appointments We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to "take final action" on all its appointments did not deprive the Commission of its authority and duty to review appointments. Indeed, Resolution No. 992411 states that such exercise of authority shall be "subject to civil service law, rules and regulations" and that appointments in violation of pertinent rules "shall immediately be invalidated." Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides that notwithstanding the initial approval of an appointment, the same may be recalled for "[v]iolation of other existing Civil Service laws, rules and regulations." The CSC is empowered to take appropriate action on all appointments and other personnel actions and that such power "includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations."24 Petitioners have not engaged in forum shopping The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable

judgment.25 Forum-shopping has been defined as the act of a party against whom an adverse judgment has been rendered in one forum, seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.26 Although the factual antecedents of the cases brought before this Court are the same, they involve different issues. The petition for Mandamus with Injunction and Damages, docketed as Civil Case No. 13013, and raised before this Court as G.R. No. 177795, challenged respondents refusal to recognize petitioners appointments and to pay petitioners salari es, salary adjustments, and other emoluments. The petition only entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present case docketed as G.R. No. 181559, on the other hand, involves the merits of petitioners appeal from the invalidation and revocation of their appointments by the CSC -Field Office, which was affirmed by the CSC-Regional Office, CSC en banc, and the Court of Appeals. In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795, which found petitioners not guilty of forum shopping, to wit: True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are not necessarily the same for this Court to adjudge that the filing of both by petitioners constitutes forum shopping. In G.R. No. 181559, the Court will resolve whether or not the petitioners appointments are valid. [In G.R. No. 177795], petitioners are claiming a right to the salaries, salary adjustments and other emoluments during the pendency of the administrative cases, regardless of how the CSC decided the validity of their appointments. WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals Decision in CA-G.R. CEB-SP No. 00665 dated August 28, 2007 affirming CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, and its Resolution dated January 11, 2008 denying the Motion for Reconsideration are AFFIRMED.

Nazareno vs. City of Dumaguete G.R. No. 177795 June 19, 2009 FACTS Petitioners were all bona fide employees of the City Government of Dumaguete. They were appointed to various positions by the City Mayor Filipe Antonio B. Remollo, Jr. some time in June 2001, shortly before the end of his term. On July 2, 2001 the newly elected City Mayor Agustin Perdices announced during a flag ceremony held at the City Hall that he was not recognizing the appointments by former Mayor Remollo, which include the petitioners. Thereafter, City Administrator Dominador Dumalag, Jr. issued a Memorandum dated July 2, 2001 directing Assistant City Treasurer Erlinda Tumongha to "refrain from making any disbursements, particularly payments for salary differential[s]" to those given promotional appointments by former Mayor Remollo. Thus, petitioners filed with the RTC a Petition for Mandamus with Injunction and Damages with prayer for a Temporary Restraining Order and Preliminary Injunction against respondents City Mayor Perdices and City Officers Dumalag, etc. ISSUE Are petitioners entitled to compensation for services actually rendered by them while the disapproval of their appointment was pending with CSC? HELD While it is true that it is the ministerial duty of the government to pay for the appointees' salaries while the latter's appeal of the disapproval of their appointments by CSC-FO and/or CSC-RO is still pending

before the CSC Proper, however, this applies only when the said appointments have been disapproved on grounds which do not constitute a violation of civil service law. Such is not the case in the instant Petition. Until the Court resolves the Petition in G.R. No. 181559 (issue on whether petitioners' appointments should be disapproved for having been made in violation of CSC Resolution No. 010988 dated 4 June 2001), reversing the disapproval of petitioners appointments or declaring that the disapproval of the same was not on grounds which constitute violation of civil service law, the Court cannot rule in the instant Petition that it is the ministerial duty of the City Government of Dumaguete to pay petitioners' salaries while disapproval of their appointment was pending with CSC. Thus, there is yet no ministerial duty compellable by a writ of mandamus.

Nazareno vs. City of Dumaguete Nazareno vs. City of Dumaguete 527 SCRA 509 Agustin R. Perdices won over incumbent Mayor Felipe Antonio B. Remollo for the mayoralty post. He was to assume office on June 30, 2001. Before Perdices assumption, Remollo made fifteen (15) promotional appointments, and seventy -four (74) original appointments for various positions in the city government. July 2, 2001: Remollo dishonored the appointments made by Remollo. Leah M. Nazareno, et al, filed with the RTC of Dumaguete City a Petition for Mandamus, Injunction and Damages against the City of Dumaguete, represented by Mayor Remollo. Aug. 1, 2001: Director Abucejo of the Civil Service Commission Field Office (CSCFO) invalidated and revoked the questioned appointments as they were issued in violation of the guidelines set forth by the CSC. Aug. 3, 2001: RTC issued a writ of prelim injunction against the City Government pending the final adjudication of the case. The court reversed Director Abucejos on the ground that the questioned appointments may only be invalidated by the Regional Office upon recommendation by the CSCFO. City of Dumaguete claimed that Director Abucejos decision already became final after petitioners failed to move for reconsideration of the same. They moved for the dismissal of the injunction case. RTC denied the motion to dismiss but agreed with the finality of the decision. It permanently lifted the preliminary injunction. Nazareno et al, appealed to the CA. The appeal was denied and dismissed by the court. ISSUE: (1) Whether or not the petition for injunction filed by Nazareno et al. is premature? YES! HELD/RATIO: Nazareno et al. prematurely filed the injunction because there was still no invalidation of their appointments. The filing was only prompted by Mayor Perdices announcement that he was dishonoring the appointments made by former mayor Remollo. The invalidation only took place on August 1, 2001. After the invalidation, they could still file an appeal with the CSC Regional Office. Thus, they had ample administrative remedies under the law to protect their rights but they chose to go straight to the regular courts.

Injunction is not designed to protect contingent or future rights, and as such, the possibility of irreparable damage without proof of actual existing right is no ground for injunction. The Court refused to rule on the validity of the appointments since it was the subject of a separate petition for review before the Court of Appeals. Thus, it held that there was no need for the separate case of injunction since Nazareno et al. are given by law and related rules adequate remedies to protect their rights and interests.

G.R. No. 185766

November 23, 2010

CIVIL SERVICE COMMISSION, Petitioner, vs. COURT OF APPEALS and PHILIPPINE CHARITY SWEEPSTAKES OFFICE, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 185767 CIVIL SERVICE COMMISSION, Petitioner, vs. COURT OF APPEALS and PHILIPPINE CHARITY SWEEPSTAKES OFFICE, Respondents. DECISION MENDOZA, J.: These are two consolidated petitions for review on certiorari under Rule 45 of the Rules of Court filed by the Civil Service Commission (CSC) questioning two separate decisions of the Court of Appeals (CA) regarding appointments in the Philippine Charity Sweepstakes Office (PCSO). In G.R. No. 185766, petitioner CSC seeks to set aside the August 12, 2008 Decision 1 of the CA in CA-G.R. SP No. 98800 and its November 28, 2008 Resolution denying petitioners motion fo r reconsideration thereof. In G.R. No. 185767, petitioner CSC seeks to set aside the June 26, 2008 Decision 2 of the CA in CA-G.R. SP No. 99119 and its November 17, 2008 Resolution denying petitioners motion for reconsideration. THE FACTS (A) G.R. No. 185766 On March 16, 2005, the Board of Directors of PCSO resolved to appoint Josefina A. Sarsonas (Sarsonas) as Assistant Department Manager II of the Internal Audit Department (IAD) of PCSO under temporary status. Thus, on the same day, PCSO General Manager Rosario Uriarte issued a temporary appointment to Sarsonas as Assistant Department Manager II. 3 On April 26, 2005, the Civil Service Commission Field Office Office of the President (CSCFOOP) disapproved the temporary appointment of Sarsonas as she failed to meet the eligibility requirement for the position.4 CSCFO-OP certified that there were qualified individuals who signified their interest to be appointed to the position, namely, Mercedes Hinayon and Reynaldo Martin. 5 On May 10, 2005, PCSO filed an appeal with the CSC-National Capital Region (CSC-NCR).6 In a letter dated June 21, 2005, the CSC-NCR affirmed the disapproval by CSCFO-OP of the temporary appointment of Sarsonas on the following grounds: (a) that she failed to meet the eligibility requirement; and (b) that

there were two qualified eligibles who signified their interest to be appointed to the said position, as certified by CSCFO-OP.7 PCSO filed an appeal with CSC on August 15, 2005.8 On March 15, 2006, the CSC dismissed the appeal in CSC Resolution No. 06-0466, the dispositive portion of which states: WHEREFORE, the appeal of General Manager Rosario C. Uriarte, Philippine Charity Sweepstakes Office (PCSO), is DISMISSED. Accordingly, the disapproval by the Civil Service Commission National Capital Region (CSC-NCR), Quezon City, of the temporary appointment of Josefina A. Sarsonas as Assistant Department Manager II, Internal Audit Department (IAD), PCSO is AFFIRMED.9 PCSO filed a motion for reconsideration but it was denied in CSC Resolution No. 070572.10 Convinced of its position, PCSO elevated the case to the CA, which reversed the assailed CSC resolutions in its August 12, 2008 decision.11 CSCs motion for reconsideration was denied in a Resolution dated November 28, 2008.12 (B) G.R. No. 185767 On November 25, 2004, the PCSO Board of Directors resolved to appoint Lemuel G. Ortega (Ortega) as Assistant Department Manager II of its Planning and Production Department. 13 The PCSO General Manager, thus, issued a fourth renewal of his temporary appointment.14 On December 7, 2004, CSCFO-OP disapproved the temporary appointment of Ortega for his failure to meet the eligibility requirement for the position.15 CSCFO-OP further reasoned out that there were other qualified third-level eligibles working in PCSO who were willing and available to be appointed to the subject position, namely, Mercedes Hinayon and Reynaldo Martin.16 On March 4, 2005, CSCFO-OP returned the said appointment to PCSO.17 On March 18, 2005, PCSO wrote to CSC-NCR seeking reconsideration of CSCFO-OPs disapproval of Ortegas temporary appointment.18 The letter cited Ortegas thirty nine (39) years of experience in planning and production and his competence in his assigned tasks.19 The letter also stated that PCSO management had the utmost trust and confidence in Ortega with regard to carrying out the duties and responsibilities attached to the subject position.20 On June 21, 2005, CSC-NCR affirmed CSCFO-OPs disapproval of Ortegas temporary appointment21 on the ground that he failed to acquire the required eligibility despite the four-year period within which he could have done so.22 PCSO appealed to the CSC alleging that Ortega possessed all the requirements necessary for the subject position except the needed eligibility.23 PCSO also claimed that the qualified eligibles who had indicated their interest to be appointed to the position did not possess the same training for such highly technical positions.24 PCSO further reasoned out that Section 7(3), Title I, Book V of the Administrative Code of 1987 provides an exclusive enumeration of the specific positions covered by the Career Executive Service (CES), all of whom are appointed by the President and are required to have Career Service Executive (CSE) eligibility.25 PCSO argued that since the position of Assistant Department Manager II does not require presidential appointment, then it does not require CSE eligibility.26 On March 28, 2006, CSC issued Resolution No. 06-0528 disapproving Ortegas fourth temporary appointment.27PCSOs motion for reconsideration was denied in Resolution No. 07-0821 dated April 30, 2007.28 When PCSO appealed before the CA, the appellate court set aside the above resolutions in its June 26, 2008 Decision.29 CSCs motion for reconsideration was denied in a Resolution dated November 17, 2008. 30

RULING OF THE COURT OF APPEALS In both G.R. Nos. 185766 and 185767, the CA ruled that CSC erred in finding that the position of Assistant Department Manager II requires CSE eligibility,31 rendering improper the temporary appointments of Sarsonas and Ortega, respectively. In G.R. No. 185766, the CA held that the resolution of the PCSO Board to appoint Sarsonas as Assistant Department Manager II was a policy decision and an exercise of management prerogative over which the CSC has no power of review. 32 Since the position of Assistant Department Manager II was not one of those enumerated under the Administrative Code, and was not identified by the Career Executive Service Board (CESB) as equivalent to those listed under the law, then "the position of Assistant Department Manager II does not fall under the category pertaining to the Career Executive Service."33 In G.R. No. 185767, the CA similarly ruled that the Career Executive Service does not cover the position of Assistant Department Manager II in the Planning and Production Department of the PCSO. 34 Therefore, it follows that CSE eligibility is not required for the said position, and the CSC should have affirmed Ortegas temporary appointment to the said position.35 In resolving both cases, the CA cited Book V, Title I, Subtitle A of Executive Order (E.O.) No. 292 or the Administrative Code of 1987, and stated that the position of Assistant Department Manager II of the PCSO was not one of those specific positions under the CES enumerated under Section 7(3), Title I, Book V, all the holders of which must be presidential appointees, thus, requiring CSE eligibility. 36 The said provision states: SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: xxx (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; xxx. Citing Office of the Ombudsman v. Civil Service Commission,37 the CA concluded that since the Assistant Department Manager II was appointed not by the President of the Philippines but by the PCSO General Manager, subject to approval or confirmation of the PCSO Board of Directors, as provided for under its Charter, then Sarsonas was not a presidential appointee, and her position should not have been included by the CSC in the list of positions requiring CSE eligibility.38 In the case of Ortega, the CA cited the same case but fell short of making a similar categorical pronouncement. 39 Moreover, in the case of Sarsonas, the CA noted and agreed with the dissenting opinion of CSC Commissioner Cesar D. Buenaflor (Commissioner Buenaflor) in Resolution No. 070572.40 Commissioner Buenaflor opined that the position of Assistant Department Manager II and other similar positions in government financial institutions and government-owned and controlled corporations were erroneously classified by the CSC as belonging to the third level position in the civil service. 41 Regarding the two qualified eligibles who signified their interest to be permanently appointed to any third level position, the CA stated that Mercedes J. Hinayon (Hinayon) was designated as Officer-in-Charge, Assistant Department Manager of the Draw and Races Department, and would, according to the PCSO, be eventually considered for promotion in the said department.42 On the other hand, Reynaldo Martin (Martin), the OIC-Regional Manager of the Northern and Central Luzon Online Lottery Section, was

likewise being considered by PCSO management for promotion to a position which would suit his experience and expertise.43 The CA also stressed that there was no showing in the records that either Hinayon or Martin ever protested Sarsonas appointment as Assistant Department Manager II. 44 In the case of Ortega, the CA wrote that the responsibility for the establishment, administration and maintenance of qualification standards lies with the department or agency concerned. CSCs role is limited to (1) assisting the department or agency with respect to those qualification standards, and (2) approving them.45 Therefore, the CSC cannot substitute its own standards for those of the department or agency concerned.46 Lastly, the CA held that under Presidential Decree No. 807, Section 9(h), which authorized the CSC to approve appointments to positions in the civil service, except those specified therein, the CSCs authority was limited to the determination of whether the appointees possess the legal qualifications and the appropriate eligibility.47 In this case, the CA stated, except for her lack of CSE eligibility, Sarsonas possessed the basic qualifications of an Assistant Department Manager II, as determined by the PCSO General Manager and Board of Directors. Such being the case, the CSC had the ministerial duty to approve the temporary appointment of Sarsonas to the said position. 48 The refusal to approve the appointment was a clear encroachment on the discretion vested solely in the PCSO General Manager and Board of Directors as appointing authority.491awphil CSC, in its petitions for review before this Court, raises this ISSUE WHETHER THE COURT OF APPEALS ERRED IN SETTING ASIDE THE CSC RESOLUTIONS DISAPPROVING THE TEMPORARY APPOINTMENTS OF SARSONAS AND ORTEGA AS ASSISTANT DEPARTMENT MANAGER II FOR LACK OF THE REQUIRED THIRD LEVEL ELIGIBILITY. Stated otherwise, the core issue to be resolved in this case is whether or not the position of Assistant Department Manager II falls under the CES. RULING OF THE COURT Following the ruling in Office of the Ombudsman v. Civil Service Commission cases50 and Home Insurance Guarantee Corporation v. Civil Service Commission ,51 the Court is of the position that the CES covers presidential appointees only. Corollarily, as the position of Assistant Department Manager II does not require appointment by the President of the Philippines, it does not fall under the CES. Therefore, the temporary appointments of Sarsonas and Ortega as Assistant Department Manager II do not require third level eligibility pursuant to the Civil Service Law, rules and regulations. Executive Order No. 292 or the Administrative Code of 1987 provides for three (3) classes or levels in the career service. Book V, Title I, Subsection A, Chapter 2, Section 8 thereof provides: SEC. 8. Classes of Positions in the Career Service. (1) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: (a) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (b) The second level shall include professional, technical, and scientific positions which involve professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (c) The third level shall cover positions in the Career Executive Service.

(2) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who shall meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in the lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board. (3) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupation groups. A candidate for promotion should, however, have previously passed the examination for that level. (Emphasis provided.) Section 7 of the same code specifically delineates the coverage of the Career Executive Service, thus: SEC. 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equal rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled or unskilled. (Emphasis provided.) Clearly, although the Administrative Code gives the CESB jurisdiction over entrance to the third level or the CES, the officers should be all "appointed by the President." Also worthy of note are CSC Resolution No. 100623 dated March 29, 2010 and CSC Memorandum Circular No. 7, S. 2010, both of which provide for clarificatory guidelines on the scope of the third level in the civil service: 1. The third level or Career Executive Service (CES) shall only cover the positions of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; 2. Executive and managerial positions in the career service other than the foregoing shall belong to the second level; and

3. All policies and issuances of the Commission which are not in conformity with these guidelines are superceded, repealed, amended or modified accordingly. As earlier stated, the Court interpreted Section 7(3) to mean that the CES covers presidential appointees only. In Home Insurance Guarantee Corporation v. Civil Service Commission, the Court stated that the position of HIGC Vice President is not covered by the CES52 as (1) the position is not enumerated by law as falling under the third level;53 (2) respondent Cruz has not established that the position is one of those identified by the CESB as being of equivalent rank to those listed by law;54 and (3) the holder thereof is not appointed by the President.55 In the 2005 case of Office of the Ombudsman v. Civil Service Commission ,56 the Court used a similar process of deduction to arrive at the conclusion that the position of Graft Investigation Officer III was not a CES position. In the said case, the Court wrote: From the above-quoted provision of the Administrative Code,57 persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution, to wit: xxx To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. [Reference and emphasis provided.]58 Two years later, the Court was again confronted with the same issue in an identically named case. It held that as the position of Director II in the Central Administrative Service or Finance and Management Office of the Office of the Ombudsman was appointed by the Ombudsman, and not by the President, "he is neither embraced in the CES nor does he need to possess CSE eligibility." 59 In the 2007 Office of the Ombudsman v. Civil Service Commissioncase, the Court, citing the 2005 case, said: The CSCs opinion that the Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman are covered by the CES is wrong. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO 292, otherwise known as "The Administrative Code of 1987," provides: xxx Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC: "From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. x x x" (Underscoring supplied. Emphasis authors own.)60 The above 2007 case was, in turn, cited by the Court two years later in National Transmission Corporation v. Hamoy,61 where again, it was categorically stated that the CES covers only presidential appointees: Petitioner also cites Caringal v. Philippine Charity Sweepstakes Office (PCSO) and Erasmo v. Home Insurance Guaranty Corporation, to show that a presidential appointment is not required before a position in a government corporation is classified as included in the CES. We are not convinced. xxx

Positions in the CES under the Administrative Code include those of Undersecretary, Assistant Secretary, Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. Simply put, third-level positions in the Civil Service are only those belonging to the Career Executive Service, or those appointed by the President of the Philippines. This was the same ruling handed down by the Court in Office of the Ombudsman v. Civil Service Commission, wherein the Court declared that the CES covers presidential appointees only. xxx Respondent was appointed Vice-President of VisMin Operations and Maintenance by Transco President and CEO Alan Ortiz, and not by the President of the Republic. On this basis alone, respondent cannot be considered as part of the CES.62 [Underscoring and emphases supplied] In said case, the Court clarified that the cases cited by the National Transmission Corporation case, to wit:Caringal v. Philippine Charity Sweepstakes Office (PCSO) and Erasmo v. Home Insurance Guaranty Corporation, which, incidentally, were also cited by CSC in this petition, were not in point with respect to the question of whether a position is covered by the CES: Caringal and Erasmo cited by petitioner are not in point. There, the Court ruled that appointees to CES positions who do not possess the required CES eligibility do not enjoy security of tenure. More importantly, far from holding that presidential appointment is not required of a position to be included in the CES, we learn from Caringal that the appointment by the President completes the attainment of the CES rank, thus: "Appointment to a CES Rank Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, and incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the recommendation of the Board. This process completes the officials membership in the CES, and most importantly, confers on him security of tenure in the CES. To classify other positions not included in the above enumeration as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for non-CES positions in the President, in violation of the Constitution; or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code." 63 [Italics authors own] Thus, from the long line of cases cited above, in order for a position to be covered by the CES, two elements must concur. First, the position must either be (1) a position enumerated under Book V, Title I, Subsection A, Chapter 2, Section 7(3) of the Administrative Code of 1987, i.e. Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service, or (2) a position of equal rank as those enumerated, and identified by the Career Executive Service Board to be such position of equal rank. Second, the holder of the position must be a presidential appointee. Failing in any of these requirements, a position cannot be considered as one covered by the third-level or CES. In the case at bench, it is undisputed that the position of Assistant Department Manager II is not one of those enumerated under the Administrative Code of 1987. There is also no question that the CESB has not identified the position to be of equal rank to those enumerated. Lastly, without a doubt, the holder of the position of Assistant Department Manager II is appointed by the PCSO General Manager, and not by the President of the Philippines. Accordingly, the position of Assistant Department Manager II in the PCSO is not covered by the third-level or CES, and does not require CSE eligibility. WHEREFORE, the petitions are DENIED.

G.R. No. 95450 March 19, 1993 HOME INSURANCE AND GUARANTY CORPORATION (HIGC), petitioner, vs. CIVIL SERVICE COMMISSION and DANIEL R. CRUZ, respondents. The Government Corporate Counsel for petitioner. The Solicitor General for public respondent. Jacinto D. Jimenez for private respondent.

BELLOSILLO, J.: This is a petition for certiorari 1 seeking to set aside the Resolutions 2 of respondent Civil Service Commission which directed petitioner Home Insurance and Guaranty Corporation (HIGC) to reappoint private respondent Daniel R. Cruz albeit to a position next lower in rank to Vice-President in petitioner corporation, and to pay him backwages from the date of his dismissal making as basis his old salary rate as Vice-President. Private respondent was the Vice President, Finance and Administrative Group of the Home Financing Corporation, now known as the Home Insurance and Guaranty Corporation (HIGC), from 1 June 1986 to 8 July 1988, when he was not reappointed as a result of the reorganization of petitioner firm. Initially, the appointment of private respondent Cruz was approved as temporary by the Civil Service Commission(COMMISSION for brevity) subject to his completion of the Executive Leadership and Management Program. On a reconsideration, the COMMISSION changed the appointment from temporary to permanent but still subject to his completion of the leadership program within three (3) years from the effectivity date of his appointment, otherwise he would be reverted to temporary status. Sometime in 1987, Cruz was found responsible by an investigating committee for simple neglect of duty arising from his inefficient supervision over his subordinates arising from the loss of six (6) Land Bank checks. In July 1988, HIGC underwent a reorganization which resulted among others in the reduction of the number of Vice President positions from (6) to three (3). Respondent Cruz was one of those not reappointed as he was found to have no civil service eligibility. On appeal to the HIGC Reorganization Appeals Board, Cruz invoked his permanent appointment and insisted that the question of his eligibility should be left for determination by the COMMISSION. In the meantime, Cruz sought to avail of the Early Separation Incentive Package (ESIP) granted by HIGC to those who were not reappointed and then withdrew his appeal. On 7 December 1988, Cruz refiled his appeal after he was not granted ESIP benefits by HIGC. On 8 December 1988, Cruz elevated his appeal for reinstatement with the COMMISSION. On 20 February 1989, the HIGC Reorganization Appeals Board dismissed Cruz's appeal. On 2 August 1989, however, the COMMISSION issued Resolution No. 89-543 finding Cruz to be a holder of a permanent career position at HIGC, hence, may be reappointed to a position next lower in rank to Vice President under the Finance Group without reduction in salary, pursuant to CSC Memorandum Circular No. 10, s. 1986, and that in case Cruz could not be reappointed

then his application to avail of the Early Separation Incentive Package (ESIP) should be approved. It further ruled that Cruz should be paid all the benefits and privileges due him as Vice President of HIGC in connection with his reassignment to the Office of the President and Bliss Development Corporation. Resolving petitioner's Motion for Reconsideration of the Resolution, the COMMISSION issued on 18 December 1989 Resolution No. 89-973 holding that since Cruz had not received the early retirement benefits he applied for, he should be reappointed to the position next lower to the Vice President of the Finance Group, such as Manager of the Comptrollership Department, Treasury or other Department, and that he should be paid his back salaries from the time of his termination on the basis of his old salary rate as Vice-President. On 5 September 1990, the COMMISSION issued Resolution No. 90-823 denying petitioner's motion for reconsideration of modified Resolution No. 89-973. Hence, this petition for certiorari. On 6 November 1990, We issued a temporary restraining order, effective immediately and to continue until further orders from the Court, enjoining respondent COMMISSION to cease and desist from enforcing its Order of 10 October 1990, 3 as well as the resolutions in question. Petitioner now contends that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned Resolutions for being contrary to established principles governing the civil service career system and of the basic constitutional mandate that appointments to the civil service shall be made only according to merit and fitness; and, that the nonreappointment of Cruz was the result of a valid reorganization. We grant the petition. The principal issue to be resolved is whether the COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that respondent Cruz was a permanent employee enjoying security of tenure and thus may be removed from office only for cause. Respondent Cruz contends that he was extended a permanent appointment as indicated in his appointment papers. 4 He asserts that it is not necessary for him to pass any competitive civil service examination to become eligible for he belongs to the third level in the career service, which covers positions in the Career Executive Service, and which does not require passing a competitive civil service examination. But law and jurisprudence do not support the contention of private respondent. Presidential Decree No. 807, otherwise known as the "Civil Service Decree of the Philippines," provides the following levels of positions in the career service: (a) the first level, which includes clerical, trades, crafts and custodial service positions involving non-professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (b) the second level, which includes professional, technical and scientific positions involving professional, technical, or scientific work in a nonsupervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and, (c) the third level, which includes positions in the Career Executive Service. 5 Positions in the Career Executive Service consist of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. 6 Entrance to the first two levels shall be through competitive examinations, while entrance to the third level shall be prescribed by the Career Executive Service Board. 7 The Constitution clearly mandates that appointments in the civil service shall be made only according to merit and fitness to be determined as far as practicable, and except to positions which are policydetermining, primarily confidential or highly technical, by competitive examination. 8

Respondent Cruz has not satisfactorily shown that his former position as Vice President in the HIGC belongs to the third level in the career service as prescribed by law. His former position as Vice President is not among those enumerated by law as falling under the third level, nor has he established that it is one of those identified by the Career Executive Service Board as of equivalent rank to those listed by law. Neither is it claimed that he was appointed by the President. We agree then with petitioner HIGC that the position of Vice President to which Cruz was formerly appointed belongs to the second level position which under the law includes professional, technical and scientific positions involving professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level. Entrance to this second level is through competitive examination. In other words, a person occupying a position in this level must possess a civil service eligibility, i.e., he must have obtained a passing grade in a civil service examination, or has been granted a civil service eligibility and whose name is accordingly entered in the register of eligibles. 9 Clearly, eligibility then is a sine qua non to acquiring a permanent appointment, except those positions which are not required by law to be filled with civil service eligibles. A permanent appointment is defined as one issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. 10 In the case before Us, it is not disputed that respondent Cruz is without any civil service eligibility as shown by his appointment papers. 11 As such, respondent Cruz cannot be legally conferred a permanent appointment for the law is clear that career positions, particularly the first and second level positions in the service, require civil service eligibility. Thus the attestation by respondent COMMISSION that respondent Cruz's appointment is permanent must be struck down for being contrary to law. As correctly observed by the Solicitor General: "The permanent appointment of a non-civil service eligible to a career position is, from a legal viewpoint, a nullity. Not even the CSC can validate the error, as it cannot rise higher than the law that created it the same law that requires civil service eligibility for a permanent appointment to any of the two positions subject of the present petition." 12 Consequently, respondent Cruz's appointment being merely temporary in the context of the Civil Service Law, it follows that Cruz's appointment can be terminated at the pleasure of the appointing power. 13 There can therefore be no question that petitioner HIGC acted legally when, after effecting a reorganization, it no longer reappointed respondent Cruz. We agree with petitioner HIGC that the qualifications of respondent Cruz are definitely inferior to those of the incumbents of the next-lower-inrank positions who have civil service eligibilities and are at the same time certified public accountants. As we have noted earlier, respondent Cruz is not a civil service eligible; neither is he a certified public accountant who can be vested with civil service eligibility upon examination under R.A. 1080. 14 After all, a non-eligible shall not be appointed to any position in the civil service whenever there is a civil service eligible actually available for and ready to accept appointment. 15 It is certainly erroneous for respondent COMMISSION to direct HIGC to reappoint respondent Cruz, a noncivil service eligible, to a position which requires a first grade civil service eligibility. As We have repeatedly held, appointment is an essentially discretionary power and must be exercised by the officer in whom it is vested according to his best lights, the fundamental requisite being that the appointee must possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been appointed. This is a political question involving considerations of wisdom which only the appointing authority can decide. 16 We also find reasonable, fair and valid the reorganization carried out by petitioner HIGC which led to the separation from the service of respondent Cruz. Significantly, respondent COMMISSION does not question but appears in fact to concede the validity of the reorganization effected by petitioner HIGC as reflected in the questioned CSC Resolution No. 89-543 It is admitted that this reorganization of the HIGC resulted in the reduction in the number of positions of Vice President from six (6) to three (3) only. And, after due assessment and evaluation, Cruz was found to be one of the least competent and qualified to be reinstated to the same or comparable position as shown by the comparative analysis of the

qualifications of the appellant and the re-appointed Vice Presidents, Carlo P. Doble, Fernando M. Miranda and Wilfredo F. Hernandez . . . . 17 As We ruled in Dario v. Mison, 18 "[R]eorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. In sum, We find that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it insisted in holding respondent Cruz eligible for reappointment to a permanent position in a government owned and controlled corporation in derogation of the provision of law categorically proscribing such a conclusion. WHEREFORE, the petition is GRANTED. The questioned CSC Resolutions Nos. 89-543, 89-973 and 90-823 are REVERSED and SET ASIDE. Accordingly, respondent Daniel R. Cruz is declared ineligible for reappointment in petitioner Home Insurance and Guaranty Corporation for lack of civil service eligibility as required by law. SO ORDERED.

[G.R. No. 159940. February 16, 2005]

OFFICE OF THE OMBUDSMAN, petitioner, vs. CIVIL SERVICE COMMISSION, respondent. DECISION CARPIO-MORALES, J.: Before this Court is a petition for certiorari under Rule 65 of the 1997 Revised Rules of Court seeking to set aside and nullify Resolution No. 030919 of the Civil Service Commission (CSC) dated August 28, 2003. The antecedents of the case are as follows: By letter[1] dated March 7, 1994 addressed to then Ombudsman Conrado M. Vasquez, the CSC approved the Qualification Standards for several positions in the Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III. The Qualification Standards for said position are: EDUCATION: Bachelor of Laws EXPERIENCE: 5 years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/ criminal cases, legal research or other related work. TRAINING: 24 hours of relevant training ELIGIBILITY: RA 1080 (Bar) The Career Executive Service Board (CESB) subsequently advised the Ombudsman, by letter of May 29, 1996,[2] that pursuant to CSC Memorandum Circular No. 21, s.1994, the position of Graft Investigation Officer III, among other positions in petitioner therein mentioned, was classified as a Career Executive Service (CES) position, hence, governed by the rules of the CES pertaining to eligibility, appointment to CES ranks, and performance evaluation, among other things.

On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group (CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted Joint Resolution No. 62 [3] reading: JOINT RESOLUTION NO. 62 WHEREAS, the independence of the members of the Constitutional Fiscal Autonomy Group (CFAG) is guaranteed by the Constitution; WHEREAS, the Constitution has several provisions that guarantee and protect such independence, among which are Sections 4 and 5 of Article IX, A thereof, which respectively grant them Fiscal Autonomy and authorize them to appoint their own officials and employees in accordance with law; WHEREAS, Section 7(3), Title I, Book V of the Administrative Code of 1987 enumerates exclusively and restrictively the specific positions under the Career Executive Service, all the holders of which are appointed by the President and are required to have CES eligibility; WHEREAS, in case of Home Insurance Guaranty Corporation vs. Civil Service Commission and Daniel Cruz, G.R. No. 95450, dated 19 March 1993, the Supreme Court nullified the classification by the CSC of the position of Corporate Vice President as belonging to the third level of the Career Executive Services; WHEREAS, the Court declared in the above cited case that said position is not among those enumerated by law as falling under the third level, nor one of those identified by the CES Board as equivalent rank to those listed by law, nor was the incumbent appointed by the President; WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T. Yorac, G.R. No. 93867, dated 18 December 1990, the Supreme Court ruled that Article IX-A, Sec. 1 of the Constitution expressly describes all Constitutional Commissions as Independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. WHEREAS, only the Chairmen and Commissioners of the Constitutional Commissions, the Commission on Human Rights, Justices and Judges, as well as the Ombudsman and his Deputies, are appointed by the President; WHEREAS, the Constitutional Commissions, the Supreme Court, the Commission on Human Rights, and the Office of the Ombudsman are empowered to appoint officials and employees to positions belonging to first level up to third level of their respective agencies, and that they are not presidential appointees; WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book V, of the Administrative Code of 1987, provides in part that [t]he degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular positions[,] and par. 2 thereof provides that [t]he establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission; NOW, THEREFORE, the CFAG jointly resolves: 1. That all third level positions under each member agency are career positions; 2. That, where appropriate and proper, taking into consideration the organizational set-up of the agency concerned, the overall screening and selection process for these positions shall be a collegial undertaking, provided that the appointment paper shall be signed only by the Head of the member agency; 3. That all career third level positions identified and classified by each of the member agency are not embraced within the Career Executive Service (CES) and as

such shall notrequire Career Service Executive Eligibility (CSEE) or Career Executive Service (CES) Eligibility for purposes of permanent appointment; 4. That should CFAG member agencies develop their respective eligibility requirements for the third level positions, the test of fitness shall be jointly undertaken by the CFAG member agencies in coordination with the CSC; 5. That in case the test of fitness shall be in written form, the CSC shall prepare the questionnaires and conduct the examinations designed to ascertain the general aptitude of the examinees while the member agency shall likewise prepare the questionnaires and conduct in conjunction with the CSC, the examinations to determine the technical capabilities and expertise of the examinees suited to its functions; 6. That the resulting eligibility acquired after passing the aforementioned examination shall appropriate for permanent appointment only to third level positions in the CFAG member agencies; 7. That the member agencies shall regularly coordinate with the CSC for the conferment of the desired eligibility in accordance with this Resolution; However this is without prejudice to those incumbents who wish to take the Career Service Executive Examination given by the Civil Service Commission or the Management Aptitude Test Battery given by the Career Executive Service Board. (Underscoring in the original omitted; emphasis, italics and underscoring supplied) On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by the Ombudsman. The CSC approved the appointments on the condition that for the appointees to acquire security of tenure, they must obtain CES or Civil Service Executive (CSE) eligibility which is governed by the CESB. By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of status, from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), as affirmed by the Supreme Court, the Ombudsman wrote: xxx In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government,and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision thereby effectively granted the petition of Mr. Inok for security of tenure as Director II of the Commission on Audit despite the absence of a CES eligibility.[4] (Emphasis and italics supplied) The relevant portions of the cited CA decision read: Presidential Decree No. 807, otherwise known as the Civil Service Decree of the Philippines, provides the following levels of position in the career service, viz: SEC. 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: (1) The first level shall include clerical, trades, crafts, and custodial service positions which involve nonprofessional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

(2) The second level shall include professional, technical, and scientific positions which involve professional; technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (3) The third level shall cover positions in the Career Executive Service . (b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in a lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board. (c) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should however, have previously passed the examination for that level. The last sentence of Section 7(b) of P.D. No. 807 is similar to the provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit: (a) Membership. A person who meets such managerial experience and other requirements and passes such examinations as may be prescribed by the Board shall be included in the register of career service eligibles and, upon appointment to an appropriate class in the Career Executive Service, become an active member in the Service. In exceptional cases, the Board may give unassembled examinations for eligibility. The area of recruitment shall be government-wide, with provisions to allow qualified or outstanding men from outside the government to enter the service. Thus, it could be gleaned from P.D. No. 1 of the Career Executive Service (CES), which has been [d]rafted into Executive Order No. 292, that the letter and intent of the law is to circumscribe the Career Executive Service to CES positions in the Executive Branch of government. Verily, consistent with the principle of the ejusdem generis in legal hermeneutics, the phrase other officers of equivalent rank could encompass only such persons occupying positions in the Executive Department. In the contemporaneous case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs. Atty. Josefina G. Bacal, the Supreme Court lent credence to this postulate, viz: Security of tenure in the career executive service is acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to frst and second level employees in the civil service but to the rank to which they are appointed by the President. x x x Prescinding from the foregoing disquisition, We are loathe to stamp our imprimatur to the Commissions stance that the positions of Director III, including that of the COA, belong to the third level. Hence, appointees thereto should possess the x x x Career Executive Service (CES) Eligibility in accordance with the Qualification Standard of the said position. Ineluctably, the judiciary, the Constitutional Commissions, the Office of the Ombudsman, and the Commission on Human Rights are not covered by the CES governed by the CESB. The power of these constitutional offices to appoint their own officers and employees is mainly intended to safeguard their independence, which is the same power of appointment of all officials and employees of the judiciary granted to the Supreme Court. As commented by a noted constitutionalist: The authority of the Supreme Court to appoint its own officials and employees is another measure intended to safeguard the independence of the judiciary. However, the Courts appointing authority must be exercised in accordance with the Civil Service Law. Irrefragrably, inherent in the power to appoint is the power to administratively supervise the officials and employees in the constitutional offices in the same manner that the express power to appoint carries with it the implied power to remove the personnel appointed in said offices. x x x

xxx Parenthetically, the power to administratively supervise is designed to strengthen the independence of the constitutional offices. A respected authority on political law underscored the multifarious factors that are integral to the independence of the constitutional offices, scilicet: There are several factors that preserve the independence of the three Commissions: xxx (3) Their appointment must be in a permanent capacity. (4) The Commissions enjoy their own fiscal autonomy. The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. to be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the same manner that the Supreme Court administers the judiciarys civil service. x x x[5] (Italics and emphasis in the original; underscoring partly in the original and partly supplied; citations omitted) It appears that Carandang and Clemente were in the meantime conferred with CSE Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003.[6] Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft Investigation and Prosecution Officer III. The Ombudsman thereupon requested the approval of the proposed Qualification Standards for the reclassified positions. With respect to the reclassified Graft Investigation and Prosecution Officer III position, the Qualification Standards were the same as those for Graft Investigation Officer III. Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed the status of Carandangs and Clementes appointments to permanent effective June 6, 2003, but not with respect to De Jesus on the ground that he has not met the eligibility requirements. The pertinent portion of the questioned Resolution reads: Relevant to the matter are Sections 4 and 6, Rule III and Rule VI, respectively, of the Omnibus Rules on Appointments and Other Personnel Action, which state: SEC. 4. Nature of Appointment. The nature of appointment shall be as follows: xxx i. Change of status: 1. temporary to permanent the appointment issued to a temporary employee when he acquires the appropriate eligibility or becomes fully qualified for the position to which he is appointed. xxx SEC. 6. In cases where the appointee fully qualifies for the position to which he is temporarily appointed, the appointing authority shall no longer issue an appointment for change of status from temporary to permanent. Upon the appointees presentation of the required document/s, such change may be effec ted as a footnote on the temporary appointment issued, copy furnished the Commission.

It is explicitly provided therein that the change of status from temporary to permanent can be effected only once the appointee becomes fully qualified to the position to which he is appointed. xxx The pronouncement of the Court of Appeals in the Inok case cannot be made the basis for changing the employment status of De Jesus. Let it be stressed that nowhere in the aforesaid decision states that the Office of the Ombudsman or the other constitutional agencies mentioned therein are exempt or are not covered by the Civil Service Law and Rules. On the contrary, the same decision declares that these bodies are covered by the civil service system. Basic is the rule that all appointments in the government service, particularly the career service, must be in accordance with the qualification requirements as laid down under existing civil service rules and regulations. Such policy is in line with the Commissions mandate to professionalize the civil service. The requirements spelled out in the Qualification Standards (QS) Manual are designed to determine the fitness of the appointee in a certain position. These requirements are indispensable in order to satisfy the Constitutional mandate that appointment in the civil service shall be made according to merit and fitness. While it is true that constitutional agencies such as the Office of the Ombudsman has the authority to appoint its officials in accordance with law, such law does not necessarily imply that their appointment will not be subject to Civil Service Law and Rules; otherwise, these independent bodies will arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to Constitutional Commissions in the matter of appointments, it would have been so provided. But that is not the case. the Philippine Constitution provides: The Constitutional Commissions shall appoint their officials and employees in accordance with law (Article IX-A, Section 4). Specifically, Section 6, Article XI of the Constitution states that The officials, shall be appointed by the Ombudsman according to the Civil Service Law. And since all matters pertaining to appointments are within the realm of expertise to the CSC, all laws, rules and regulations it issues on appointments must be complied with. The Constitution speaks of only one civil service, to encompass the first, second, and third levels. It is subject to the same set of laws, rules and regulations in the manner of observing and ensuring that the merit and fitness principle, unless otherwise exempted therefrom by the Constitution or law, is the guiding factor in issuing appointments. Hence, until and unless there is a law or rule exempting one category of public officials from the test in determining merit and fitness, all levels in the government are deemed subject to it. Simply put, the third level eligibility requirement for third level officials in all agencies is mandatory. Further, let it be clarified that the ruling enunciated in Inok case was with regard to the authority of the Career Executive Service Board to prescribe and to administer the Career Executive Service Eligibility and it did not specifically nor particularly take away the functions of the Civil Service Commission. This is evident from the aforequoted decision in the Inok case, to wit: The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. To be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the manner that the Supreme Court administers the judiciarys civil service. Pursuant to the QS Manual, a Graft Investigation Officer III position is a career service position requiring a Career Service Eligibility or Career Service Executive Eligibility. Considering that De Jesus has not met the eligibility requirement, the change of status of his appointment from temporary to permanent cannot be effected. As held in Achacoso vs. Macaraig, 195 SCRA 235: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary.

x x x (Underscoring partly in the original and partly supplied; emphasis supplied) Hence, the present petition anchored on the following ground: THE GENERAL POWER OF RESPONDENT CIVIL SERVICE COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL THE SPECIFIC DISCRETIONARY POWER OF APPOINTMENT, INCLUDING THE GRANT OF SECURITY OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT CONSTITUTIONAL BODY IN FAVOR OF THE LATTERS OWN OFFICIALS, AND ANY SUCH CURTAILMENT BY THE RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION NO. 030919 DATED 26 AUGUST 2003, IS CONSTITUTIONALLY AND LEGALLY INFIRM. Petitioner contends that the CSC misreads the ratio of the appellate court decision in Inok. It contends that the Ombudsman, as an appointing authority, is specifically tasked by the Constitution to choose his own qualified personnel, which includes the lesser power of granting security of tenure to his appointees once the basic qualification requirements are satisfied.[7] Petitioner likewise contends that its constitutional discretion as an independent appointing authority cannot be curtailed by the CSC which has no authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. [8] Petitioner further contends that the CES Eligibility, as administered by the respondent CESB, cannot be validly made a requisite for the attainment of security of tenure on qualified career officials of petitioner who are not legally part of the CES. Finally, petitioner argues that its officials which are appointed by the Ombudsman are technically classified as belonging to the Closed Career Service, the positions being unique and highly technical as they involve investigatorial, quasi-judicial and prosecutorial functions, in much the same way as judges are involved in judicial functions. Hence, petitioner concludes, appointment to such positions is likewise characterized by security of tenure. During the pendency of the case before this Court, the CSC, by Resolution [9] No. 040738 dated July 6, 2004, approved the proposed Qualification Standards for Graft Investigation and Prosecution Officer I, II and III. As proposed, the following Qualification Standards for Graft Investigation and Prosecution Officer III were approved: Education : Bachelor of Laws Experience : Five (5) years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/criminal cases, legal research or other related works Training : 24 hours of relevant training Eligibility : RA 1080 (BAR) The petition is impressed with merit. That the positions subject of the present case are unique and highly technical in nature, as are those of the Judiciary, is recognized by the constitutional offices under the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member.[10] Inok cannot be invoked as precedent in arriving at the question raised in this petition. This Court dismissed the petition of the CSC in the Inok case on a technicality therein petitioner CSCs failure to file a reply within the required period and not on the merits. Book V, Title I, Subtitle A of the Administrative Code of 1987 provides: SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include:

1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President ; x x x (Emphasis and underscoring supplied) From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution, to wit: SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW. To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else.[11] It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority. [12] It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too. In a Supplemental Memorandum[13] received by this Court on January 5, 2005, the CSC alleged that, inter alia: . . . the reclassified G[raft] I[nvestigation and] P[rosecution] O[fficer] III position is the same position which is the subject of the herein case. Suffice it to state that the eligibility requirement under the new QS is no longer third level eligibility but RA 1080 (BAR) instead. However, notwithstanding the said approval of the new QS for GIPO III, CSC prays that the issues raised by the Office of Ombudsman relative to the authority of the CSC to administer the Civil Service Executive Examination for third level positions and to prescribe third level eligibility to third level positions in the Office of the Ombudsman be resolved. As the Court takes note of the information of the CSC in its Supplemental Memorandum, it holds that third level eligibility is not required for third level officials of petitioner appointed by the Ombudsman in light of the provisions of the Constitution vis a vis the Administrative Code of 1987 as discussed above.

WHEREFORE, the petition is hereby GRANTED. Resolution No. 030919 of the Civil Service Commission dated August 28, 2003 is hereby SET ASIDE. The appointment of Jose Tereso U. de Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul Elmer M. Clemente, is hereby ordered made permanent effective December 18, 2002. SO ORDERED.

EN BANC OFFICE OF THE OMBUDSMAN, Petitioner, G.R. No. 162215 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR. and NACHURA, JJ. Promulgated: July 30, 2007 x---------------------------------------------------x DECISION CORONA, J.:

- versus -

CIVIL SERVICE COMMISSION, Respondent.

This Court is once again called upon to settle a controversy between two independent constitutional bodies and delineate the limits of their respective powers. In the exercise of its mandate, this Court reaffirms its commitment to constitutionalism and the rule of law. This controversy traces its roots to Ombudsman Simeon V. Marcelos letter [1] dated July 28, 2003 to the Civil Service Commission (CSC) requesting the approval of the amendment of qualification standards for Director II positions in the Central Administrative Service and Finance and Management Service of the Office of the Ombudsman. The letter read: This is in relation to the career positions of Director II of the Central Administrative Service and the Finance and Management Service of this Office. The qualification standards set for said Director II positions pursuant to Civil Service Commission Memorandum Circular No. 1 dated January 24, 1997 are as follows:

Education Experience Training Eligibility

: : : :

Bachelors degree 3 years of supervisory experience None required. Career Service Executive Eligibility (CSEE)/Career Executive Service (CES)

The requirement for a Civil Service Executive Eligibility (CSEE)/Career Executive Service (CES) eligibility presupposes that the Director II position belongs to the third level and positions therein are covered by the Career Executive Service. However, in the Decision of the Court of Appeals dated January 18, 2001 on CA-G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it is stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision effectively granted the petition of Mr. Inok for security of tenure as Director III of the Commission on Audit despite the absence of a CES eligibility. Accordingly and consistent with the provision of Section 22(2), please be advised that the Office of the Ombudsman has established the qualification standards for the positions of Director II of the Central Administrative Service and Finance Management Service as follows: Education Experience Training Eligibility : : : : Bachelors degree 3 years of supervisory experience None required. Career Service Professional/ Relevant Eligibility for Second Level Position

the

In view of the foregoing, it is respectfully requested that the Commission approve qualification standards for the above positions.[2]

Acting thereon, the CSC issued Opinion No. 44, s. 2004 [3] dated January 23, 2004 disapproving the request. This refers to [the Office of the Ombudsmans] proposed qualification standards (QS) for Director II position in the Central Administrative Service and Finance Management Service, Office of the Ombudsman, which was forwarded to this Office by Director Agnes Padilla of CSC-NCR. Invoking the Decision of the Court of Appeals in the Inok case, that Office established the QS for the position of Director II of the Central Administrative Service and Finance Management [Service], as follows: Education Experience Training Eligibility : : : : Bachelors degree 3 years of supervisory experience None required Career Service Professional/ Relevant Eligibility for Second Level position

Under the 1997 Revised Qualification Standards requirements for Director II positions are as follows: Education Experience Training Eligibility : : : :

Manual,

the

qualification

Bachelors degree 3 years of supervisory experience None required Career Service Executive Eligibility (CSEE)/Career Executive Service (CES)

The Commission strictly subscribes to the policy that Director II position being third level eligibility and [is] covered by the Career Executive Service .[4] In CSC Resolution No. 030919 dated August 28, 2003, the Commission rule[d] as follows: The pronouncement of the Court of Appeals in the Inok case cannot be made the basis for changing the employment status of De Jesus. Let it be stressed that nowhere in the aforesaid decision states that the Office of the Ombudsman or other constitutional agencies mentioned therein are exempt or are not covered by Civil Service Law and Rules. On the contrary, the same decision declares that these bodies are covered by the civil service system. Basic is the rule that all appointments in the government service, particularly the career service, must be in accordance with the qualification requirements as laid down under existing civil service rules and regulations. x x x The Commission, as the central personnel agency of the government, is mandated by the Constitution to administer all levels in the civil service, including that of the third level. The Administrative Code enumerated the powers and functions of the Commission, worthy to mention are the following: Section 12. Powers and Functions. The Commission shall have the following powers and functions: (1) Administer and enforce the constitutional and statutory provisions on the merit system for all levels and ranks in the Civil Service; x x x (4) Formulate policies and regulations for the administration, maintenance and implementation of position classification and compensation and set standards for the establishment, allocation and reallocation of pay scales, classes and positions; x x x The Ombudsman and other constitutional offices are covered by the civil service system. To set aside the authority of the Commission to require third level eligibilities to said offices would be to nullify and strike down the very core of the civil service, that is, the promotion of merit and fitness principle in all aspects of personnel administration including the establishment of qualification standards for all levels and ranks in the government. In view of the foregoing, we regret that [the Office of the Ombudsmans] request for approval of the qualification standards for the position of Director II at the Central Administrative Service and Finance Management Service, Office of the Ombudsman, cannot be granted.[5]

The Office of the Ombudsman, claiming that its constitutional and statutory powers were unduly curtailed, now seeks to set aside and nullify CSC Opinion No. 44, s. 2004 via this petition for certiorari. [6]

The Office of the Ombudsman asserts that its specific, exclusive and discretionary constitutional and statutory power as an independent constitutional body to administer and supervise its own officials and personnel, including the authority to administer competitive examinations and prescribe reasonable qualification standards for its own officials, cannot be curtailed by the general power of the CSC to administer the civil service system. Any unwarranted and unreasonable restriction on its discretionary authority, such as what the CSC did when it issued Opinion No. 44, s. 2004, is constitutionally and legally infirm. We agree with the Office of the Ombudsman. The CSCs opinion that the Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman are covered by the CES is wrong. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO[7] 292, otherwise known as The Administrative Code of 1987, provides: SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; xxx xxx x x x (emphasis supplied)

Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC:[8] From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. x x x (emphasis supplied)

Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. [9]Thus, a person occupying the position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the

Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility.[10] To classify the positions of Director II in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman as covered by the CES and require appointees thereto to acquire CES or CSE[11] eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code. [12] Section 6, Article XI of the Constitution provides: Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.

This is complemented by RA[13] 6770, otherwise known as The Ombudsman Act of 1989. Section 11 thereof states: Sec. 11. Structural Organization. The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its power and functions shall be vested in the Ombudsman, who shall have supervision and control of the said Office. (1) The Office of the Ombudsman may organize such directorates for administration and allied services as may be necessary for the effective discharge of its functions. Those appointed as directors or heads shall have the rank and salary of line bureau directors. xxx xxx xxx

(5) The position structure and staffing pattern of the Office of the Ombudsman, including the Office of the Special Prosecutor, shall be approved and prescribed by the Ombudsman. The Ombudsman shall appoint all officers and employees of the Office of the Special Prosecutor, in accordance with the civil service law, rules and regulations. (emphasis supplied)

Under the Constitution, the Office of the Ombudsman is an independent body. [14] As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies.[15] This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office. To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern.

Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant. Qualification standards are used as guides in appointment and other personnel actions, in determining training needs and as aid in the inspection and audit of the personnel work programs. [16] They are intimately connected to the power to appoint as well as to the power of administrative supervision. Thus, as a corollary to the Ombudsmans appointing and supervisory powers, he possesses the authority to establish reasonable qualification standards for the personnel of the Office of the Ombudsman. In this connection, Book V, Title I, Subtitle A, Chapter 5, Section 22 [17] of the Administrative Code provides: SEC. 22. Qualification Standards. (1) A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. The degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular position. Qualification standards shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit of the agencies personnel work programs. It shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service. (2) The establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency , with the assistance and approval of the Civil Service Commission and in consultation with the Wage and Position Classification Office. (emphasis supplied)

Since the responsibility for the establishment, administration and maintenance of qualification standards lies with the concerned department or agency, the role of the CSC is limited to assisting the department or agency with respect to these qualification standards and approving them. The CSC cannot substitute its own standards for those of the department or agency, specially in a case like this in which an independent constitutional body is involved. Accordingly, the petition is hereby GRANTED and Opinion No. 44, s. 2004 dated January 23, 2004 of the Civil Service Commission is SET ASIDE.

The Civil Service Commission is hereby ordered to approve the amended qualification standards for Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman. No costs. NATIONAL TRANSMISSION CORPORATION, Petitioner, Present: G.R. No. 179255

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, - versus AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR., VENUSTO D. HAMOY, JR., Respondent. NACHURA, LEONARDO DE CASTRO, and BRION, and PERALTA, JJ.

Promulgated:

April 2, 2009

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

DECISION

TINGA, J.:

This treats of the petition for review of the decision[1] and resolution[2] of the Court of Appeals dated 30 May 2007 and 7 August 2007, respectively, in CA-G.R. SP No. 96837 entitled, Venusto D. Hamoy, Jr. v. National Transmission Corporation & Civil Service Commission , ordering the immediate return of Venusto Hamoy, Jr. to his original position as Vice-President for VisMin Operations & Maintenance.

The antecedents follow.

The National Transmission Corporation (petitioner), through Resolution No. TC 2003-007[3] dated 5 February 2003, appointed Venusto D. Hamoy, Jr. (respondent) as Vice President under Item No. 700010CY2003 VisMin Operations & Maintenance. Accordingly, petitioners President and Chief Executive Officer (CEO) Alan Ortiz (Ortiz) issued on 1 March 2003 Civil Service Commission (CSC) Form No. 33 which states that respondent has been appointed (VICE-PRESIDENT JG-18) VICE-PRESIDENT SG-28 with PERMANENT (status) at the National Transmission Corporation. [4] Respondent assumed his duties on 1 March 2003.

On 19 January 2004, Ortiz issued Office Order No. 2004-173 detailing respondent to petitioners Power Center-Diliman, under the Office of the President and CEO, to handle Special Projects. [5] Office [6] Order No. 2004-173 was later amended by Office Order No. 2004-1229 under which Ortiz assigned respondent additional duties of providing over-all supervision, monitoring and control of all activities related to the sale of p etitioners sub-transmission assets and placed under his supervision certain personnel of the Sub-Transmission Divestment Department.

In a memorandum dated 24 January 2005 from petitioners Human Resources Department, respondent was notified of the impending expiration of the temporary appointment of some of petitioners key officials and the fact that he was being considered for one of the positions to be vacated.[7] Yet on 15 February 2005, Office Order No. 2005-0256 was issued designating respondent as Officer-InCharge (OIC) of the Power Systems Reliability Group (PSRG), concurrent with his duties as Vice President for Special Projects.[8]

On 16 February 2005, respondent wrote Ortiz, asking that he be returned to his original assignment as Vice President of VisMin Operations & Maintenance. He reasoned that his detail under Office Orders No. 2004-173 and No. 2004-1229 already exceeded one (1) year, and that his designation under Office Order No. 2005-0256 violated Section 2 of CSC Memorandum Circular No. 21, s. 2002 because he did not give his consent thereto.[9] However, on the same date, Office Order No. 2005-0284 was issued superseding Office Order No. 2004-173 and amending Office Order No. 2005-0256 , the

latter order stating that respondent was designated as OIC of the Power Systems Reliability Group (PSRG).[10] Respondent was thus constrained to write another letter to Ortiz, requesting reconsideration of Office Order No. 2005-0284 and reiterating the reasons he cited in his previous letter.[11]

On 1 March 2005, Ortiz issued a memorandum informing respondent that his detail to the Presidents Office was no longer in effect and, i n view of the vacancy created by the expiration of the temporary appointment of the Vice President of the PSRG, respondent was designated as its OIC. He further stated that the matter of reassignment would be formally raised at the Board meeting and, should the Board confirm it, a corresponding Office Order would be issued reassigning respondent as head of the PSRG.[12] On 27 April 2005, the Board issued Resolution No. TC 2005-018,[13] approving and confirming respondents reassignment to PSRG, and announcing the opening of selection for the position of Vice President for VisMin Operations & Maintenance.

Respondent appealed to the CSC, praying for the annulment of Resolution No. TC 2005-018 and Office Order No. 2005-0284 on the ground that the reassignment violated his security of [14] tenure.

In Resolution No. 061030 dated 8 June 2006,[15] the CSC denied respondents appeal. It found that respondent failed to show that his reassignment was tainted with abuse of discretion. According to the CSC, the position to which respondent was appointed was classified as a third-level position, which was not station-specific, and thus he could be reassigned or transferred from one organizational unit to another within the same agency, without violating his right to security of tenure.[16] Moreover, the CSC ruled that his detail did not exceed the one-year period, as it was superseded initially by his reassignment; and that his designation and reassignment had both been done to meet the needs of the company, without making him suffer reduction in salary status and rank. Respondent sought reconsideration of the decision, but his motion was denied by the CSC through Resolution No. 061840 promulgated on 16 October 2006.[17]

Respondent brought the matter to the Court of Appeals (CA) which disagreed with the findings of the CSC. Citing the Administrative Code,[18] Home Insurance Guaranty Corporation v. Civil Service Commission,[19] and Office of the Ombudsman v. Civil Service Commission,[20] the Court of Appeals held that only presidential appointees belong to the third-level or career executive service. Thus, respondent, having been appointed by petitioners president and not the President of the Philippines, occupies a second- level position only.[21] The appellate court also ruled that respondents position was stationspecific, despite the absence of a place of assignment in CSC Form No. 33, since the said form specifically referred to petitioners Board Resolution No. TC 2003-2007, which indicated that his appointment is to the position of Vice President under Item No. 700010 -VisMin Operations & Maintenance. The position of respondent being station-specific, his reassignment could not exceed one (1) year per Memorandum Circular No. 2.[22]

The Court of Appeals also discussed the various personnel movements effected on respondent. Thus, when he reported to his new assignm ent as Vice President of Special Projects per Office Order No. 2004-173, as amended by Office Order No. 2004-1229 , such movement was a reassignment and not a mere detail, since there was a movement from one organizational unit to another within the same department or agency; that is, from his station at the office of the Vice President VisMin Operations & Maintenance to the Office of the President and CEO. Respondent remained in his place of reassignment beyond 16 February 2005 because he was designated additional duties, virtually extending his reassignment beyond the one-year period. The third personnel movement on 16 February 2005, as OIC of the PSRG, was also a nullity because it extended further his original reassignment, and worse, the appointment was made despite respondents vigorous objection, said the Court of Appeals.[23] Finally, it concluded that while respondents position, rank and salary had remained unchanged throughout the said movements, he suffered much financial deprivation, considering that he had to spend for his own travel expenses to Cebu City to be with his family.[24]

Petitioner filed a motion for reconsideration, but its motion was denied on 7 August 2007 for lack of merit.
[25]

Before this Court, petitioner imputes the following errors to the Court of Appeals, thus:

a.

in classifying the position held by Hamoy, Jr. as TransCo Vice President as a mere second level and not a third level position;

b.

in declaring that presidential appointment is a requirement for a position to be classified as belonging to the third level thus disregarding the clear provisions of CSC Memorandum Circular No. 21, series of 1994 and prevailing jurisprudence;

c.

in holding that Hamoy, Jr. was appointed to a station-specific position;

d.

in classifying the first movement of Hamoy from his original assignment in the VisMin Operations and Maintenance to the office of the president as a reassignment and not a detail;

e.

in declaring that Hamoys reassignment was not made in accordance with civil service laws, rules, and regulations.[26]

On the other hand, respondent maintains that he was appointed to a second-level position and, thus, he is not under the Career Executive Service (CES). He adds that he was, in fact, appointed to a station-specific position. Moreover, he claims that his reassignments were made in violation of the rules and constitute constructive dismissal.[27]

The petition has no merit.

In arguing that respondent belongs to the CES, petitioner invokes Memorandum Circular No. 21, which reads in part:

1.

Positions covered by the Career Executive Service

(a) x x x

(b) In addition to the above identified positions and other positions of the same category which had been previously classified and included in the CES, all other third level positions of equivalent category in all branches and instrumentalities of the national government, including government owned and controlled corporations with original charters are embraced within the Career Executive Service provided that they meet the following criteria:

1. 2. 3.

the position is a career position; the position is above division chief level; the duties and responsibilities of the position require the performance of executive and managerial functions.

Petitioner also cites Caringal v. Philippine Charity Sweepstakes Office (PCSO)[28] and Erasmo v. Home Insurance Guaranty Corporation[29] to show that a presidential appointment is not required before a position in a government corporation is classified as included in the CES. [30] We are not convinced.

The Administrative Code specifies the positions in the Civil Service as follows:

Section 8. Classes of positions in the Career Service.( 1) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:

(a)

The first level shall include clerical, trades, crafts and custodial service positions which involve non-professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; The second level shall include professional, technical, and scientific positions which involve professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief levels; and The third level shall cover positions in the Career Executive Service. [31]

(b)

(c)

Positions in the CES under the Administrative Code include those of Undersecretary, Assistant Secretary, Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President.[32] Simply put, third-level positions in the Civil Service are only those belonging to the Career Executive Service, or those appointed by the President of the Philippines. This was the same ruling handed down by the Court in Office of the Ombudsman v. Civil Service Commission,[33] wherein the Court declared that the CES covers presidential appointees only.

In the said case, the CSC disapproved the Office of the Ombudsmans (OMBs) request for approval of the proposed qualification standards for the Director II position in the Central Administrative Service and Finance Management Service. The OMB proposed that said po sition required Career Service Professional/Relevant Eligibility for Second Level position. According to the CSC, the Director II position belonged to third-level eligibility and is thus covered by the Career Executive Service. Settling the issue, this Court ruled thus:

Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC:

From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. xxx (emphasis supplied)

Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Thus, a person occupying the Position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility.[34]

Respondent was appointed Vice-President of VisMin Operations & Maintenance by Transco President and CEO Alan Ortiz, and not by the President of the Republic. On this basis alone, respondent cannot be considered as part of the CES.

Caringal and Erasmo cited by petitioner are not in point. There, the Court ruled that appointees to CES positions who do not possess the required CES eligibility do not enjoy security of tenure. More importantly, far from holding that presidential appointment is not required of a position to be included in the CES, we learn from Caringal that the appointment by the President completes the attainment of the CES rank, thus:

Appointment to CES Rank

Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the recommendation of the Board. This process completes the officials membership in the CES and most importantly, confers on him security of tenure in the CES.

To classify other positions not included in the above enumeration as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for non- CES positions in the President, in violation of the Constitution; or (2) including in the CES a position not held by presidential appointee, contrary to the Administrative Code[35]

Interestingly, on 9 April 2008, CSC Acting Memorandum No. 27, s. 2008, which states in part:

Chairman

Cesar

D.

Buenaflor

issued Office

For years, the Commission has promulgated several policies and issuances identifying positions in the Career Service above Division Chief Level performing executive and managerial functions as belonging to the Third Level covered by the Career Executive Service (CES) and those outside the CES, thus, requiring third level eligibility for purposes of permanent appointment and security of tenure.

However, the issue as to whether a particular position belongs to the Third Level has been settled by jurisprudence enshrined in Home Insurance and Guaranty Corporation v. Civil Service Commission, G.R. No. 95450 dated March 19, 1993 and Office of the Ombudsman (OMB) v. Civil Service Commission ; G.R. No. 162215 dated July 30, 2007, where the Honorable Supreme Court ruled citing the provision of Section 7(3) Chapter 2, Title I-A, Book V of Administrative Code of 1987, that the Third Level shall cover positions in the Career Executive Service (CES). Positions in the Career Executive Service consists of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board (CESB), all of whom are appointed by the President. To classify other positions not included in the above enumeration as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either: in (1) vesting the appointing power for non-CES positions in the President, in violation of the Constitution; or, (2) including in the CES a position not held by presidential appointee, contrary to the Administrative Code.

xxx

While the above-cited ruling of the Supreme Court refer to particular positions in the OMB and HIGC, it is clear, however, that the intention was to make the doctrine enunciated therein applicable to similar and comparable positions in the bureaucracy. To reiterate, the Third Level covers only the positions in the CES as enumerated in the Administrative Code of 1987 and those identified by the CESB as of equivalent rank, all of whom are appointed by the President of the Philippines. Consequently, the doctrine enshrined in these Supreme Court decisions has ipso factonullified all resolutions, qualification standards, pronouncements and/or issuances of the Commission insofar as the requirement if third level eligibility to non-CES positions is concerned.

In view thereof, OM No. 6, series of 2008 and all other issuances of the Commission inconsistent with the afore-stated law and jurisprudence are likewise deemed repealed, superseded and abandoned. x x x[36] (Emphasis supplied)

Thus, petitioner can no longer invoke Section 1(b) of Memorandum Circular (MC) No. 21, it being inconsistent with the afore-quoted Office Memorandum and thus deemed repealed by no less than the CSC itself.

Having settled the nature of respondents position, we now determine the validity of respondents reassignment from Vice President for VisMin Operations & Maintenance to Vice President of Special Projects under Office Order No. 2004-173, as amended by Office Order No. 2004-1229 .

The Revised Rules on Reassignment[37] provides in part:

Sec. 6. x x x. Reassignment shall be governed by the following rules:

1. These rules shall apply only to employees appointed to first and second level positions in the career and non-career services. Reassignment of third level appointees is governed by the provisions of Presidential Decree No. 1.

2. Personnel movements involving transfer or detail reassignment since they are governed by separate rules.

should

not

confused

with

3. Reassignment of employees with station-specific place of work indicated in their respective appointments shall be allowed only for a maximum period of one (1) year. An appointment is considered station-specific when the particular office or station where the position is located is specifically indicated on the face of the appointment paper. Station-specific appointment does not refer to a specified plantilla item number since it is used for purposes of identifying the particular position to be filled or occupied by the employee.

4. If appointment is not station-specific, the one-year maximum shall not apply. Thus, reassignment of employees whose appointments do not specifically indicate the particular office or place of work has no definite period unless otherwise revoked or recalled by the Head of Agency, the Civil Service Commission or a competent court.

5. If an appointment is not station-specific, reassignment to an organizational unit within the same building or from one building to another or contiguous to each other in one work area or compound is allowed. Organizational unit refers to sections, divisions, and departments within an organization.

6. Reassignment outside geographical location if with consent shall have no limit. However, if it is without consent, reassignment shall be for one (1) year only. Reassignment outside of geographical location may be from one Regional Office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.

7. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or if it constitutes constructive dismissal x x x

a)

Reassignment of an employee to perform duties and responsibilities inconsistent with the duties and responsibilities of his/her position such as from a position of dignity to a more servile or menial job;

b)

Reassignment to an office not in the existing organizational structure;

c)

Reassignment to an existing office but the employee is not given any definite duties and responsibilities;

d)

Reassignment that will cause significant financial dislocation or will cause difficulty or hardship on the part of the employee because of geographical location; and

e)

Reassignment that is done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.[38] [Emphasis supplied).

Petitioner claims that respondent was not appointed to a station-specific position because his appointment paper, CS Form No. 33, does not indicate any specific work station.[39] This being the case, he is entitled to security of tenure with respect only to the position of Vice President, and he may be reassigned from his original assignment in the VisMin Operations & Maintenance to his new assignment in the Power Systems Reliability Group.[40] On the other hand, the Court of Appeals, relying on Board Resolution No. TC 2003-2007, which indicated that respondents appointment was to the position of Vice President under Item No. 700010-VisMin Operations and Maintenance, held that his appointment was station-specific.[41]

We do not agree with petitioner. It is not disputed that an appointment is considered stationspecific when the particular office or station where the position is located is specifically indicated on the face of the letter of appointment (Form No. 33). In this case, the letter of appointment itself makes specific reference to a Board Resolution, by virtue of which respondent was appointed as Vice President for VisMin Operations and Maintenance, thereby rendering the Board Resolution an integral part of the letter of appointment. The letter of appointment states:

Republika ng Pilipinas NATIONAL TRANSMISSION CORPORATION Diliman, Lungsod ng Quezon

MR. VENUSTO D. HAMOY, JR. National Transmission Corporation Diliman, Quezon City

MR. HAMOY:

Kayo ay nahirang na (VICE PRESIDENT JG-18) (VICE PRESIDENT SG-28) na may katayuang PERMANENT sa Pambansang Korporasyon sa Transmisyon sa pasahod na EIGHT HUNDRED FIFTY SIX THOUSAND THREE HUNDRED TWENTY PESOS ( P856,320) piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.

Ang appointment na ito ay REEMPLOYMENT PURSUANT TO TRANSCO BOARD RES. NO. 2003-07 DATED 2/5/03 bilang kapalit ni N/A na N/A at ayon sa Plantilya Item Blg. 7000010 CY2003, Pahina ______.[42] (Emphasis supplied)

Sumasainyo,

ALAN T. ORTIZ, Ph.D. President CEO Puno ng Tanggapan &

MAR 01 2003 Petsa ng Pagpirma

The pertinent portions of Board Resolution No. TC 2003-007 read, thus:

RESOLUTION NO. TC 2003-007

xxx

WHEREAS, after careful evaluation and deliberation of the qualifications of the applicants consistent with the Boards Guidelines, the following executives are hereby appointed as follows:

a)

xxx

xxx

j). Item No. 700010-VisMin Operations &MaintenanceMr. Venusto D. Hamoy, Jr.

APPROVED supplied)

AND

CONFIRMED, February

5,

2003.[43] (Emphasis

In other words, it is clear from the filled-up Form No. 33 or the letter of appointment that the appointment was issued pursuant to Board Resolution No. TC 2003-007. The appointment papers explicit reference to the Board Resolution, which in turn cited Item No. 700010 -VisMin Operations & Maintenance, indicated that respondents work station was the VisMin Operations & Maintenance. As VisMin stands for the Visayas-Mindanao, the Vice-President for VisMin Operations, who is respondent, necessarily has to hold office in Cebu where petitioner has offices for its Visayas-Mindanao Operations.

Having been appointed to a station-specific position, whatever reassignment may be extended to respondent cannot exceed one year.

A reassignment is a movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment. A detail, on the other hand, is a movement from one agency to another.[44] Respondents movement from the Office of the Vice-President Vis-Min Operations & Management in January of 2004 to the Office of the President and CEO in Diliman, Quezon City to handle Special Projects on 16 February 2004 was a reassignment, as he was moved from one department to another within the same agency. Necessarily therefore,

such movement should last only until 16 February 2005, or one year thereafter. However, respondent was designated additional duties on 16 February 2005, which further extended his stay in the Diliman office. When respondent was designated as OIC of the PSRG, his reassignment was extended once more. In addition, the reassignments were made without his consent, nay, despite his objections. These personnel movements are clear violations of the Revised Rules.

All told, the Court finds no reason to overturn the Decision of the Court of Appeals.

WHEREFORE, the petition is DENIED. The decision and resolution of the Court of Appeals dated 30 May 2007 and 7 August 2007, respectively, are AFFIRMED. Costs against the petitioner.

SO ORDERED.

ARTURO M. DE CASTRO, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents. x-----------------------x JAIME N. SORIANO, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA,

G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

A.M. No. 10-2-5-SC

Petitioner, x-----------------------x JOHN G. PERALTA, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC). Respondent. x - - - - - - - - - - - - - - - - - - - - - - - -x PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLES LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;

G.R. No. 191149

WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBINGJAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCOOLEDAN; MA. VERENA KASILAGVILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON. Intervenors. x - - - - - - - - - - - - - - - - - - - - - - - -x ATTY. AMADOR Z. TOLENTINO, JR., (IBP GovernorSouthern Luzon), and ATTY. ROLAND B. INTING (IBP GovernorEastern Visayas), Petitioners, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

G.R. No. 191342

- versus -

JUDICIAL AND BAR COUNCIL and HER G.R. No. 191420 EXCELLENCY GLORIA MACAPAGALARROYO, Present: Respondents. PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN,

DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: March 17, 2010 x-----------------------------------------------------------------------------------------x DECISION BERSAMIN, J.: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC? Precs of the Consolidated Cases Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil actions for certiorari andmandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice. In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice. In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department. In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary. In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from

submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most important appointment. A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor.[8] He opines that the JBC is thereby arrogating unto itself the judicial function that is not conferred upon it by the Constitution, which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution. As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a final and definitive resolution of the constitutional questions raised above would diffuse ( sic) the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the political system.[9] In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the Presidents authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied inflammatory legal debate on t he constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people, thereby fashioning transcendental questions or issues affecting the JBCs proper exercise of its principal function of recommending appointees to the Judiciary by submitting only to the President (not to the next President) a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy from which the members of the Supreme Court and judges of the lower courts may be appointed.[11] PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the strange and exotic Decision of the Court en banc.[12]

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution. [13] The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the application s to the position, and is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010, which only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments. [14] Antecedents These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,[15] which reads: The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates. As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter. 18 January 2010.

(sgd.) MA. LUISA D. VILLARAMA Clerk of Court & Ex-Officio Secretary Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,[16]viz: The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO. Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx: The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.[17] Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.[18] Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their nominations were Atty. Henry Villarica ( via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. ( via telephone conversation with the Executive Officer of the JBC onFebruary 8, 2010).[20] The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman). [21] In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.[22] Issues Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter to avoid any possible polemics concerning the matter, but he opines that the polemics leading to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in regard to the current controversy, and that unless put to a halt, and this may only b e achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired. [23] Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.

G.R. No. 191002 a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period? Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010? G.R. No. 191032 a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc? G.R. No. 191057 a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department?

b.

b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition? c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010? A. M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution? b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149 a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo? G.R. No. 191342 a. Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term? Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBCs illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?

b.

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342. On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, including the interview of the constitutional experts, as may be needed.[24] It stated:[25] Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments two (2) months immediately before the next presidential elections and up to the end of his term and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines. 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010. The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBCs function to recommend is a continuing process, which does not begin with each vacancy or end with each nomination, because the goal is to submit the list of nominees to Malacaang on the very day the vacancy arises;[26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that

its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; [29] and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBCs determination of who it nominates to the President is an exercise of a discretionary duty.[30] The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; [31] that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa; [32] that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its independence from political vicissitudes and its insulation from political pressures,[33] such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice. The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be the imperative need for an appointment during the period of the ban, like when the membership of the Supreme Court should be so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided;[34] and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.[35] Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: ( a) a deluge of cases involving sensitive political issues is quite expected;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC);[37] (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno;[38] and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.[39]

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40] (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); (d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of Peoples Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); (f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); (g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); (h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.); (i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castros petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castros fears are un founded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation. ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition. Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castros prayer to compel the submission of nom inees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy. All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the

submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSAs petition; that th e role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired. Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a quasijudicial body has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception. Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law. The main question presented in all the filings herein because it involves two seemingly conflicting provisions of the Constitution imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the everpresent need, first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing Presidents power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary. Thus, we resolve. Ruling of the Court Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi. Black defines locus standi as a right of appearance in a court of justice on a given question.[41] In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc .:[42]

The question on legal standing is whether such parties have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[43] Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[44] It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi.There, the Court held that the person who would assail the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. Vera was followed in Custodio v. President of the Senate,[46] Manila Race Horse Trainers Association v. De la Fuente,[47] Anti-Chinese League of the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49] Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when the cases had transcendental importance. Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51] In the 1975 decision in Aquino v. Commission on Elections ,[52] this Court decided to resolve the issues raised by the petition due to their far-reaching implications, even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.[53] However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. MacapagalArroyo,[54] the Court aptly explains why: Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[56] In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve unnecessary, if not, illegal disbursement of public funds. [59] PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.[60] In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines. The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for [a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBCs function in submitting the list of nominees is well within the conc ern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution. They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession. [61] The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones personal interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the successor

of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country. In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.[62] Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v.Philippine International Air Terminals Co., Inc .,[63] we pointed out: Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.[64] Justiciability Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President. Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review. Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review. Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature. Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are matters of paramount and transcendental importance to the bench, bar and general public; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should rule for the guidance of the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight

order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy. We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the interview of constitutional experts, as may be needed. A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy. The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle with finality the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process. We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.[65]Herein, the facts are not in doubt, for only legal issues remain. Substantive Merits I Prohibition under Section 15, Article VII does not apply

to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments , except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary.

The Court agrees with the submission. First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech: We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within90 days from the occurrence of the vacancy. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.

Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail. Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz: V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy must be filled within two months from the date that the vacancy occurs. His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provi sion (anent the Courts membership) of the same mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence. In this connection, it may be pointed out that that instruction that any vacancy shall be filled within ninety days (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that a President or Acting President shall not make appointments The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE

APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a uniform rule for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power two months immediately before the next presidential elections up to the end of his term - was approved without discussion.[68] However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, a command [to the President] to fill up any vacancy therein within 90 da ys from its occurrence, which even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz: MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11. MR. CONCEPCION. Yes. MR. DE CASTRO. And the second sentence of this subsection reads: Any vacancy shall be filled within ninety days from the occurrence thereof. MR. CONCEPCION. That is right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy? MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement .[70] Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced[71] should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII. How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:[72] xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have

seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rules application, largely because of the principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.[73] Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed.[74] It will not do to merely distinguishValenzuela from these cases, for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable. We reverse Valenzuela. Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by anoutgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that: xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: xxx The second type of appointments prohibited by Section 15, Article VII consists of the so-called midnight appointments. In Aytona v. Castillo, it was held that after the

proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President. Said the Court: The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments. As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees qualifications, can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only midnight appointments those made obviously for partisan reasons as shown by their number and the time of their making but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII allowing appointments to be made during the period of the ban therein provided is much narrower than that recognized inAytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Courts view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.[76]

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer bemidnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration

out of a desire to subvert the policies of the incoming President or for partisanship, [77] the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory constru ction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.[78] Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment. Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional) Commissions records, th e election ban had no application to appointments to the Court of Appeals.[79] This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.[80] The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the Presidents power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado. Fourth. Of the 23 sections in Article VII, three ( i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President. Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President,[81] and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will. [82] The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment. Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet,

because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.[83] Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. [84] It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court. The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment. Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because

they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts. Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC. Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice? The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list. II The Judiciary Act of 1948 The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states: Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed . Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now.

We cannot agree with the posture. A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected. The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President. Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows: 1. 2. 3. 4. 5. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day; When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day; When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991; When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998; When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and

6.

When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.[85] III Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President? Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.[86] It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.[87] For mandamus to lie, the following requisites must be complied with: ( a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary: Section 8. xxx (5) The Council shall have appointees to the Judiciary. xxx the principal function of recommending

Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from submission of the list, in the case of the lower courts. The 90-day period is directed at the President, at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in Supreme Court before the occurrence of the vacancy.

the the not the

Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President. The distinction between a ministerial act and a discretionary one has been delineated in the following manner: The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.

IV Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit. On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on that issue.

WHEREFORE, the Court: 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;

2. merit; and 3. Council:

Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of

Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno byMay 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision. SO ORDERED. DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, G.R. No. 175352 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, - versus CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, RICHARD J. GORDON, Respondent. LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ.

Promulgated: July 15, 2009

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

DECISION

CARPIO, J.:

The Case

This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his seat in the Senate.

The Facts

Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners) filed with this Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate. Petitioners are officers of the Board of Directors of the Quezon City Red Cross Chapter while respondent is Chairman of the Philippine National Red Cross (PNRC) Board of Governors.

During respondents incumbency as a member of the Senate of the Philippines, [1] he was elected Chairman of the PNRC during the 23 February 2006 meeting of the PNRC Board of Governors. Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors, respondent has ceased to be a member of the Senate as provided in Section 13, Article VI of the Constitution, which reads:

SEC. 13. No Senator or Member of the House of Representatives may 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, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Petitioners cite Camporedondo v. NLRC,[2] which held that the PNRC is a government-owned or controlled corporation. Petitioners claim that in accepting and holding the position of Chairman of the PNRC Board of Governors, respondent has automatically forfeited his seat in the Senate, pursuant to Flores v. Drilon,[3] which held that incumbent national legislators lose their elective posts upon their appointment to another government office.

In his Comment, respondent asserts that petitioners have no standing to file this petition which appears to be an action for quo warranto, since the petition alleges that respondent committed an act which, by provision of law, constitutes a ground for forfeiture of his public office. Petitioners do not claim

to be entitled to the Senate office of respondent. Under Section 5, Rule 66 of the Rules of Civil Procedure, only a person claiming to be entitled to a public office usurped or unlawfully held by another may bring an action for quo warranto in his own name. If the petition is one for quo warranto, it is already barred by prescription since under Section 11, Rule 66 of the Rules of Civil Procedure, the action should be commenced within one year after the cause of the public officers forfeiture of office. In this case, respondent has been working as a Red Cross volunteer for the past 40 years. Respondent was already Chairman of the PNRC Board of Governors when he was elected Senator in May 2004, having been elected Chairman in 2003 and re-elected in 2005.

Respondent contends that even if the present petition is treated as a taxpayers suit, petitioners cannot be allowed to raise a constitutional question in the absence of any claim that they suffered some actual damage or threatened injury as a result of the allegedly illegal act of respondent. Furthermore, taxpayers are allowed to sue only when there is a claim of illegal disbursement of public funds, or that public money is being diverted to any improper purpose, or where petitioners seek to restrain respondent from enforcing an invalid law that results in wastage of public funds.

Respondent also maintains that if the petition is treated as one for declaratory relief, this Court would have no jurisdiction since original jurisdiction for declaratory relief lies with the Regional Trial Court.

Respondent further insists that the PNRC is not a government-owned or controlled corporation and that the prohibition under Section 13, Article VI of the Constitution does not apply in the present case since volunteer service to the PNRC is neither an office nor an employment.

In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an action for declaratory relief. Petitioners maintain that the present petition is a taxpayers suit questioning the unlawful disbursement of funds, considering that respondent has been drawing his salaries and other compensation as a Senator even if he is no longer entitled to his office. Petitioners point out that this Court has jurisdiction over this petition since it involves a legal or constitutional issue which is of transcendental importance.

The Issues

Petitioners raise the following issues:

1. Whether the Philippine National Red Cross (PNRC) is a governmentcontrolled corporation;

owned or

2. Whether Section 13, Article VI of the Philippine Constitution applies to the case of respondent who is Chairman of the PNRC and at the same time a Member of the Senate;

3.

Whether respondent should be automatically removed as a Senator pursuant to Section 13, Article VI of the Philippine Constitution; and

4.

Whether petitioners may legally institute this petition against respondent. [4]

The substantial issue boils down to whether the office of the PNRC Chairman is a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the Constitution.

The Courts Ruling

We find the petition without merit.

Petitioners Have No Standing to File this Petition

A careful reading of the petition reveals that it is an action for quo warranto. Section 1, Rule 66 of the Rules of Court provides:

Section 1. Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against : (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which by provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (Emphasis supplied)

Petitioners allege in their petition that:

4. Respondent became the Chairman of the PNRC when he was elected as such during the First Regular Luncheon-Meeting of the Board of Governors of the PNRC held on February 23, 2006, the minutes of which is hereto attached and made integral part hereof as Annex A. 5. Respondent was elected as Chairman of the PNRC Board of Governors, during his incumbency as a Member of the House of Senate of the Congress of the Philippines, having been elected as such during the national elections last May 2004.

6. Since his election as Chairman of the PNRC Board of Governors, which position he duly accepted, respondent has been exercising the powers and discharging the functions and duties of said office, despite the fact that he is still a senator. 7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of the Board of Governors of the PNRC, respondent has ceased to be a Member of the House of Senate as provided in Section 13, Article VI of the Philippine Constitution, x x x xxxx 10. It is respectfully submitted that in accepting the position of Chairman of the Board of Governors of the PNRC on February 23, 2006, respondent has automatically forfeited his seat in the House of Senate and, therefore, has long ceased to be a Senator, pursuant to the ruling of this Honorable Court in the case of FLORES, ET AL. VS. DRILON AND GORDON, G.R. No. 104732, x x x 11. Despite the fact that he is no longer a senator, respondent continues to act as such and still performs the powers, functions and duties of a senator, contrary to the constitution, law and jurisprudence. 12. Unless restrained, therefore, respondent will continue to falsely act and represent himself as a senator or member of the House of Senate, collecting the salaries, emoluments and other compensations, benefits and privileges appertaining and due only to the legitimate senators, to the damage, great and irreparable injury of the Government and the Filipino people.[5] (Emphasis supplied)

Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC Board of Governors, respondent has automatically forfeited his seat in the Senate. In short, petitioners filed an action for usurpation of public office against respondent, a public officer who allegedly committed an act which constitutes a ground for the forfeiture of his public office. Clearly, such an action is for quo warranto, specifically under Section 1(b), Rule 66 of the Rules of Court.

Quo warranto is generally commenced by the Government as the proper party plaintiff. However, under Section 5, Rule 66 of the Rules of Court, an individual may commence such an action if he claims to be entitled to the public office allegedly usurped by another, in which case he can bring the action in his own name. The person instituting quo warranto proceedings in his own behalf must claim and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage. [6] In

the present case, petitioners do not claim to be entitled to the Senate office of respondent. Clearly, petitioners have no standing to file the present petition.

Even if the Court disregards the infirmities of the petition and treats it as a taxpayers suit, the petition would still fail on the merits.

PNRC is a Private Organization Performing Public Functions

On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95,[7] otherwise known as the PNRC Charter. The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without consideration of nationality, race, religion, gender, social status, or political affiliation. [8] The PNRC provides six major services: Blood Services, Disaster Management, Safety Services, Community Health and Nursing, Social Services and Voluntary Service.[9]

The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary organization for the purpose contemplated in the Geneva Convention of 27 July 1929. [10] The Whereas clauses of the PNRC Charter read:

WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention by which the nations of the world were invited to join together in diminishing, so far lies within their power, the evils inherent in war; WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent revision of said convention, namely the Convention of Geneva of July 29 [sic], 1929 for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (referred to in this Charter as the Geneva Red Cross Convention); WHEREAS, the Geneva Red Cross Convention envisages the establishment in each country of a voluntary organization to assist in caring for the wounded and sick of the armed forces and to furnish supplies for that purpose; WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946 and proclaimed its adherence to the Geneva Red Cross Convention on February 14, 1947, and by that action indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary organization for that purpose as contemplated by the Geneva Red Cross Convention; WHEREAS, there existed in the Philippines since 1917 a Charter of the American National Red Cross which must be terminated in view of the independence of the Philippines; and WHEREAS, the volunteer organizations established in the other countries which have ratified or adhered to the Geneva Red Cross Convention assist in promoting the health and welfare of their people in peace and in war, and through their mutual assistance and cooperation directly and through their international organizations promote better understanding and sympathy among the peoples of the world. (Emphasis supplied)

The PNRC is a member National Society of the International Red Cross and Red Crescent Movement (Movement), which is composed of the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (International Federation), and the National Red Cross and Red Crescent Societies (National Societies). The Movement is united and guided by its seven Fundamental Principles:

1. HUMANITY The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors, in its international and national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples. 2. IMPARTIALITY It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavors to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress. 3. NEUTRALITY In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature. INDEPENDENCE The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement. VOLUNTARY SERVICE It is a voluntary relief movement not prompted in any manner by desire for gain.

4.

5.

6. UNITY There can be only one Red Cross or one Red Crescent Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory. 7. UNIVERSALITY The International Red Cross and Red Crescent Movement, in which all Societies have equal status and share equal responsibilities and duties in helping each other, is worldwide. (Emphasis supplied)

The Fundamental Principles provide a universal standard of reference for all members of Movement. The PNRC, as a member National Society of the Movement, has the duty to uphold Fundamental Principles and ideals of the Movement. In order to be recognized as a National Society, PNRC has to be autonomous and must operate in conformity with the Fundamental Principles of Movement.[11]

the the the the

The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers during international or internal armed conflicts, the PNRC volunteers must not be seen as

belonging to any side of the armed conflict. In the Philippines where there is a communist insurgency and a Muslim separatist rebellion, the PNRC cannot be seen as government-owned or controlled, and neither can the PNRC volunteers be identified as government personnel or as instruments of government policy. Otherwise, the insurgents or separatists will treat PNRC volunteers as enemies when the volunteers tend to the wounded in the battlefield or the displaced civilians in conflict areas.

Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and independent in order to conduct its activities in accordance with the Fundamental Principles. The PNRC must not appear to be an instrument or agency that implements government policy; otherwise, it cannot merit the trust of all and cannot effectively carry out its mission as a National Red Cross Society. [12] It is imperative that the PNRC must be autonomous, neutral, and independent in relation to the State.

To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be owned or controlled by the government. Indeed, the Philippine government does not own the PNRC. The PNRC does not have government assets and does not receive any appropriation from the Philippine Congress. [13] The PNRC is financed primarily by contributions from private individuals and private entities obtained through solicitation campaigns organized by its Board of Governors, as provided under Section 11 of the PNRC Charter:

SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be financed primarily by contributions obtained through solicitation campaigns throughout the year which shall be organized by the Board of Governors and conducted by the Chapters in their respective jurisdictions. These fund raising campaigns shall be conducted independently of other fund drives by other organizations. (Emphasis supplied)

The government does not control the PNRC. Under the PNRC Charter, as amended, only six of the thirty members of the PNRC Board of Governors are appointed by the President of the Philippines. Thus, twenty-four members, or four-fifths (4/5), of the PNRC Board of Governors are not appointed by the President. Section 6 of the PNRC Charter, as amended, provides:

SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the remaining six shall be selected by the twenty-four members of the Board already chosen. x x x.

Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the chapter delegates of the PNRC, and six are elected by the twenty-four members already chosen a select group where the private sector members have three-fourths majority. Clearly, an overwhelming majority of fourfifths of the PNRC Board are elected or chosen by the private sector members of the PNRC .

The PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects the PNRC Chairman and all other officers of the PNRC. The incumbent Chairman of PNRC, respondent Senator Gordon, was elected, as all PNRC Chairmen are elected, by a private sector-controlled PNRC Board four-fifths of whom are private sector members of the PNRC. The PNRC Chairman is not appointed by the President or by any subordinate government official.

Under Section 16, Article VII of the Constitution,[14] the President appoints all officials and employees in the Executive branch whose appointments are vested in the President by the Constitution or by law. The President also appoints those whose appointments are not otherwise provided by law. Under this Section 16, the law may also authorize the heads of departments, agencies, commissions, or boards to appoint officers lower in rank than such heads of departments, agencies, commissions or boards.[15] In Rufino v. Endriga,[16] the Court explained appointments under Section 16 in this wise:

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. x x x

xxx

In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers.

xxx

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the heads of the specified offices, and in no other person. The word heads refers to the chairpersons of the commissions or boards and not to their members, for several reasons.

The President does not appoint the Chairman of the PNRC. Neither does the head of any department, agency, commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman is not an official or employee of the Executive branch since his appointment does not fall under Section 16, Article VII of the Constitution. Certainly, the PNRC Chairman is not an official or employee of the Judiciary or Legislature. This leads us to the obvious conclusion that the PNRC Chairman is not an official or employee of the Philippine Government. Not being a government official or employee, the PNRC Chairman, as such, does not hold a government office or employment.

Under Section 17, Article VII of the Constitution,[17] the President exercises control over all government offices in the Executive branch. If an office is legally not under the control of the President, then such office is not part of the Executive branch. In Rufino v. Endriga,[18] the Court explained the Presidents power of control over all government offices as follows:

Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial body or local government unit. Otherwise, such government office, entity, or agency has no legal and constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency not placed by law or order creating them under any specific department falls under the Office of the President.

Since the President exercises control over all the executive departments, bureaus, and offices, the President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President shall have control of all executive . . . offices, Section 17, Article VII of the 1987 Constitution does not exempt any executive office one performing executive functions outside of the independent constitutional bodies from the Presidents power of control. There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.

The Presidents power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.

In short, the President sits at the apex of the Executive branch, and exercises control of all the executive departments, bureaus, and offices. There can be no instance under the Constitution where an

officer of the Executive branch is outside the control of the President. The Executive branch is unitary since there is only one President vested with executive power exercising control over the entire Executive branch. Any office in the Executive branch that is not under the control of the President is a lost command whose existence is without any legal or constitutional basis. (Emphasis supplied)

An overwhelming four-fifths majority of the PNRC Board are private sector individuals elected to the PNRC Board by the private sector members of the PNRC. The PNRC Board exercises all corporate powers of the PNRC. The PNRC is controlled by private sector individuals. Decisions or actions of the PNRC Board are not reviewable by the President. The President cannot reverse or modify the decisions or actions of the PNRC Board. Neither can the President reverse or modify the decisions or actions of the PNRC Chairman. It is the PNRC Board that can review, reverse or modify the decisions or actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman is a private office, not a government office.

Although the State is often represented in the governing bodies of a National Society, this can be justified by the need for proper coordination with the public authorities, and the government representatives may take part in decision-making within a National Society. However, the freely-elected representatives of a National Societys active members must remain in a large majorit y in a National Societys governing bodies.[19]

The PNRC is not government-owned but privately owned. The vast majority of the thousands of PNRC members are private individuals, including students. Under the PNRC Charter, those who contribute to the annual fund campaign of the PNRC are entitled to membership in the PNRC for one year. Thus, any one between 6 and 65 years of age can be a PNRC member for one year upon contributing P35, P100, P300, P500 or P1,000 for the year.[20] Even foreigners, whether residents or not, can be members of the PNRC. Section 5 of the PNRC Charter, as amended by Presidential Decree No. 1264,[21] reads:

SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire population in the Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross Annual Fund Campaign shall entitle the contributor to membership for one year and said contribution shall be deductible in full for taxation purposes.

Thus, the PNRC is a privately owned, privately funded, and privately run charitable organization. The PNRC is not a government-owned or controlled corporation.

Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22] which ruled that the PNRC is a government-owned or controlled corporation. In ruling that the PNRC is a governmentowned or controlled corporation, the simple test used was whether the corporation was created by its own special charter for the exercise of a public function or by incorporation under the general corporation

law. Since the PNRC was created under a special charter, the Court then ruled that it is a government corporation. However, the Camporedondo ruling failed to consider the definition of a government-owned or controlled corporation as provided under Section 2(13) of the Introductory Provisions of the Administrative Code of 1987:

SEC. 2. General Terms Defined. x x x (13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) percent of its capital stock: Provided, That government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.(Boldfacing and underscoring supplied)

A government-owned or controlled corporation must be owned by the government, and in the case of a stock corporation, at least a majority of its capital stock must be owned by the government. In the case of a non-stock corporation, by analogy at least a majority of the members must be government officials holding such membership by appointment or designation by the government. Under this criterion, and as discussed earlier, the government does not own or control PNRC.

The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special Law

The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads: SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the Government or any subdivision or instrumentality thereof. The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from creating private corporations except by general law. Section 1 of the PNRC Charter, as amended, creates the PNRC as a body corporate and politic, thus: SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the

Geneva Conventions and to perform such other duties as are inherent upon a National Red Cross Society. The national headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied) In Feliciano v. Commission on Audit,[23] the Court explained the constitutional provision prohibiting Congress from creating private corporations in this wise: We begin by explaining the general framework under the fundamental law. The Constitution recognizes two classes of corporations. The first refers to private corporations created under a general law. The second refers to government-owned or controlled corporations created by special charters. Section 16, Article XII of the Constitution provides: Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. The Constitution emphatically prohibits the creation of private corporations except by general law applicable to all citizens. The purpose of this constitutional provision is to ban private corporations created by special charters, which historically gave certain individuals, families or groups special privileges denied to other citizens. In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be unconstitutional. Private corporations may exist only under a general law. If the corporation is private, it must necessarily exist under a general law. Stated differently, only corporations created under a general law can qualify as private corporations. Under existing laws, the general law is the Corporation Code, except that the Cooperative Code governs the incorporation of cooperatives. The Constitution authorizes Congress to create government-owned or controlled corporations through special charters. Since private corporations cannot have special charters, it follows that Congress can create corporations with special charters only if such corporations are government-owned or controlled.[24] (Emphasis supplied)

In Feliciano, the Court held that the Local Water Districts are government-owned or controlled corporations since they exist by virtue of Presidential Decree No. 198, which constitutes their special charter. The seed capital assets of the Local Water Districts, such as waterworks and sewerage facilities, were public property which were managed, operated by or under the control of the city, municipality or province before the assets were transferred to the Local Water Districts. The Local Water Districts also receive subsidies and loans from the Local Water Utilities Administration (LWUA). In fact, under the 2009 General Appropriations Act,[25] the LWUA has a budget amounting toP400,000,000 for its subsidy requirements.[26] There is no private capital invested in the Local Water Districts. The capital assets and operating funds of the Local Water Districts all come from the government, either through transfer of assets, loans, subsidies or the income from such assets or funds.

The government also controls the Local Water Districts because the municipal or city mayor, or the provincial governor, appoints all the board directors of the Local Water Districts. Furthermore, the board directors and other personnel of the Local Water Districts are government employees subject to civil

service laws and anti-graft laws. Clearly, the Local Water Districts are considered government-owned or controlled corporations not only because of their creation by special charter but also because the government in fact owns and controls the Local Water Districts. Just like the Local Water Districts, the PNRC was created through a special charter. However, unlike the Local Water Districts, the elements of government ownership and control are clearly lacking in the PNRC. Thus, although the PNRC is created by a special charter, it cannot be considered a government-owned or controlled corporation in the absence of the essential elements of ownership and control by the government. In creating the PNRC as a corporate entity, Congress was in fact creating a private corporation. However, the constitutional prohibition against the creation of private corporations by special charters provides no exception even for non-profit or charitable corporations. Consequently, the PNRC Charter, insofar as it creates the PNRC as a private corporation and grants it corporate powers,[27] is void for being unconstitutional. Thus, Sections 1,[28] 2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36] 10,[37] 11,[38] 12,[39] and 13[40] of the PNRC Charter, as amended, are void.

The other provisions[41] of the PNRC Charter remain valid as they can be considered as a recognition by the State that the unincorporated PNRC is the local National Society of the International Red Cross and Red Crescent Movement, and thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC Charter implement the Philippine Governments treaty obligations under Article 4(5) of the Statutes of the International Red Cross and Red Crescent Movement, which provides that to be recogni zed as a National Society, the Society must be duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field.

In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. However, since the PNRC Charter is void insofar as it creates the PNRC as a private corporation, the PNRC should incorporate under the Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No.

95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation or grant it corporate powers.

SO ORDERED. DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners, G. R. No. 175352 Present:

- versus -

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

CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

Promulgated:

January 18, 2011 x--------------------------------------------------x

RESOLUTION

LEONARDO-DE CASTRO, J.:

This resolves the Motion for Clarification and/or for Reconsideration [1] filed on August 10, 2009 by respondent Richard J. Gordon (respondent) of the Decisionpromulgated by this Court on July 15, 2009 (the Decision), the Motion for Partial Reconsideration[2] filed on August 27,

2009 by movant-intervenor Philippine National Red Cross (PNRC), and the latters Manifestation and Motion to Admit Attached Position Paper[3] filed on December 23, 2009.

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

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation or grant it corporate powers.[7] In his Motion for Clarification and/or for Reconsideration, respondent raises the following grounds: (1) as the issue of constitutionality of Republic Act (R.A.) No. 95 was not raised by the parties, the Court went beyond the case in deciding such issue; and (2) as the Court decided that Petitioners did not have standing to file the instant Petition, the pronouncement of the Court on the validity of R.A. No. 95 should be considered obiter.[8]

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

In its Motion for Partial Reconsideration, constitutionality of its Charter on the following grounds:

PNRC

prays

that

the

Court

sustain

the

A.

THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.

1.

INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT CONTROVERSY.

2.

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

B.

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

C.

PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT DOES NOT QUALIFY AS STRICTLY PRIVATE IN CHARACTER.

In his Comment and Manifestation[10] filed on November 9, 2009, respondent manifests: (1) that he agrees with the position taken by the PNRC in its Motion for Partial Reconsideration dated August 27, 2009; and (2) as of the writing of said Comment and Manifestation, there was pending before the Congress of the Philippines a proposed bill entitled An Act Recognizing the PNRC as an Independent, Autonomous, Non-Governmental Organization Auxiliary to the Authorities of the Republic of the Philippines in the Humanitarian Field, to be Known as The Philippine Red Cross. [11]

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

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

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

Under the rule quoted above, therefore, this Court should not have declared void certain sections of R.A. No. 95, as amended by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead, the Court should have exercised judicial restraint on this matter, especially since there was some other ground upon which the Court could have based its judgment. Furthermore, the PNRC, the entity most adversely affected by this declaration of unconstitutionality, which was not even originally a party to this case, was being compelled, as a consequence of the Decision, to suddenly reorganize and incorporate under the Corporation Code, after more than sixty (60) years of existence in this country. Its existence as a chartered corporation remained unchallenged on ground of unconstitutionality notwithstanding that R.A. No. 95 was enacted on March 22, 1947 during the effectivity of the 1935 Constitution, which provided for a proscription against the creation of private corporations by special law, to wit: SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality thereof. (Art. XIV, 1935 Constitution.)

Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII, Section 16 of the 1987 Constitution. The latter reads: SECTION 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

Since its enactment, the PNRC Charter was amended several times, particularly on June 11, 1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws relating to the PNRCs corporate existence notwithstanding the effectivity of the constitutional proscription on the creation of private corporations by law, is a recognition that the PNRC is not strictly in the nature of a private corporation contemplated by the aforesaid constitutional ban. A closer look at the nature of the PNRC would show that there is none like it not just in terms of structure, but also in terms of history, public service and official status accorded to it by the State and the international community. There is merit in PNRCs contention that its structure is sui generis. The PNRC succeeded the chapter of the American Red Cross which was in existence in the Philippines since 1917. It was created by an Act of Congress after the Republic of the Philippines became an independent nation on July 6, 1946 and proclaimed on February 14, 1947 its adherence to the Convention of Geneva of July 29, 1929 for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (the Geneva Red Cross Convention). By that action the Philippines indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary organization for that purpose and like other volunteer organizations established in other countries which have ratified the Geneva Conventions, to promote the health and welfare of the people in peace and in war.[14]

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

WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894, the nations of the world unanimously agreed to diminish within their power the evils inherent in war; WHEREAS, more than one hundred forty nations of the world have ratified or adhered to the Geneva Conventions of August 12, 1949 for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field and at Sea, The Prisoners of War, and The Civilian Population in Time of War referred to in this Charter as the Geneva Conventions; WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946, and proclaimed on February 14, 1947 its adherence to the Geneva Conventions of 1929, and by the action, indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary organization for that purpose as contemplated by the Geneva Conventions; WHEREAS, there existed in the Philippines since 1917 a chapter of the American National Red Cross which was terminated in view of the independence of the Philippines; and WHEREAS, the volunteer organizations established in other countries which have ratified or adhered to the Geneva Conventions assist in promoting the health and welfare of their people in peace and in war, and through their mutual assistance and cooperation directly and through their international organizations promote better understanding and sympathy among the people of the world; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby decree and order that Republic Act No. 95, Charter of the Philippine National Red Cross (PNRC) as amended by Republic Acts No. 855 and 6373, be further amended as follows: Section 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions and to perform such other duties as are inherent upon a national Red Cross Society. The national headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied.)

The significant public service rendered by the PNRC can be gleaned from Section 3 of its Charter, which provides: Section 3. That the purposes of this Corporation shall be as follows:

(a) To provide volunteer aid to the sick and wounded of armed forces in time of war, in accordance with the spirit of and under the conditions prescribed by the Geneva Conventions to which the Republic of the Philippines proclaimed its adherence; (b) For the purposes mentioned in the preceding sub-section, to perform all duties devolving upon the Corporation as a result of the adherence of the Republic of the Philippines to the said Convention; (c) To act in matters of voluntary relief and in accordance with the authorities of the armed forces as a medium of communication between people of the Republic of the Philippines and their Armed Forces, in time of peace and in time of war, and to act in such matters between similar national societies of other governments and the Governments and people and the Armed Forces of the Republic of the Philippines; (d) To establish and maintain a system of national and international relief in time of peace and in time of war and apply the same in meeting and emergency needs caused by typhoons, flood, fires, earthquakes, and other natural disasters and to devise and carry on measures for minimizing the suffering caused by such disasters; (e) To devise and promote such other services in time of peace and in time of war as may be found desirable in improving the health, safety and welfare of the Filipino people; (f) To devise such means as to make every citizen and/or resident of the Philippines a member of the Red Cross. The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with the International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up the International Red Cross and Red Crescent Movement (the Movement). They constitute a worldwide humanitarian movement, whose mission is: [T]o prevent and alleviate human suffering wherever it may be found, to protect life and health and ensure respect for the human being, in particular in times of armed conflict and other emergencies, to work for the prevention of disease and for the promotion of health and social welfare, to encourage voluntary service and a constant readiness to give help by the members of the Movement, and a universal sense of solidarity towards all those in need of its protection and assistance.[15]

The PNRC works closely with the ICRC and has been involved in humanitarian activities in the Philippines since 1982. Among others, these activities in the country include: 1. Giving protection and assistance to civilians displaced or otherwise affected by armed clashes between the government and armed opposition groups, primarily in Mindanao; 2. Working to minimize the effects of armed hostilities and violence on the population; 3. Visiting detainees; and 4. Promoting awareness of international humanitarian law in the public and private sectors. [16] National Societies such as the PNRC act as auxiliaries to the public authorities of their own countries in the humanitarian field and provide a range of services including disaster relief and health and social programmes. The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS) Position Paper, submitted by the PNRC, is instructive with regard to the elements of the specific nature of the National Societies such as the PNRC, to wit:
[17]

National Societies, such as the Philippine National Red Cross and its sister Red Cross and Red Crescent Societies, have certain specificities deriving from the 1949 Geneva Convention and the Statutes of the International Red Cross and Red Crescent Movement (the Movement). They are also guided by the seven Fundamental Principles of the Red Cross and Red Crescent Movement:Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and Universality. A National Society partakes of a sui generis character. It is a protected component of the Red Cross movement under Articles 24 and 26 of the First Geneva Convention, especially in times of armed conflict. These provisions require that the staff of a National Society shall be respected and protected in all circumstances. Such protection is not ordinarily afforded by an international treaty to ordinary private entities or even nongovernmental organisations (NGOs). This sui generis character is also emphasized by the Fourth Geneva Convention which holds that an Occupying Power cannot require any change in the personnel or structure of a National Society. National societies are therefore organizations that are directly regulated by international humanitarian law, in contrast to other ordinary private entities, including NGOs. xxxx In addition, National Societies are not only officially recognized by their public authorities as voluntary aid societies, auxiliary to the public authorities in the humanitarian field, but also benefit from recognition at the International level. This is considered to be an element distinguishing National Societies from other organisations (mainly NGOs) and other forms of humanitarian response. x x x. No other organisation belongs to a world-wide Movement in which all Societies have equal status and share equal responsibilities and duties in helping each other. This is considered to be the essence of the Fundamental Principle of Universality. Furthermore, the National Societies are considered to be auxiliaries to the public authorities in the humanitarian field. x x x. The auxiliary status of [a] Red Cross Society means that it is at one and the same time a private institution and a public service organization because the very nature of its work implies cooperation with the authorities, a link with the State. In carrying out their major functions, Red Cross Societies give their humanitarian support to official bodies, in general having larger resources than the Societies, working towards comparable ends in a given sector. x x x No other organization has a duty to be its governments humanitarian partner while remaining independent.[18] (Emphases ours.)

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

The PNRC Charter and its amendatory laws have not been questioned or challenged on constitutional grounds, not even in this case before the Court now. In the Decision, the Court, citing Feliciano v. Commission on Audit,[19] explained that the purpose of the constitutional provision prohibiting Congress from creating private corporations was to prevent the granting of special privileges to certain individuals, families, or groups, which were denied to other

groups. Based on the above discussion, it can be seen that the PNRC Charter does not come within the spirit of this constitutional provision, as it does not grant special privileges to a particular individual, family, or group, but creates an entity that strives to serve the common good. Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987 Constitution will hinder the State in adopting measures that will serve the public good or national interest. It should be noted that a special law, R.A. No. 9520, the Philippine Cooperative Code of 2008, and not the general corporation code, vests corporate power and capacities upon cooperatives which are private corporations, in order to implement the States avowed policy.

In the Decision of July 15, 2009, the Court recognized the public service rendered by the PNRC as the governments partner in the observance of its international commitments, to wit: The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without consideration of nationality, race, religion, gender, social status, or political affiliation. The PNRC provides six major services: Blood Services, Disaster Management, Safety Services, Community Health and Nursing, Social Services and Voluntary Service. The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary organization for the purpose contemplated in the Geneva Convention of 27 July 1929. x x x.[20] (Citations omitted.)

So must this Court recognize too the countrys adherence to the Geneva Convention and respect the unique status of the PNRC in consonance with its treaty obligations. The Geneva Convention has the force and effect of law.[21] Under the Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land. [22] This constitutional provision must be reconciled and harmonized with Article XII, Section 16 of the Constitution, instead of using the latter to negate the former. By requiring the PNRC to organize under the Corporation Code just like any other private corporation, the Decision of July 15, 2009 lost sight of the PNRCs special status under international humanitarian law and as an auxiliary of the State, designated to assist it in discharging its obligations under the Geneva Conventions. Although the PNRC is called to be independent under its Fundamental Principles, it interprets such independence as inclusive of its duty to be the governments humanitarian partner. To be recognized in the International Committee, the PNRC must have an autonomous status, and carry out its humanitarian mission in a neutral and impartial manner. However, in accordance with the Fundamental Principle of Voluntary Service of National Societies of the Movement, the PNRC must be distinguished from private and profit-making entities. It is the main characteristic of National Societies that they are not inspired by the desire for financial gain but by individual commitment and devotion to a humanitarian purpose freely chosen or accepted as part of the service that National Societies through its volunteers and/or members render to the Community. [23]

The PNRC, as a National Society of the International Red Cross and Red Crescent Movement, can neither be classified as an instrumentality of the State, so as not to lose its character of neutrality as well as its independence, nor strictly as a private corporation since it is regulated by international humanitarian law and is treated as an auxiliary of the State.[24] Based on the above, the sui generis status of the PNRC is now sufficiently established. Although it is neither a subdivision, agency, or instrumentality of the government, nor a government-owned or controlled corporation or a subsidiary thereof, as succinctly explained in the Decision of July 15, 2009, so much so that respondent, under the Decision, was correctly allowed to hold his position as Chairman thereof concurrently while he served as a Senator, such a conclusion does not ipso facto imply that the PNRC is a private corporation within the contemplation of the provision of the Constitution, that must be organized under the Corporation Code. As correctly mentioned by Justice Roberto A. Abad, the sui generis character of PNRC requires us to approach controversies involving the PNRC on a case-to-case basis. In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government in the humanitarian field in accordance with its commitments under international law. This Court cannot all of a sudden refuse to recognize its existence, especially since the issue of the constitutionality of the PNRC Charter was never raised by the parties. It bears emphasizing that the PNRC has responded to almost all national disasters since 1947, and is widely known to p rovide a substantial portion of the countrys blood requirements. Its humanitarian work is unparalleled. The Court should not shake its existence to the core in an untimely and drastic manner that would not only have negative consequences to those who depend on it in times of disaster and armed hostilities but also have adverse effects on the image of the Philippines in the international community. The sections of the PNRC Charter that were declared void must therefore stay. WHEREFORE, premises considered, respondent Richard J. Gordons Motion for Clarification and/or for Reconsideration and movant-intervenor PNRCsMotion for Partial Reconsideration of the Decision in G.R. No. 175352 dated July 15, 2009 are GRANTED. The constitutionality of R.A. No. 95, as amended, the charter of the Philippine National Red Cross, was not raised by the parties as an issue and should not have been passed upon by this Court. The structure of the PNRC is sui generisbeing neither strictly private nor public in nature. R.A. No. 95 remains valid and constitutional in its entirety. The dispositive portion of the Decision should therefore be MODIFIED by deleting the second sentence, to now read as follows: WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. SO ORDERED. G.R. No. 131136 February 28, 2001

CONRADO L. DE RAMA, petitioner, vs. THE COURT OF APPEALS (NINTH DIVISION, THE CIVIL SERVICE COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY PORTA, FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD ORINDA Y, MA. PETRA MUFFET LUCE, ELSA MARINO, BERNARDITA MENDOZA, JANE MACATANGA y ADELFO GLODOVIZA and FLORENIO RAMOS, respondents.

YNARES-SANTIAGO, J.: Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Raffia wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the appointments of fourteen (14) municipal employees, namely: NAME Eladio Martinez Divino de Jesus Morell Ayala Daisy Porta Aristeo Catalla Elsa Marino Graciela Glory Ma. Petra Muffet Lucce Felicidad Orinday Bernardita Mendoza Flordeliza Oriasel Jane Macatangay Adolfo Glodoviza Florenio Ramos POSITION Registration Office I Bookbinder III Accounting Clerk III Clerk IV Gen. Services Officer Mun. Agriculturist Bookkeeper II Accounting Clerk III Accounting Clerk II Agricultural Technologist Clerk I Day Care Worker I Utility Worker II Utility Foreman DATE OF APPOINTMENT June 1, 1995 June 1, 1995 June 16, 1995 June 27, 1995 June 19, 1995 June 19, 1995 June 27, 1995 June 27, 1995 June 27, 1995 June 27, 1995 June 27, 1995 June 27, 1995 June 27, 1995 June 27, 1995

Petitioner de Raffia justified his recall request on the allegation that, the appointments of the said employees were "midnight" appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution, which provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, aPresident or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Underscoring supplied) While the matter was pending before the CSC, three of the above-named employees, namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries, alleging that although their appointments were declared permanent by Conrado Gulim, Director II of the CSC Field Office based in Quezon, petitioner de Rama withheld the payment of their salaries and benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the appointments of the said fourteen (14) employees were recalled. Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial Division of the CSC issued an Order2 finding that since the claimants-employees had assumed their respective positions and performed their duties pursuant to their appointments, they are therefore entitled to receive

the salaries and benefits appurtenant to their positions. Citing Rule V, Section 10 of the Omnibus Rules3 which provides, in part, that "if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission," the CSC Legal and Quasi-Judicial Division ruled that the said employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-assumed mayor. On April 30, 1996, the CSC denied petitioner's request for the recall of the appointments of the fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus Rules, and declared that the appointments of the said employees were issued in accordance with pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by the appointing authority until disapproved by the CSC. The CSC also dismissed petitioner's allegation that these were "midnight" appointments, pointing out that the Constitutional provision relied upon by petitioner prohibits only those appointments made by an outgoing President and cannot be made to apply to local elective officials. Thus, the CSC opined, "the appointing authority can validly issue appointments until his term has expired, as long as the appointee meets the qualification standards for the position." 4 The CSC upheld the validity of the appointments on the ground that they had already been approved by' the Head of the CSC Field Office in Lucena City, and for petitioner's failure to present evidence that would warrant the revocation or recall of the said appointments. Petitioner moved for the reconsideration of the CSC's Resolution, as well as the Order of the CSC Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming that there was failure to present evidence that would prove that these appointments contravened existing laws or rules. He also posited that the CSC erred in finding the appointments valid despite the existence of circumstances showing that the same were fraudulently issued and processed. On November 21, 1996, the CSC denied petitioner's motion for reconsideration. The CSC reiterated its ruling that: In the absence of any showing that these alleged midnight appointments were defective in form and in substance, nor is there evidence presented to show that subject appointments were issued in contravention of law or rules, these appointments are deemed valid and in effect. xxx xxx xxx

Mayor de Rama failed to present evidence that subject appointments should be revoked or recalled because of any of the abovementioned grounds enumerated. As a matter of fact said appointments were even approved by the Head, Civil Service Field Office, Lucena City when submitted for attestation. In the absence of a clear showing that these appointments were issued in violation of any of these grounds, the Commission has no other recourse but to uphold their validity. (Underscoring supplied). The CSC also 'cited the Supreme Court ruling in the case of Aquino v. Civil Service Commission 5 wherein this Court held that: It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal not merely equitable right (to the position),which is protected not only by statute, but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. (Emphasis supplied) Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that the CSC arrived at the erroneous conclusion after it ignored his "supplement to the consolidated appeal and motion for reconsideration" wherein he laid out evidence showing that the subject appointments were obtained through fraud.

After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a Resolution 6 dated May 16, 1997 which held that there was no abuse of the power of appointment on the part of the outgoing mayor. The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos, Mendoza and Glory were made more than four (4) months after the publication of the vacancies to which they were appointed is of no moment. Setting aside petitioner's suppositions, the Court of Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local government service must be made within four (4) months from publication of the vacancies. It cited Section 80 of said Act, to wit: Section 80. Public Notice of Vacancy: Personnel Selection Board. (a) Whenever a local chief executive decides to fill a vacant career position, there shall be posted notices of the vacancy in at least three (3) conspicuous public places in the local government unit concerned for a period of not less than fifteen (15) days. (b) There shall be established in every province, city or municipality a personnel selection board to assist the local chief executive in the judicious and objective selection of personnel for employment as well as for promotion, and in the formulation of such policies as would contribute to employee welfare. (c) The personnel selection board shall be headed by the local sanggunian concerned. A representative of the Civil Service Commission, if any, and the personnel officer of the local government unit concerned shall be ex officio members of the board.7 Likewise, neither did the CSC's own Circular Order No. 27, Section 7, Series of 1991, require that vacant positions published in a government quarterly must be filled up before the advent of the succeeding quarter. On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the petition for review. Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the CSC's resolutions despite the following defects: I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the respondents; II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law; III. Merit and fitness requirements were not observed by the selection board and by the appointing authority as required by the Civil Service rules; IV. Petitioner has valid grounds to recall the appointments of respondents.8 In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for reconsideration. Hence, the instant petition for review on certiorari on the following assigned errors: I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON ISSUANCE OF APPOINTMENTS.

II. THE-PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE PARTICULAR GROUNDS NAMELY: I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the respondents; II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law; III. Merit and fitness requirements were not observed by the selection board and by the appointing authority as required by the Civil Service rules; IV. Petitioner has valid grounds to recall the appointments of respondents. ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT CIVIL SERVICE COMMISSION. Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law and not being supported by the evidence on record. This argument is too specious to be given credence. The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were "midnight appointments" that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments. Neither did he allege that the said appointments were tainted by irregularities or anomalies that breached laws and regulations governing appointments. His solitary reason for recalling these appointments was that they were, to his personal belief, "midnight appointments" which the outgoing mayor had no authority to make. Even in petitioner's consolidated appeal and motion for reconsideration, he did not make any assertion that these appointments were violative of civil service rules and procedures. Indeed, he harped on the CSC's alleged lack of jurisdiction to refuse to recall the subject appointments. After first invoking the authority of the CSC to approve or affirm his act, he then contradicted himself by arguing that the CSC had no jurisdiction to do so, but only after the CSC had ruled that the recall was without legal basis. He emphasized that he alone has sole discretion to appoint and recall the appointment of municipal employees, an authority which, he stressed, the CSC cannot usurp. Yet, nowhere in said pleading did he cite any other ground, much less present proof that would warrant the recall of said appointments. Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement to the appeal and motion for reconsideration where, for the very first time, he alleged that the appointments were fraught with irregularities for failing to comply with CSC rules and regulations. Nevertheless, the CSC overruled petitioner's assertions, holding that no new evidence had been presented to warrant a reversal of its earlier resolution. Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSC's conclusion because it had ignored the allegations and documents he presented in the supplement to his earlier consolidated appeal and motion for reconsideration. He argued that these form part of the records of the case and that the CSC erred in failing to consider the assertions he raised therein. The appellate court, however, agreed with the CSC when it ruled that the documents presented by petitioner in the supplemental pleading did not constitute "new evidence" that would convince the CSC to reverse its earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed petitioner's allegations and documents attached to the supplemental pleading for they did not constitute new evidence that a court, board or tribunal may entertain.

Herein lies the inconsistency of petitioner's arguments. He faults the Court of Appeals and the CSC for ignoring his supplemental pleading, while at the same time arguing that the grounds for recall such as violations of laws and regulations on issuance of appointments are not new issues because he had timely raised them before the CSC. There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an original pleading, but which should not entirely substitute the latter.9 The propriety and substance of supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil Procedure, which provides: Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court or tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the supplemental pleading, or even to consider the averments therein. Secondly, a supplemental pleading must state transactions, occurrences or events which took place since the time the pleading sought to be supplemented was filed. In the instant case, petitioner alleged fraud and irregularities that supposedly occurred contemporaneous to the execution of the appointments. They should have been raised at the very first opportunity. They are not new events which petitioner could not have originally included as grounds for the recall of the appointments. Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his supplemental pleading did not constitute "new evidence" that can be the proper subject of a supplemental pleading. These were old facts and issues which he failed to raise earlier. Consequently, the CSC and the Court of Appeals did not err in refusing to give credence to the supplemental pleading. Be that as it may, these alleged irregularities were considered by the CSC and the Court of Appeals as new issues which were raised for the first time on appeal. It is rather too late for petitioner to raise these issues for the first time on appeal. It is well-settled that issues or questions of fact cannot be raised for the first time on appeal.10 We have consistently held that matters, theories or arguments not brought out in the original proceedings cannot be considered on review or appeal where they are raised for the first time.11 To consider the alleged facts and arguments raised belatedly in the supplemental pleading to the appeal at this very late stage in the proceedings would amount to trampling on the basic principles of fair play, justice and due process.12 The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to the consolidated appeal and motion for reconsideration are that: (1) the rules on screening of applicants based on adopted criteria were not followed; (2) there was no proper posting of notice of vacancy; and (3) the merit and fitness requirements set by the civil service rules were not observed. These are grounds that he could have stated in his order of recall, but which he did not. Neither did he raise said grounds in his original appeal, but only by way of a supplemental pleading. Failure of the petitioner to raise said grounds and to present supporting documents constitute a waiver thereof, and the same arguments and evidence can no longer be entertained on appeal before the CSC, nor in the Court of Appeals, and much less in a petition for review before the Supreme Court.13 In fine, the raising of these factual issues for the first time in a pleading which is supplemental only to an appeal is barred by estoppel. 14 Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled that the jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Court is limited to reviewing only errors of law, not of fact. 15 That is, of course, unless the factual findings assailed by petitioner are devoid of support by the evidence on record or the impugned judgment is based on a misapprehension of facts.16

A thorough perusal of the records reveal that the CSC's ruling is supported by the evidence and the law. The fourteen (14) employees were duly appointed following two meetings of the Personnel Selection Board held on May 31 and June 26, 1995. There is no showing that any of the private respondents were not qualified for the positions they were appointed to. Moreover, their appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue thereof, they had already assumed their appointive positions even before petitioner himself assumed his elected position as town mayor. Consequently, their appointments took effect immediately and cannot be unilaterally revoked or recalled by petitioner. It has been held that upon the issuance of an appointment and the appointee's assumption of the position in the civil service, "he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing." 17 Moreover, it is wellsettled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing.18 Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements or due process of law. In doing so, he overstepped the bounds of his authority. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSC's jurisdiction to affirm or revoke the recall. Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that "an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission." Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations.19 Moreover, Section 10 of the same rule provides: Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance. Section 20 of Rule VI also provides: Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds: (a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan; (b) Failure to pass through the agency's Selection/Promotion Board; (c) Violation of the existing collective agreement between management and employees relative to promotion; or (d) Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were "midnight appointments." The CSC correctly ruled, however, that the constitutional prohibition on socalled "midnight appointments," specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President. If ever there were other procedural or legal requirements that were violated in implementing the appointments of the private respondents, the same were not seasonably brought before the Civil Service Commission. These cannot be raised for the first time on appeal. WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos. 96-2828 and 96-7525 herebyAFFIRMED in toto. No pronouncement as to costs. SO ORDERED. G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991 ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, 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.

FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 1988 1 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. 83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition andmandamus, 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 Ordoez, 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 1987 9 and DOJ Opinion No. 155, series of 1988, 10being 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, Vice-President, Members of the Cabinet and their deputies or assistants. There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that 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 exofficio 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 governmentowned 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 twentynine (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. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea 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 IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government." It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. 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 Vice- President, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article 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 Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article 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. 17Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be 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 required 22 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-officioChairman 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 Authority 34 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 exofficio 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 highranking 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 fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no

light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 44 It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called 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 IXB 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, exofficio 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 Government 45 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. Article IX (B), Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. 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. Civil Liberties Union v Executive Secretary (194 SCRA 317) FACTS: The petitioner are assailing the Executive Order No. 284 issued by the President allowing cabinet members, undersecretary or asst. secretaries and other appointive officials of the executive department to hold 2 positions in the government and government corporations and to receive additional compensation. They find it unconstitutional against the provision provided by Section 13, Article VII prohibiting the President, Cabinet members and their deputies to hold any other office or employment. Section 7, par. (2), Article IX-B further states that Unless otherwise allowed by law or by the primary functions of his position, no appointive officialshall 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." In the opinion of the DOJ as affirmed by the Solicitor General, the said Executive Order is valid and constitutional as Section 7 of Article IX-B stated unless otherwise allowed by law which is construed to be an exemption from that stipulated on Article VII, section 13, such as in the case of the Vice President who is constitutionally allowed to become acabinet member and the Secretary of Justice as ex-officio member of the Judicial and Bar Council. ISSUE: Whether Section 7 of Article IX-B provides an exemption to Article VII, section 13 of the constitution. RULING: The court held it is not an exemption since the legislative intent of both Constitutional provisions is to prevent government officials from holding multiple positions in the government for self enrichment which a betrayal of public trust. 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 Vice- President, Members of the Cabinet, their deputies and assistants. Thus the phrase unless otherwise provided by the Constitution in Section 13, Article VII cannot be construed as a broad exception from Section 7 of Article IX-B that is contrary to the legislative intent of both constitutional provisions. Such phrase is only limited to and strictly applies only to particular instances of allowing the VP to become a cabinet member and the Secretary of Justice as exofficio member of the Judicial and Bar Council. The court thereby declared E.O 284 as null and void. Civil Liberties Union VS. Executive Secretary FACTS: Petitioners: Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896 and Juan T. David for petitioners in 83815. Both petitions were consolidated 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. Executive Order No. 284, according to the petitioners allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other than government offices or positions in addition to their primary positions. The pertinent provisions of EO 284 is as follows: Section 1: A cabinet member, 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.

Section 2: If they hold more positions more than what is required in section 1, they 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. Section 3: AT least 1/3 of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary. The petitioners are challenging EO 284s constitutionality because it adds exceptions to Section 13 of Article VII other than those provided in the constitution. According to the petitioners, 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 of Article VII. 2. The secretary of justice is an ex-officio member of the Judicial and Bar Council by virtue of Sec. 8 of article VIII. Issue: Whether or not Executive Order No. 284 is constitutional. Decision: No. It is unconstitutional. Petition granted. Executive Order No. 284 was declared null and void. Ratio: In the light of the construction given to Section 13 of Article VII, Executive Order No. 284 is unconstitutional. By restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition their primary position to not more that two positions in the government and government corporations, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Sec. 13 of Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. 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: Sec. 3 Art VII and Sec. 8 Art. VIII.

CLU v Executive Secretary, 194 SCRA 317 (1991) F: The petitioner challenged Ex. Order No. 284 which in effect allowed Cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold other positions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting the petitioners' argument that the measure was violative of Art. VIII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the holding of multiple positions by the appointive official if allowed by law or by the pressing functions of his positions. HELD: By ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst. secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOCCs, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other govt. offices or employment. xxx The stricter prohibition applied to the Pres. and his official family under Sec. 13, Art. VII as compared to the prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Consti. to treat them as a class by itself and to impose upon said class stricter prohibitions. Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the govt 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 Consti. itself. xxx

However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 must not be construed as applying to posts occupied by the Executive officials specified therein w/o addition compensation in an ex-officio capacity as provided by law and as required by the primary functions of said official's office. The reason is that these posts do not comprise "any other office" w/in the contemplation of the constitutional prohibition but are properly an imposition of additional duties and function on said officials.

[G.R. No. 147387. December 10, 2003]

RODOLFO C. FARIAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO, AS MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ALSO AS TAXPAYERS, IN THEIR OWN BEHALF AND IN REPRESENTATION OF THE MEMBERS OF THE MINORITY IN THE HOUSE OF REPRESENTATIVES, petitioners, vs. THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, HON. FELICIANO R. BELMONTE, JR., SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE SENATE, AND SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, respondents.

[G.R. No. 152161. December 10, 2003]

CONG. GERRY A. SALAPUDDIN, petitioner, vs. COMMISSION ON ELECTIONS, respondent. DECISION CALLEJO, SR., J.: Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and VicePresident, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Farias, Manuel M. Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners were members of the minority bloc in the House of Representatives. Impleaded as respondents are: the Executive Secretary, then Speaker of the House of Representatives Feliciano R. Belmonte, Jr., the Commission on Elections, the Secretary of the Department of the Interior and Local Government (DILG), the Secretary of the Senate and the Secretary General of the House of Representatives. The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of the House of Representatives. Impleaded as respondent is the COMELEC.

Legislative History of Republic Act No. 9006

Rep. Act No. 9006, entitled An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is a consolidation of th e following bills originating from the House of Representatives and the Senate, respectively: House Bill (HB) No. 9000 entitled AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE KNOWN AS THE OMNIBUS ELECTION CODE, AS AMENDED, AND FOR OTHER PURPOSES;[1] Senate Bill (SB) No. 1742 entitled AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES.[2] A Bicameral Conference Committee, composed of eight members of the Senate [3] and sixteen (16) members of the House of Representatives,[4] was formed to reconcile the conflicting provisions of the House and Senate versions of the bill. On November 29, 2000, the Bicameral Conference Committee submitted its Report, [5] signed by its members, recommending the approval of the bill as reconciled and approved by the conferees. During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen raised a point of order commenting that the House could no longer submit an amendment thereto. Rep. Sergio A.F. Apostol thereupon moved that the House return the report to the Bicameral Conference Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his objection to the proposal. However, upon viva voce voting, the majority of the House approved the return of the report to the Bicameral Conference Committee for proper action. [6] In view of the proposed amendment, the House of Representatives elected anew its conferees [7] to the Bicameral Conference Committee.[8] Then again, for unclear reasons, upon the motion of Rep. Ignacio R. Bunye, the House elected another set of conferees[9] to the Bicameral Conference Committee.[10] On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that the House consider the Bicameral Conference Committee Report on the contrasting provisions of HB No. 9000 and SB No. 1742. Rep. Dilangalen observed that the report had been recommitted to the Bicameral Conference Committee. The Chair responded that the Bicameral Conference Report was a new one, and was a result of the reconvening of a new Bicameral Conference Committee. Rep. Dilangalen then asked that he be given time to examine the new report. Upon motion of Rep. Apostol, the House deferred the approval of the report until the other members were given a copy thereof. [11] After taking up other pending matters, the House proceeded to vote on the Bicameral Conference Committee Report on the disagreeing provisions of HB No. 9000 and SB No. 1742. The House approved the report with 125 affirmative votes, 3 negative votes and no abstention. In explaining their negative votes, Reps. Farias and Garcia expressed their belief that Section 14 thereof was a rider. Even Rep. Escudero, who voted in the affirmative, expressed his doubts on the constitutionality of Section 14. Prior to casting his vote, Rep. Dilangalen observed that no senator signed the Bicameral Conference Committee Report and asked if this procedure was regular.[12] On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the contrasting provisions of SB No. 1742 and HB No. 9000. Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the Senate Lutgardo B. Barbo and the Secretary General of the House of Representatives Robert P. Nazareno as the consolidation of House Bill No. 9000 and Senate Bill No. 1742, and finally passed by both Houses on February 7, 2001. President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.

The Petitioners Case

The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title. According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in the subject matter of Rep. Act No. 9006, on the one hand, and Section 67 of the Omnibus Election Code, on the other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of media for election propaganda and the elimination of unfair election practices, while Section 67 of the Omnibus Election Code imposes a limitation on elective officials who run for an office other than the one they are holding in a permanent capacity by considering them as ipso facto resigned therefrom upon filing of the certificate of candidacy. The repeal of Section 67 of the Omnibus Election Code is thus not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006. The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position . Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even Section 16 of the law which provides that [t]his Act shall take effect upon its approval is a violation of the due process clause of the Constitution, as well as jurisprudence, which require publication of the law before it becomes effective. Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra, Jr.,[13] that Section 67 of the Omnibus Election Code is based on the constitutional mandate on the Accountability of Public Officers:[14] Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with grave abuse of discretion amounting to excess or lack of jurisdiction for not considering those members of the House who ran for a seat in the Senate during the May 14, 2001 elections as ipso facto resigned therefrom, upon the filing of their respective certificates of candidacy.

The Respondents Arguments For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the petitions contending, preliminarily, that the petitioners have no legal standing to institute the present suit. Except for the fact that their negative votes were overruled by the majority of the members of the House of Representatives, the petitioners have not shown that they have suffered harm as a result of the

passage of Rep. Act No. 9006. Neither do petitioners have any interest as taxpayers since the assailed statute does not involve the exercise by Congress of its taxing or spending power. Invoking the enrolled bill doctrine, the respondents refute the petitioners allegations that irregularities attended the enactment of Rep. Act No. 9006. The signatures of the Senate President and the Speaker of the House, appearing on the bill and the certification signed by the respective Secretaries of both houses of Congress, constitute proof beyond cavil that the bill was duly enacted into law. The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution. The title of Rep. Act No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is so broad that it encompasses all the processes involved in an election exercise, including the filing of certificates of candidacy by elective officials. They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in its title as it eliminates the effect of prematurely terminating the term of an elective official by his filing of a certificate of candidacy for an office other than the one which he is permanently holding, such that he is no longer considered ipso facto resigned therefrom. The legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to remove the unfairness of considering an elective official ipso factoresigned from his office upon the filing of his certificate of candidacy for another elective office. With the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to finish their respective terms even if they run for any office, whether the presidency, vice-presidency or other elective positions, other than the one they are holding in a permanent capacity. The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly stated in the title of Rep. Act No. 9006 as the legislature is not required to make the title of the act a complete index of its contents. It must be deemed sufficient that the title be comprehensive enough reasonably to include the general subject which the statute seeks to effect without expressing each and every means necessary for its accomplishment. Section 26(1) of Article VI of the Constitution merely calls for all the parts of an act relating to its subject to find expression in its title. Mere details need not be set forth. According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials are not elected by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. Further, Section 16, or the Effectivity clause, of Rep. Act No. 9006 does not run afoul of the due process clause of the Constitution as it does not entail any arbitrary deprivation of life, liberty and property. Specifically, the section providing for penalties in cases of violations thereof presume that the formalities of the law would be observed, i.e., charges would first be filed, and the accused would be entitled to a hearing before judgment is rendered by a court having jurisdiction. In any case, the issue about lack of due process is premature as no one has, as yet, been charged with violation of Rep. Act No. 9006. Finally, the respondents submit that the respondents Speaker and Secretary General of the House of Representatives did not commit grave abuse of discretion in not excluding from the Rolls those members thereof who ran for the Senate during the May 14, 2001 elections. These respondents merely complied with Rep. Act No. 9006, which enjoys the presumption of validity until declared otherwise by the Court.

The Courts Ruling

Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by the respondents, i.e., whether the petitioners have the legal standing or locus standi to file the petitions at bar. The petitions were filed by the petitioners in their capacities as members of the House of Representatives, and as taxpayers and registered voters. Generally, a party who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. [15] The rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of the controversy is to a ssure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[16] However, being merely a matter of procedure, this Court, in several cases involving issues of overarching significance to our society,[17] had adopted a liberal stance on standing. Thus, inTatad v. Secretary of the Department of Energy,[18] this Court brushed aside the procedural requirement of standing, took cognizance of, and subsequently granted, the petitions separately filed by then Senator Francisco Tatad and several members of the House of Representatives assailing the constitutionality of Rep. Act No. 8180 (An Act Deregulating the Downstream Oil Industry and For Other Purposes). The Court likewise took cognizance of the petition filed by then members of the House of Representatives which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the Autonomous Region in Muslim Mindanao) in Chiongbian v. Orbos.[19] Similarly, the Court took cognizance of the petition filed by then members of the Senate, joined by other petitioners, which challenged the validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of Finance.[20] Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity of acts, decisions, rulings, or orders of various government agencies or instrumentalities in Del Mar v. Philippine Amusement and Gaming Corporation ,[21] Kilosbayan, Inc. v. Guingona, Jr.,[22] Philippine Constitution Association v. Enriquez,[23] Albano v. Reyes,[24]and Bagatsing v. Committee on Privatization.[25] Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code, which this Court had declared in Dimaporo[26] as deriving its existence from the constitutional provision on accountability of public officers, has been validly repealed by Section 14 of Rep. Act No. 9006, is one of overarching significance that justifies this Courts adoption of a liberal stance vis-vis the procedural matter on standing. Moreover, with the national elections barely seven months away, it behooves the Court to confront the issue now and resolve the same forthrightly. The following pronouncement of the Court is quite apropos: ... All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality . . . be now resolved. It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections beings barely six months away, reinforce our stand. [27] Every statute is presumed valid.[28] The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law.[29] It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law.[30] And where the acts of the other branches of government run afoul of the Constitution, it is the judiciarys solemn and sacred duty to nullify the same. [31] Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the petitions.

Section 14 of Rep. Act No. 9006 Is Not a Rider[32] At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides: Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 26(1), Article VI of the Constitution provides: SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title.[33] To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be expressed in its title, the Court laid down the rule that Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for the accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act.[34] The title of Rep. Act No. 9006 reads: An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices. Section 2 of the l aw provides not only the declaration of principles but also the objectives thereof: Sec. 2. Declaration of Principles. The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections. The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination.[35] The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that the said repeal of Section 67 of the Code be expressed in the title is to insist that the title be a complete index of its content.[36]

The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on elective officials who run for an office other than the one they are holding, to the other provisions of Rep. Act No. 9006, which deal with the lifting of the ban on the use of media for election propaganda, does not violate the one subject-one title rule. This Court has held that an act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject. [37] The deliberations of the Bicameral Conference Committee on the particular matter are particularly instructive: SEN. LEGARDA-LEVISTE: Yes, Mr. Chairman, I just wanted to clarify. So all were looking for now is an appropriate title to make it broader so that it would cover this provision [referring to the repeal of Section 67 of the Omnibus Election Code], is that correct? Thats all. Because I believe ... THE CHAIRMAN (REP. SYJUCO): We are looking for an appropriate coverage which will result in the nomenclature or title. SEN. LEGARDA-LEVISTE: Because I really do not believe that it is out of place. I think that even with the term fair election practice, it really covers it, because as expressed by Senator Roco, those conditions inserted earlier seemed unfair and it is an election practice and, therefore, I think, Im very comfortable with the title Fair Election Practice so that we can get over with these things so that we dont come back again until we find the title. I mean, its one provision which I think is fair for everybody. It may seem like a limitation but this limitation actually provides for fairness in election practices as the title implies. THE CHAIRMAN (REP. SYJUCO): Yes. SEN. LEGARDA-LEVISTE: So I would want to beg the House contingent, lets get it over with. To me, ha, its not a very touchy issue. For me, its even a very correct provision. I feel very comfortable with it and it was voted in the Senate, at least, so I would like to appeal to the ... para matapos na, then we come back as a Bicam just for the title Is that what youre ...? THE CHAIRMAN (REP. SYJUCO): Its not the title per se, its the coverage. So if you will just kindly bear with us. Im happy that there is already one comfortable senator there among ... several of us were also comfortable with it. But it would be well that when we rise from this Bicam that were all comfortable with it. THE CHAIRMAN (SEN. ROCO): Yes. Anyway, lets listen to Congressman Marcos. REP. MARCOS: Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals with the area of propaganda and political advertising, the complete title is actually one that indulge full coverage. It says An Act to enhance the holding of free, orderly, honest ... elections through fair election practices . But as you said, we will put that aside to discuss later one. Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly adequate in that it says that it shall ensure candidates for public office that may be free from any form of harassment and discrimination.

Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is a form of harassment or discrimination. And so I think that in the effort at leveling the playing field, we can cover this and it should not be considered a rider. SEN. LEGARDA-LEVISTE: I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is covered in the Declaration of Principles and in the objective of this bill. And therefore, I hope that the House contingent would agree to this so that we can finish it now. And it expressly provides for fair election practices because ... THE CHAIRMAN (SEN. ROCO): Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is more generic so that then we have less of an objection on constitutionality. I think thats the theory. So, there is acceptance of this. Maybe we should not call it na limitation on elected officials. Maybe we should say the special provision on elected officials. So how is that? Alam mo ito ... REP. MARCOS: I think we just change the Section 1, the short title. THE CHAIRMAN (SEN. ROCO): Also, Then we say - - on the short title of the Act, we say ... REP. MARCOS: What if we say fair election practices? Maybe that should be changed... THE CHAIRMAN (SEN. ROCO): O, sige, fine, fine. Lets a brainstorm. Equal... REP. PADILLA: Mr. Chairman, why dont we use An Act rationalizing the holding of free, orderly, honest, peaceful and credible elections, amending for the purpose Batasang Pambansa known as the Omnibus Election Code? THE CHAIRMAN (SEN. ROCO): Why dont we remove fair and then this shall be cited as Election Practices Act? REP. PICHAY: Thats not an election practice. Thats a limitation. THE CHAIRMAN (SEN. ROCO): Ah - - - ayaw mo iyong practice. O, give me another noun. REP. MARCOS: The Fair Election. THE CHAIRMAN (SEN. ROCO): O, Fair Election Act. REP. MACARAMBON: Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free, orderly, honest, peaceful and ensure equal opportunity for public service through fair election practices? REP. PICHAY: Fair election practices?

REP. MACARAMBON: Yeah. To ensure equal opportunity for public service through fair ... THE CHAIRMAN (SEN. ROCO): Wala nang practices nga. REP. PICHAY: Wala nang practices. THE CHAIRMAN (SEN. ROCO): It shall be cited as Fair Election Act. (Informal discussions) REP. PICHAY: Approve na iyan. THE CHAIRMAN (SEN. ROCO): Done. So, okay na iyon. The title will be Fair Election Act. The rest wala nang problema ano? VOICES: Wala na. REP. MACARAMBON: Wala na iyong practices? THE CHAIRMAN (SEN. ROCO): Wala na, wala na. Mahina tayo sa practice, eh. O, wala na? We will clean up. REP. MARCOS: Title? THE CHAIRMAN (SEN. ROCO): The short title, This Act ... THE CHAIRMAN (REP. SYJUCO): Youre back to your No. 21 already. REP. MARCOS: The full title, the same? THE CHAIRMAN (SEN. ROCO): Iyon na nga. The full title is An Act to enhance the holding ... Thats the House version, eh, dahil pareho, hindi ba? Then the short title This Act shall be known as the Fair Election Act.[38] The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or discrimination that had to be done away with and repealed. The executive department found cause with Congress when the President of the Philippines signed the measure into law. For sure, some sectors of society and in government may believe that the repeal of Section 67 is bad policy as it would encourage political adventurism. But policy matters are not the concern of the Court. Government policy is within the exclusive dominion of the political branches of the government. [39] It is not for this Court to look into the wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or unwise,

whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the serious conflict of opinions does not suffice to bring them within the range of judicial cognizance.[40] Congress is not precluded from repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra[41] upholding the validity of the provision and by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws the fair, honest and orderly election of truly deserving members of Congress is achieved. Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the notice, action and study of the legislators and the public.[42] In this case, it cannot be claimed that the legislators were not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively deliberated upon by the members of the House. In fact, the petitioners, as members of the House of Representatives, expressed their reservations regarding its validity prior to casting their votes. Undoubtedly, the legislators were aware of the existence of the provision repealing Section 67 of the Omnibus Election Code.

Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution[43] The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. [44] The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. [45] Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. [46] On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure[47] while others serve at the pleasure of the appointing authority.[48] Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.[49] By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure

in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-avis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

The Enrolled Bill Doctrine Is Applicable In this Case Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist that the entire law should be nullified. They contend that irregularities attended the passage of the said law particularly in the House of Representatives catalogued thus: a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its session on February 5, 2001; No communication from the Senate for a conference on the compromise bill submitted by the BCC on November 29, 2000; The new Report submitted by the 2nd/3rd BCC was presented for approval on the floor without copies thereof being furnished the members; The 2nd/3rd BCC has no record of its proceedings, and the Report submitted by it was not signed by the Chairman (Sen. Roco) thereof as well as its senator-members at the time it was presented to and rammed for approval by the House; There was no meeting actually conducted by the 2 nd/3rd BCC and that its alleged Report was instantly made and passed around for the signature of the BCC members; The Senate has no record of the creation of a 2nd BCC but only of the first one that convened on November 23, 2000; The Effectivity clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill submitted by the BCC that convened on November 20, 2000, were couched in terms that comply with the publication required by the Civil Code and jurisprudence, to wit: ... However, it was surreptitiously replaced in its final form as it appears in 16, R.A. No. 9006, with the provision that This Act shall take effect immediately upon its approval; h. The copy of the compromise bill submitted by the 2 nd/3rd BCC that was furnished the members during its consideration on February 7, 2001, did not have the same 16 as it now appears in RA No. 9006, but 16 of the compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was made; The alleged BCC Report presented to the House on February 7, 2001, did not contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure; and

b.

c.

d.

e.

f.

g.

i.

j.

The disappearance of the Cayetano amendment, which is Section 12 of the compromise bill submitted by the BCC. In fact, this was the subject of the purported proposed amendment to the compromise bill of Member Paras as stated in paragraph 7 hereof. The said provision states, thusly: Sec. 12. Limitation on Elected Officials. Any elected official who runs for president and vice-president shall be considered ipso facto resigned from his office upon the filing of the certificate of candidacy.[50]

The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not persuaded. Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of Congress that it was passed are conclusive of its due enactment. A review of cases[51] reveals the Courts consistent adheren ce to the rule. The Court finds no reason to deviate from the salutary rule in this case where the irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g., creation of the 2nd or 3rd Bicameral Conference Committee by the House. This Court is not the proper forum for the enforcement of these internal rules of Congress, whether House or Senate. Parliamentary rules are merely procedural and with their observance the courts have no concern. [52] Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must be resolved in its favor. The Court reiterates its ruling in Arroyo v. De Venecia,[53] viz.: But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmea v. Pendatun, it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure.

The Effectivity Clause Is Defective Finally, the Effectivity clause (Section 16) of Rep. Act No. 9006 which provides that it shall take effect immediately upon its approval, is defective. However, the same does not render the entire law invalid. In Taada v. Tuvera,[54] this Court laid down the rule: ... the clause unless it is otherwise provided refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislator may make the law effective immediately upon approval, or on any other date without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-period shall be shortened or extended.[55] Following Article 2 of the Civil Code[56] and the doctrine enunciated in Taada, Rep. Act No. 9006, notwithstanding its express statement, took effect fifteen days after its publication in the Official Gazette or a newspaper of general circulation. In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that the courts do not involve themselves with nor delve into the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine whether it transcends constitutional limitations or the limits of legislative power. [57] No such transgression has been shown in this case.

WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs. SO ORDERED.

Farinas vs Executive Secretary, G.R. No. 147387, December 10, 2003 Posted by Pius Morados on November 10, 2011 (Public Officer, Difference between appointive officials and elective officials) Facts: Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and VicePresident, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The petitioners assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66.Candidates holding appointive office or position. Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Respondents contends that there is no violation of the equal protection clause of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials are not elected by popular will. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. Issue: WON the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones. Held: No. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions.On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. Moreover, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Hence, equal protection is not infringed.

G.R. No. 100113 September 3, 1991 RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents. Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. The 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied) Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office. Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. ( Black's Law Dictionary, 3rd ed.) The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he: ... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside

of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852) This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in mattersconnected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation . They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours) The University of the Philippines Law Center in conducting orientation briefing for new lawyers (19741975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service. One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312) Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23) The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law." MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years". To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit . This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up. MR. OPLE. Will Commissioner Foz yield to just one question. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes. MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Thank you. ... ( Emphasis supplied) Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." ( Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.). The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. ( State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.). The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. ( Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. ( Ibid.). In this regard thus, the dominance of litigation in the public mind reflects history, not reality. ( Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687). By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. ( Ibid.). Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.). In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making. Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts. In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom. Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity. Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making. Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry. Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have inhouse counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house. A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management . ( Emphasis supplied.) In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business. Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4). This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues. Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself. These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning. Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nationstate is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas. Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied) Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes. In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied) Regarding the skills to apply by the corporate counsel, three factors are apropos: First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers including corporate counsels. (Emphasis supplied) Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied) Third Modeling for Negotiation Management . Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point. [Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office . The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions. This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4). The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4). Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC. Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void. Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo) After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission,

Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied) Just a word about the work of a negotiating team of which Atty. Monsod used to be a member. In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied) After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. ( Ibid., p. 13). In the same vein, lawyers play an important role in any debt restructuring program . For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied) Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. ( See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied) A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265). Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied) No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated: It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied) The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200) The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides: The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law , which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent. Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined. Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the

Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers. Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President? We now proceed: The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown. Additionally, consider the following: (1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative. (2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear. (3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirma Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate. Finally, one significant legal maxim is: We must interpret not by the letter that killeth, but by the spirit that giveth life. Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that No blade shall touch his skin; No blood shall flow from his veins. When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement. In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED. Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.) Sarmiento, J., is on leave. Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring: I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting: The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman. After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met. The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries." The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual,repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily. Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law. As aptly held by this Court in the case of People vs. Villanueva:
2

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied). It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states: 1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864). 2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) 3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra) 4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman. The following relevant questions may be asked: 1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law? 2. Did respondent perform such tasks customarily or habitually? 3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman? Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman. While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4 Essentially, the word private practice of law implies that one must have presented himself to be in theactive and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services. ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position. CRUZ, J., dissenting: I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint. To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review. In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choosebetween two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed. If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments. Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation." The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board. The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable." The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions. The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-atlaw whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections. I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition. GUTIERREZ, JR., J., dissenting: When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result. Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution. Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits. A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law. Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations? The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period. I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there? The professional life of the respondent follows: 1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following: 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania 2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation 3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation 4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies 5. 1976-1978: Finaciera Manila Chief Executive Officer

6. 1978-1986: Guevent Group of Companies Chief Executive Officer 7. 1986-1987: Philippine Constitutional Commission Member 8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member 9. Presently: Chairman of the Board and Chief Executive Officer of the following companies: a. ACE Container Philippines, Inc. b. Dataprep, Philippines c. Philippine SUNsystems Products, Inc. d. Semirara Coal Corporation e. CBL Timber Corporation Member of the Board of the Following: a. Engineering Construction Corporation of the Philippines b. First Philippine Energy Corporation c. First Philippine Holdings Corporation d. First Philippine Industrial Corporation e. Graphic Atelier f. Manila Electric Company g. Philippine Commercial Capital, Inc. h. Philippine Electric Corporation i. Tarlac Reforestation and Environment Enterprises j. Tolong Aquaculture Corporation k. Visayan Aquaculture Corporation l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22) There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer. The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law? The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years." Some American courts have defined the practice of law, as follows: The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited. It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank , 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776) For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit: xxx xxx xxx Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned." xxx xxx xxx Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773) xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied) In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]): xxx xxx xxx ... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112) It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit: l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115) xxx xxx xxx While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate. I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC. I vote to GRANT the petition. Bidin, J., dissent

Separate Opinions NARVASA, J., concurring: I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition. Melencio-Herrera, J., concur. PADILLA, J., dissenting: The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman. After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met. The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries." The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual,repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily. Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law. As aptly held by this Court in the case of People vs. Villanueva:
2

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied). It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states: 1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864). 2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) 3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra) 4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman. The following relevant questions may be asked: 1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law? 2. Did respondent perform such tasks customarily or habitually? 3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman? Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman. While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4 Essentially, the word private practice of law implies that one must have presented himself to be in theactive and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services. ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position. CRUZ, J., dissenting: I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint. To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review. In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choosebetween two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed. If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments. Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation." The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board. The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable." The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions. The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-atlaw whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections. I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition. GUTIERREZ, JR., J., dissenting: When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result. Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution. Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits. A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law. Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations? The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period. I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there? The professional life of the respondent follows: 1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following: 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania 2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation 3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation 4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies 5. 1976-1978: Finaciera Manila Chief Executive Officer

6. 1978-1986: Guevent Group of Companies Chief Executive Officer 7. 1986-1987: Philippine Constitutional Commission Member 8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member 9. Presently: Chairman of the Board and Chief Executive Officer of the following companies: a. ACE Container Philippines, Inc. b. Dataprep, Philippines c. Philippine SUNsystems Products, Inc. d. Semirara Coal Corporation e. CBL Timber Corporation Member of the Board of the Following: a. Engineering Construction Corporation of the Philippines b. First Philippine Energy Corporation c. First Philippine Holdings Corporation d. First Philippine Industrial Corporation e. Graphic Atelier f. Manila Electric Company g. Philippine Commercial Capital, Inc. h. Philippine Electric Corporation i. Tarlac Reforestation and Environment Enterprises j. Tolong Aquaculture Corporation k. Visayan Aquaculture Corporation l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22) There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer. The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law? The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years." Some American courts have defined the practice of law, as follows: The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited. It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank , 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776) For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit: xxx xxx xxx Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned." xxx xxx xxx Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773) xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied) In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]): xxx xxx xxx ... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112) It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit: l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115) xxx xxx xxx While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate. I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC. I vote to GRANT the petition. Bidin, J., dissent

G.R. NO. L-69137 August 5, 1986 FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees. Jose Batiquin for petitioner-appellant. Fausto F. Tugade for private respondent-appellee.

CRUZ, J.: Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be briefly narrated as follows: The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as "temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided "there (was) no pending administrative case against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as Administrative Officer II is hereby revoked." 3 The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and the private respondent's title. The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter? The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his office without violation of the Constitution. 5

While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary. The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not the appointment it sell And what made theapproval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the position. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. As Justice Ramon C. Fernandez declared in an earlier case: It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not empowered to determine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official on the nature or kind of the appointment to be extended. 8 Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service merely as a check to assure compliance with Civil Service Laws. 9 Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then considered part of the appointing process, which was held complete only after such confirmation. 11 Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of determining whether or not the person appointed meets all the required conditions laid down by the law. It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shag have inter alia the power to:

9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (emphasis supplied) However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities. Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of outsiders who have the appropriate eligibility. 13 There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party may be in power. WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February 18, 1983. No costs. SO ORDERED. FELIMON LUEGO vs. CIVIL SERVICE COMMISSION G. R. No. L-69137, August 6, 1986 FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on 18 February 1983. The appointment was describ ed as permanent but the Civil Service Commission approved it as temporary. On 22 March 1984, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and accordingly directed herein private respondent in place of petitioners position. The private respondent was so appointed on 28 June 1984, by the new mayor, Mayor Ronald Duterte. The petitioner is now invoking his earlier permanent appointment as well as to question the Civil Service Commissions order and the private respondents title.

ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter. RULING: The Supreme Court ruled in the negative. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. Hence, the Civil Service Commissions resolution is set aside.

Luego vs CSC, 143 SCRA 327 Posted by Pius Morados on November 7, 2011 (Public Officer, Appointments, CSC) Facts: Petitioner was appointed Admin Officer II, Office of the City Mayor, Cebu City, by Mayor Solon. The appointment was described as permanent but the CSC approved it as temporary, subject to the final action taken in the protest filed by the private respondent and another employee. Subsequently, the CSC found the private respondent better qualified than the petitioner for the contested position and, accordingly directed that the latter be appointed to said position in place of the petitioner whose appointment is revoked. Hence, the private respondent was so appointed to the position by Mayor Duterte, the new mayor. The petitioner, invoking his earlier permanent appointment, questions the order and the validity of the respondents appointment. Issue: WON the CSC is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement. Held: No. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent CSC to reverse him and call it temporary. Section 9(h), Art V of the Civil Service Decree provides that the Commission shall have inter alia the power to approve all appointments, whether original or promotional, to positions in the civil service .and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. The CSC is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the CSC Law. When the appointee is qualified and all the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the CSC Laws. CSC is without authority to revoke an appointment because of its belief that another person was better qualified, which is an encroachment on the discretion vested solely in the city mayor.

[G.R. No. 98107. August 18, 1997]

BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and NATIONAL HOUSING CORPORATION, respondents.

DECISION HERMOSISIMA, JR., J.: This is a petition for certiorari to set aside the Decision of the National Labor Relations Commission (NLRC) dated March 14, 1991, which reversed the Decision dated May 21, 1990 of Labor Arbiter Manuel R. Caday, on the ground of lack of jurisdiction. Petitioner Benjamin C. Juco was hired as a project engineer of respondent National Housing Corporation (NHC) from November 16, 1970 to May 14, 1975. On May 14, 1975, he was separated from the service for having been implicated in a crime of theft and/or malversation of public funds. On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC with the Department of Labor. On September 17, 1977, the Labor Arbiter rendered a decision dismissing the complaint on the ground that the NLRC had no jurisdiction over the case.[1] Petitioner then elevated the case to the NLRC which rendered a decision on December 28, 1982, reversing the decision of the Labor Arbiter.[2] Dissatisfied with the decision of the NLRC, respondent NHC appealed before this Court and on January 17, 1985, we rendered a decision, the dispositive portion thereof reads as follows: WHEREFORE, the petition is hereby GRANTED. The questioned decision of the respondent National Labor Relations Commission is SET ASIDE. The decision of the Labor Arbiter dismissing the case before it for lack of jurisdiction is REINSTATED.[3] On January 6, 1989, petitioner filed with the Civil Service Commission a complaint for illegal dismissal, with preliminary mandatory injunction.[4] On February 6, 1989, respondent NHC moved for the dismissal of the complaint on the ground that the Civil Service Commission has no jurisdiction over the case.[5] On April 11, 1989, the Civil Service Commission issued an order dismissing the complaint for lack of jurisdiction. It ratiocinated that: The Board finds the comment and/or motion to dismiss meritorious. It was not disputed that NHC is a government corporation without an original charter but organized/created under the Corporate Code. Article IX, Section 2 (1) of the 1987 Constitution provides: The civil service embraces all branches, subdivisions, instrumentalities and agencies of the government, including government owned and controlled corporations with original charters. (underscoring supplied) From the aforequoted constitutional provision, it is clear that respondent NHC is not within the scope of the civil service and is therefore beyond the jurisdiction of this board. Moreover, it is pertinent to state that the 1987 Constitution was ratified and became effective on February 2, 1987. WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed.[6] On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal dismissal with preliminary mandatory injunction against respondent NHC.[7] On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday ruled that petitioner was illegally dismissed from his employment by respondent as there was evidence in the record that the criminal case against him was purely fabricated, prompting the trial court to dismiss the charges against him. Hence, he concluded that the dismissal was illegal as it was devoid of basis, legal or factual.

He further ruled that the complaint is not barred by prescription considering that the period from which to reckon the reglementary period of four years should be from the date of the receipt of the decision of the Civil Service Commission promulgated on April 11, 1989. He also ratiocinated that: It appears x x x complainant filed the complaint for illegal dismissal with the Civil Service Commission on January 6, 1989 and the same was dismissed on April 11, 1989 after which on April 28, 1989, this case was filed by the complainant. Prior to that, this case was ruled upon by the Supreme Court on January 17, 1985 which enjoined the complainant to go to the Civil Service Commission which in fact, complainant did. Under the circumstances, there is merit on the contention that the running of the reglementary period of four (4) years was suspended with the filing of the complaint with the said Commission. Verily, it was not the fault of the respondent for failing to file the complaint as alleged by the respondent but due to, in the words of the complainant, a legal knot that has to be untangled. [8] Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of which reads: "Premises considered, judgment is hereby rendered declaring the dismissal of the complainant as illegal and ordering the respondent to immediately reinstate him to his former position without loss of seniority rights with full back wages inclusive of allowance and to his other benefits or equivalent computed from the time it is withheld from him when he was dismissed on March 27, 1977, until actually reinstated. [9] On June 1, 1990, respondent NHC filed its appeal before the NLRC and on March 14, 1991, the NLRC promulgated a decision which reversed the decision of Labor Arbiter Manuel R. Caday on the ground of lack of jurisdiction.[10] The primordial issue that confronts us is whether or not public respondent committed grave abuse of discretion in holding that petitioner is not governed by the Labor Code. Under the laws then in force, employees of government-owned and /or controlled corporations were governed by the Civil Service Law and not by the Labor Code. Hence, Article 277 of the Labor Code (PD 442) then provided: "The terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations shall be governed by the Civil Service Law, rules and regulations x x x. The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided: The Civil Service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations. Although we had earlier ruled in National Housing Corporation v. Juco,[11] that employees of government-owned and/or controlled corporations, whether created by special law or formed as subsidiaries under the general Corporation Law, are governed by the Civil Service Law and not by the Labor Code, this ruling has been supplanted by the 1987 Constitution. Thus, the said Constitution now provides: The civil service embraces all branches, subdivision, instrumentalities, and agencies of the Government, including government owned or controlled corporations with original charter. (Article IX-B, Section 2[1]) In National Service Corporation (NASECO) v. National Labor Relations Commission,[12] we had the occasion to apply the present Constitution in deciding whether or not the employees of NASECO are covered by the Civil Service Law or the Labor Code notwithstanding that the case arose at the time when the 1973 Constitution was still in effect. We ruled that the NLRC has jurisdiction over the employees of NASECO on the ground that it is the 1987 Constitution that governs because it is the Constitution in place at the time of the decision. Furthermore, we ruled that the new phrase with original charter means that government-owned and controlled corporations refer to corporations chartered by special law as distinguished from corporations organized under the Corporation Code. Thus, NASECO which had been

organized under the general incorporation stature and a subsidiary of the National Investment Development Corporation, which in turn was a subsidiary of the Philippine National Bank, is excluded from the purview of the Civil Service Commission. We see no cogent reason to depart from the ruling in the aforesaid case. In the case at bench, the National Housing Corporation is a government owned corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporation, dated January 1, 1959. Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 1459, the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the Peoples Homesite and Housing Corpora tion.[13] Considering the fact that the NHA had been incorporated under act 1459, the former corporation law, it is but correct to say that it is a government-owned or controlled corporation whose employees are subject to the provisions of the Labor Code. This observation is reiterated in recent case of Trade Union of the Philippines and Allied Services (TUPAS) v. National Housing Corporation,[14] where we held that the NHA is now within the jurisdiction of the Department of Labor and Employment, it being a government-owned and/or controlled corporation without an original charter. Furthermore, we also held that the workers or employees of the NHC (now NHA) undoubtedly have the right to form unions or employees organization and that there is no impediment to the holding of a certification election among them as they are covered by the Labor Code. Thus, the NLRC erred in dismissing petitioners complaint for lack of jurisdiction because the rule now is that the Civil Service now covers only government-owned or controlled corporations with original charters.[15] Having been incorporated under the Corporation Law, its relations with its personnel are governed by the Labor Code and come under the jurisdiction of the National Labor Relations Commission. One final point. Petitioners have been tossed from one forum to another for a simple illegal dismissal case. It is but apt that we put an end to his dilemma in the interest of justice. WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089 dated March 14, 1991 is hereby REVERSED and the Decision of the Labor Arbiter dated May 21, 1990 is REINSTATED. SO ORDERED.

Juco vs. NLRC (1997) POSTED BY ADMIN ON NOVEMBER - 7 - 2010 ADD COMMENTS CASE TITLE: JUCO vs. NATIONAL LABOR RELATIONS COMMISSION GR NO: G.R. No. 98107 YEAR: 1997 ISSUE/TOPIC: CSC, jurisdiction over corporations DIGEST Petitioner Benjamin Juco worked as a project engineer of respondent National Housing Corporation (NHC). He was separated from service for having been implicated in a crime of theft and/or malversation of public funds. On March 25, 1977, petitioner filed a complaint for illegal dismissal against NHC with the Department of Labor. It was dismissed on the ground that the NLRC had no jurisdiction over the case. Upon appeal to the the NLRC, the NLRC reversed the Labor Arbiters dismissal. NHC then appealed before the Supreme Court (SC) and on January 17, 1985, the SC set aside the NLRCs decision thereby reinstating the Labor Arbiters dismissal. On January 6, 1989, petitioner filed with the Civil Service Commission (CSC) a complaint for illegal dismissal with preliminary mandatory injunction. Upon motion to dismiss by NHC on the ground of the CSCs lack of jurisdiction over the dispute, the CSC dismissed the complaint. The dismissal was grounded on Article IX, Sec. 2 (1) of the 1987 Constitution, which provides that The civil service embraces all branches, subdivision, instrumentalities and agencies of the Government, including government owned

andcontrolled corporations with original charters. (ital ics supplied) Considering that NHC was a GOCC without an original charter, it being created under the Corporation Law, the CSC dismissed the complaint. On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal dismissal with preliminary mandatory injunction against private respondent NHC. Labor Arbiter Caday ruled in his favor as there was evidence that the criminal case against petitioner was fabricated and therefore there was no basis legal or factual for his dismissal. On appeal by NHC, the NLRC reversed the Arbiter Caday on the ground of lack of jurisdiction. ISSUE: Whether or not petitioners case is governed by the Labor Code HELD: Yes, it is governed by the Labor Code. NLRCs dismissal reversed. At the time petitioner filed his first complaint, jurisdiction over GOCCS was indeed with the CSC, as provided for in Art. 277 of the Labor Code (PD 442), which is the same as Art. II-B, sec. 1(1) of the 1973 Constitution. However, when the 1987 Constitution took effect, the jurisdiction of the CSC had been limited only to GOCCs with an original charter. Since the NHC was created under the former Corporation Law, under the present Constitution, it would be governed by the Labor Code.

[G.R. No. 123708. June 19, 1997]

CIVIL

SERVICE COMMISSION and PHILIPPINE AMUSEMENT CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent. DECISION

AND

GAMING

REGALADO, J.: The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein private respondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corporation (PAGCOR), but without prejudice to the filing of administrative charges against him if warranted. [1] The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS) member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of Directors of PAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence Division of PAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by respondent. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results. On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requesting reinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992, he appealed to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent was not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the decision of the MSPB.[2] Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. However, in a resolution dated August 15, 1995,[3] the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 which took effect on June 1, 1995.

On September 14, 1995, the court of Appeals rendered its questioned decision with the finding that herein respondent Salas is not a confidential employee, hence he may not be dismissed on the ground of loss of confidence. In so ruling, the appellate court applied the "proximity rule" enunciated in the case of Grio, et al. vs. Civil Service Commission, et al.[4]. It likewise held that Section 16 of Presidential Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution. Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salas is a confidential employee. Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for several reasons, viz.: (1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Section 16 thereof that all employees of the casinos and related services shall be classified as confidential appointees; (2) In the case of the Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al.,[5] The Supreme Court has classified PAGCOR employees as confidential appointees; (3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointees by operation of law; and (4) Based on his functions as a member of the ISS, private respondent occupies a confidential position.

Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. They additionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs in the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation. On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and not his designation or title, which determines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCOR employees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of the classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al.[6] We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied. Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959), which was then in force when Presidential Decree No. 1869 creating the Philippine Amusement and Gaming Corporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as policydetermining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicated thereon, with the text thereof providing as follows: "All positions in the corporation, whether technical, administrative, professional or managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel management policies set by the Board of Directors. All employees of the casinos and related services shall be classified as 'confidential' appointees." On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence after it supposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that he is considered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration of a confidential employee's term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis. In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed to

have been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution.[7] This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)." However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as 'confidential appointees.'" While such executive declaration emanated merely from the provisions of Section 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determining, primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the Administrative Code of 1987.[8] This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute and allencompassing. Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a position may be considered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; and, secondly in the absence of such declaration, when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.[9] At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis, however, of the second category evinces otherwise. When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." In the case of Piero, et al. vs. Hechanova, et al.,[10] the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law, thus: "The change from the original wording of the bill (expressly declared by law x x x to be policydetermining, etc.) to that finally approved and enacted ('or which are policy-determining, etc. in nature') came about because of the observations of Senator Taada, that as originally worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policydetermining, which should not be the case. The Senator urged that since the Constitution speaks of positions which are 'primarily confidential, policy-determining, or highly technical in nature', it is not within the power of Congress to declare what positions are primarily confidential or policy-determining. 'It is the nature alone of the position that determines whether it is policy-determining or primarily confidential.' Hence, the Senator further observed, the matter should be left to the 'proper implementation of the laws, depending upon the nature of the position to be filled', and if the position is 'highly confidential' then the President and the Civil Service Commissioner must implement the law. To a question of Senator Tolentino, 'But in positions that involved both confidential matters and matters which are routine, x x x who is going to determine whether it is primarily confidential?' Senator Taada replied: 'SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not" (Italics in the original text). Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. And the court in the aforecited case explicitly decreed that executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII (now Section 2[3], Article IX-

B) of the Constitution.[11] In other words, Section 16 of Presidential Decree No. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure. The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines.[12] It may well be observed that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to those which are the policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness to be determined as far as practicable by competitive examination." Let it here be emphasized, as we have accordingly italicized them, that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified. The question that may now be asked is whether the Piero doctrine -- to the effect that notwithstanding any statutory classification to the contrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whether a position is primarily confidential, policy-determining or highly technical -- is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987,[13] Book V of which deals specifically with the Civil Service Commission, considering that from these later enactments, in defining positions which are policydetermining, primarily confidential or highly technical, the phrase "in nature" was deleted. [14] We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit: "MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-determining or primarily confidential or highly technical? FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court. The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Since the term 'highly technical' means something beyond the ordinary requirements of the profession, it is always a question of fact. MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld? FR. BERNAS. I agree that that it should be the general rule; that is why we are putting this as an exception. MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the source of practices which amount to the spoils system. FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primarily confidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to make it such; it is the nature of the duties which makes a position primarily confidential.

MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical as an exception is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers. FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that there are certain positions which should not be determined by competitive examination. For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies, for that matter? There are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit and fitness" (Italics supplied).[15] It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position is primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." Accordingly, the Piero doctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected. We likewise find that in holding that herein private respondent is not a confidential employee, respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but still authoritative case of De los Santos vs. Mallare, et al.,[16] which held that: "Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. x x x" (Emphasis supplied). This was reiterated in Piero, et al. vs. Hechanova, et al., supra , the facts of which are substantially similar to the case at bar, involving as it did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held that the mere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that their positions are primarily confidential. After quoting the foregoing passage from De los Santos, it trenchantly declared: "As previously pointed out, there are no proven facts to show that there is any such close intimacy and trust between the appointing power and the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. Certainly, it is extremely improbable that the service demands any such closed trust and intimate relation between the appointing official and, not one or two members alone but the entire Customs patrol (Harbor Police) force, so that every member thereof can be said to hold 'primarily confidential' posts". (Stress supplied). It can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was, to repeat, the latter's belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of possible

betrayal of personal trust or confidential matters of state. Withal, where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant. [17] Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of PAGCOR which would otherwise place him in the category of a confidential employee, to wit: 1. As an Internal Security Staff member, private respondent routinely a. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities, misbehavior, illegal transactions and other anomalous activities among the employees and customers, b. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistakes committed on the table and in other areas; c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any unwanted incidents at the gaming and non-gaming areas; d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final shuffling; e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or during transfer of yields to Treasury.[18] Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said that honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such close intimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would ensure "freedom from misgivings of betrayals of personal trust."[19] 2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of their official duties. An ISS members is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directives of the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowest in the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee. 3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class 12. Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debate that private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck by the ordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the position occupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appears nothing to suggest that private respondents's position was "highly" or much less, "primarily" confidential in nature. The fact that, sometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature does not suffice to characterize his position as primarily confidential.[20] In addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al., ante, is misleading. What was there stated is as follows: "The record shows that the separation of the private respondent was done in accordance with PD 1869, which provides that the employees of the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. The act that he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled her to damages under the Civil Code." (Italics ours).

Thus, the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employee, for the simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue therein. That decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidently, therefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases where its validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where that question is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law. [21] WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto. SO ORDERED.

G.R. No. L-20390

November 29 1968

RAUL R. INGLES, ROALDO G. ADVIENTO, ISABEL C. CORPUS, CONSUELO M. VILLANUEVA and ESPERANZA M. GUTIERREZ, plaintiffs-appellants, vs. AMELITO R. MUTUC and BALDOMERO DAVOCOL, defendants-appellees. Jose S. Zafra and Enrique D. Tayag for plaintiffs-appellants. Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor Jorge R. Coquia for defendantsappellees.

CONCEPCION, C.J.: Direct appeal by the plaintiffs from a decision of the Court of First Instance of Manila dismissing their complaint herein, with costs against them. Although most of the allegations in said complaint had been denied in defendants' answer, the basic facts were admitted in the memoranda filed by both parties with the lower court and seemingly in the course of their oral argument therein. Hence, the case was deemed submitted to said court and the same rendered its appealed decision, without receiving any evidence, with an opening statement to the effect that "the facts of this case are undisputed." Indeed, it is conceded that plaintiffs herein are civil service eligibles, holding positions, in the budget for the fiscal year 1961-1962, under the Office of the President. Plaintiff Raul R. Ingles has a first-grade civil service eligibility, holding a WAPCO-classified position of Senior Executive Assistant II, with a compensation of P6,888.00 a year, and eight (8) years of service in the Government. Plaintiff Roaldo G. Adviento is, in turn, a second-grade civil service eligible, holding a WAPCO-classified position of Clerk I, with a compensation of P1,800.00 a year, and four (4) years of service in the Government, whereas plaintiff Isabel C. Corpus is a third-grade civil service eligible, holding a WAPCO-classified position of Supervising Clerk I, with a compensation of P2,544.00 a year, and eight (8) years of service in the Government. Plaintiff Consuelo M. Villanueva is another third-grade civil service eligible, holding a WAPCO-classified position of Clerk I, with a compensation of P1,800.00 a year, and ten (10) years of service in the Government. Upon the other hand, plaintiff Esperanza M. Gutierrez is a third-grade civil service eligible, holding a WAPCO-classified position of Stenographer, with a compensation of P1,980.00 a year, and eight (8) years of service in the Government. About the second week of January, 1962, plaintiffs received a communication of the then Executive Secretary, Amelito R. Mutuc, advising them that their services in the Government were terminated as of January 1, 1962. Plaintiffs appealed from this action to the President, on or about January 26, 1962. A month later, or on February 27, 1962, they received a letter of Mr. Mutuc, acting "by authority of the President," denying the reconsideration prayed for.

Soon thereafter, or on March 24, 1962. plaintiffs commenced the present action, in the Court of First Instance of Manila, against said Executive Secretary and the Cash Disbursing Officer in the Office of the President, alleging that they (plaintiffs) had been removed from office without cause and without due process, and praying, accordingly, that judgment be rendered ordering: (1) Defendant Executive Secretary Amelito R. Mutuc to certify the names of the petitioners in the payrolls of the Office of the President, to be retroactive as of January 1, 1962, the effective date of petitioners' illegal termination from employment; (2) Defendant Baldomero Davocol to pay the emoluments and/or salaries to which plaintiffs are entitled, effective as of January 1, 1962, the date of their illegal termination from service; (3) Defendants to perform their duties as aforesaid and to continue paying plaintiffs their emoluments and/or salaries to which said plaintiffs are entitled to in accordance with law; (4) Defendants to allow plaintiffs to continue in the performance of their respective duties. 1 Soon thereafter, Salvador L. Marino was substituted in lieu of Amelito R. Mutuc as one of the defendants herein, the former having meanwhile assumed the office of Executive Secretary, which the latter vacated upon his appointment as Ambassador of the Philippines to the United States. Defendants maintained that the principal issue in this case "is whether or not the plaintiffs are occupying positions which are primarily confidential and, therefore, are subject to removal at the pleasure of the appointing power," and that this issue should be resolved in the affirmative. The trial court did so, with the result already adverted to. Defendants-appellees thus assume that all officer holding a position which is primarily confidential in nature is "subject to removal at the pleasure of the appointing power." This assumption is inaccurate. It is evidently based upon a statement in De los Santos vs. Mallare2 to the effect that "three specified cases of positions policy determining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution."3 This was, however, a mere obiter, because the office involved in said case that of City Engineer of Baguio did not belong to any of the excepted classes, and, hence, it was not necessary to determine whether its incumbents were removable or not at the pleasure of the appointing power. What is more, said obiter, if detached from the context of the decision of which it forms part, would be inconsistent with the constitutional command to the effect that "no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law," 4 and it is conceded that one holding in the Government a primarily confidential position is "in the Civil Service." In fact, in the De los Santos case, this Court cited with approval the view, expressed in Lacson vs. Romero 5 to the effect "that officers or employees in the unclassified" to which plaintiffs herein admittedly belong "as well as those in the classified service are protected by the above cited provision of the organic law." Again, the law alluded to in the Constitution, namely Section 32 of Republic Act No. 2260, provides: SEC. 32. Disciplinary Action. No officer or employee in the civil service shall be removed or suspended except for cause as provided by law and after due process; Provided, That a transfer from one position to another without reduction in rank or salary shall not be considered disciplinary when made in the interest of public service; Provided, further, That no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant; And provided, finally, That the respondent shall be entitled to a formal investigation if he so elects, in which case he shall have the right to appear and defend himself at said investigation in person or by counsel, to confront and cross-examine the witnesses against him, and to have the attendance of witnesses and production of documents in his favor by compulsory process of subpoena or subpoena duces tecum. This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office at the pleasure only of the appointing power. It should be noted, however, that when such pleasure

turns into displeasure, the incumbent is not "removed" or "dismissed" from office his "term" merely "expires," in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and can not be deemed "removed" or "dismissed" therefrom, upon the expiration of said term. The main difference between the former the primarily confidential officer and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not "removed" or"dismissed" from office his term has merely "expired". As we had occasion to point out in Manalang vs. Quitoriano,6"to remove an officer is to oust him from office before the expiration of his term." Accordingly, we held therein that the abolition of Manalang's office as Director of the Placement Bureau by a legislation drafted by him, creating the "National Employment Service," was not a "removal" from office and did not violate the Constitution. His right to hold said office of Director of the Placement Bureau had merely been extinguished in consequence of its abolition, in the same manner that it could have come to an end, without removal, through abandonment of office, retirement of the incumbent, or his reaching the statutory age limit, if any. Thus, after making the statement relied upon by respondents herein, regarding the power to dismiss at pleasure officers holding policy-determining, primarily confidential and highly technical positions, this Court added, in the aforementioned case of De los Santos vs. Mallare,7 that "it may truly be said that the good of the service itself demands that appointments coming under this category be terminable at the will of the officer that makes them." As regards the nature of the positions held by plaintiffs herein, the lower court would seem to have been impressed by the fact that their items form part of the budget for 1961-1962 for "The President's Private Office," under subdivision (a) thereof entitled "Private Secretaries"; that they handled "confidential matters"; and that, "while plaintiffs perform purely clerical work, the papers handled by them are highly confidential in nature." In this connection, it appears that the aforementioned subdivision (a) consisted of the following items: The President's Private Office (a) Private Secretaries 2. One private secretary to the President ......................... P9,000.00 3. One senior executive assistant II ................................... 6,888.00 4. One social secretary ......................................................... 6,240.00 5. One senior executive assistant I ..................................... 5,112.00 6. One senior executive assistant I ..................................... 4,860.00 7. One executive assistant ................................................... 3,984.00 8. One executive assistant ................................................... 3,984.00 9. One private secretary I ..................................................... 4,188.00 10. One translator II ............................................................... 2,808.00 11. One secretary .................................................................... 2,676.00 12. One secretary .................................................................... 2,544.00

13. Two stenographers at P1,980 ......................................... 3,960.00 14. One stenographer ............................................................. 1,980.00 15. One supervising clerk I ..................................................... 2,544.00 16. One clerk II ........................................................................... 2,196.00 17. One clerk II ........................................................................... 2,424.00 18. Three clerks I at P1,800 ....................................................... 5,400.00 19. Two clerks I at P1,800 ......................................................... 3,600.00 20. Two clerical aides at P1,440 ................................................ 2,880.00 8 and that, presumably, Ingles held item No. 3, Gutierrez either No. 13 or No. 14, Corpus No. 15 and Adviento and Villanueva either No. 18 or No. 19. With the exception of item No. 2, designated therein as private secretary, there is nothing in the other items above-quoted, particularly those held by plaintiffs herein, to indicate that their respective positions are "primarily confidential" in nature. On the contrary, the compensation attached and the designation given thereto suggest the purely, or, at least, mainly clerical nature of their work. The fact that they, at times, handle "confidential matters," does not suffice to characterize their " positions" as primarily confidential. Indeed, it is admitted that plaintiffs, likewise, handle "other routine matters," and it has not even been shown that their work is, at least, principally confidential. Indeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle matters of similar nature. The Presiding and Associate Justices of the Court of Appeals sometimes investigate, by designation of the Supreme Court, administrative complaints against judges of first instance, which are confidential in nature. Officers of the Department of Justice, likewise, investigate charges against municipal judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges against members of the Bar. All of these are "confidential" matters, but such fact does not warrant the conclusion that the office or position of all government physicians and all Judges, as well as the aforementioned assistant solicitors and officers of the Department of Justice are primarily confidential in character. Considering that plaintiffs herein are admittedly civil service eligibles, with several years of service in the Government, and that positions which are policy determining, primarily confidential and highly technical in nature are exceptions to the general rule governing Civil Service officers and employees, it was up to defendants-appellees to establish that plaintiffs belong to one of these excepted classes. This, defendantsappellees have failed, to accomplish. WHEREFORE, the decision appealed from should be, as it is hereby reversed, and another one shall be entered declaring that plaintiffs' removal from office was illegal and contrary to law, and that they are, accordingly, entitled to reinstatement to their respective offices and to the payment of their corresponding emoluments, from January 1, 1962, up to their actual reinstatement. It is so ordered.

G.R. No. L-35592 June 11, 1986 MEDARDO AG. CADIENTE, petitioner, vs. LUIS T. SANTOS, City Mayor of Davao City, MAXIMINO ASISTIDO, City Treasurer of Davao City, FELIX N. PEPITO, City Auditor of Davao City, and ATTY. VICTOR CLAPANO, respondents.

ALAMPAY, J.: Petition for review on certiorari of the decision of the Court of First Instance of Davao City, Branch I, in Civil Case No. 7571, entitle Ag. Cadierte vs. Mayor Luis T. Santos, et al." promulgated on August 23, 1972, which dismissed the petition for mandamus, quo warranto, with preliminary injunction filed by herein petitioner. On September 13, 1971, petitioner Cadiente was appointed by then Mayor Elias B. Lopez as City Legal Officer of Davao City. The appointment was duly attested to and/or approved as "permanent" by the Civil Service Commission under Section 24(b) of R.A. 2260. On January 6, 1972, the new and then incumbent City Mayor Luis T. Santos, herein respondent, sent a letter (Annex "H" to the Petition, p. 43, Rollo) to the petitioner advising the latter that his services as City Legal Officer of Davao City "are dispensed with effective upon receipt of said letter" on the ground that the position of City Legal Officer was primarily confidential in nature. This was the opinion rendered by the City Fiscal of Davao City on January 6, 1972, after being requested to submit his legal opinion on said matter. Respondent City Mayor appointed respondent Atty. Victor Clapano as City Legal Officer on January 6, 1972 to take effect on said date. Petitioner appealed to the Civil Service Commission on January 7, 1982, which rendered its decision in its lst Indorsement dated March 2, 1972, therein holding that the termination, removal and/or dismissal of petitioner is "without cause and without due process" and that the position of City Legal Officer "is not included among those positions enumerated in Sec. 5 of R.A. 2260 as belonging to the non-competitive service." Subsequently, on April 7, 1972, the City Council of Davao City passed Resolution No. 210, series of 1972, therein considering and recognizing herein petitioner Atty. Medardo Ag. Cadiente, as the rightful City Legal Officer of Davao City (Rollo, pp. 54-58). Despite this resolution, the public respondents in this case who are the City Mayor, the City Treasurer, and the City Auditor of Davao City, still declined and refused to recognize petitioner as the one entitled to the disputed position of City Legal Officer of Davao City. Meanwhile, in an Indorsement (Annex "O" to the Petition, p. 59) dated February 8, 1972, the Civil Service Commission returned the appointment of respondent Clapano to respondent City Mayor with the information that said office (Civil Service Commission) "overlooked the fact that the appointee was more than 57 years old at the time of his appointment and, therefore, authority for his appointment be first secured from the Office of the President pursuant to Section 6 of R.A. 728, as reinforced by Section 5, Civil Service Rule IV, which states that "no person shall be appointed or reinstated in the service if he is already 57 years of age, unless the President of the Philippines ... determines that he possesses special qualifications and his services are needed. Petitioner thus filed with the Court of First Instance of Davao City, Branch I, Civil Case No. 7571, for mandamus, quo warranto with preliminary injunction against the herein respondents, praying therein that: (a) respondent City Mayor be ordered to reinstate and/or allow him to continue performing his duties and functions as City Legal Officer of Davao City; (b) the appointment of respondent Clapano be declared illegal and invalid; and (c) respondents City Mayor, City Treasurer, and City Auditor be ordered to pay him all his salaries, wages, allowances, emoluments an other benefits due him as City Legal Officer from the time of his illegal dismissal until the termination of the suit. On August 23, 1972, the trial court rendered its decision dismissing the aforestated case, as it ruled that: The positions of Municipal Attorney, Provincial Attorney and City Legal Officer are by their very nature, primarily confidential, and therefore, belong to the non-competetive service under paragraph 1, section 5, Republic Act 2260, as amended, because the functions attached to the offices require the highest trust and confidence of the appointing authority on the appointee.... The approval of, and attestation to the appointment of petitioner Cadiente as permanent under Section 24(b) of R.A. 2260, as amended, by the Commissioner of Civil Service did not make the appointment permanent and the position fall under the competetive service. If, as

the Court has found, the position is primarily confidential, petitioner Cadiente held office at the pleasure of respondent Mayor and the position belongs to the non-competitive service. Motion for reconsideration of said decision having been denied in an Order dated September 23, 1972, the present petition to compel reinstatement and payment of back salaries, was filed with this Court on October 7, 1972. In the Resolution of this Court dated December 28, 1972, said petition was given due course. In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential". This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is one that depends on the highest degree of trust that the latter entertains for the counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 4176 (citing De los Santos vs. Mallaare 87 Phil. 289), the phrase primarily confidential' "denotes not only confidence in the 'aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse, without embarrassment on freedom from misgivings of betrayals of personal trust on confidential matters of state. (Emphasis supplied). The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separated from the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office-two different causes for the termination of official relations recognized in the Law of Public Officers. In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was not removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violation of the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for cause as provided by law" (Article XII-B, Section 1(3), 1973 Constitution). The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a removal or dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise: When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and the pleasure turns into a displeasure, the incumbent is not removed or dismissed from office-his term merely expires, in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term. The main difference between the former the primarily confidential officer-and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or dismissed from officehis term merely expired,

The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated that: The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, and thus their cessation involves no removal. WHEREFORE, the petition is hereby DENIED for lack of merit. SO ORDERED.

G.R. No. L-22562

October 22, 1966

LEON S. PIERO, JESUS SAMANIEGO, SILVESTRE ATANACIO, JOSE CABRERA, RUFO CRUZ, LEONARDO DEL ROSARIO, RIZALDO GRANADA, EPITACIO GUEVARRA, ISMAEL C. HERNANDEZ, SEGUNDINO MANIMBO, DANIEL G. MENDOZA, CELEDONIO P. PAZ, NORBERTO SANTOS, ALEJANDRO SEVILLA, ET AL.,petitioners-appellees, vs. RUFINO HECHANOVA, as, Acting Secretary of Finance, ALBERTO DE JOYA, as Acting Commissioner of Customs and THE AUDITOR OF THE BUREAU OF CUSTOMS, ET AL., respondentsappellants. Jose W. Diokno for petitioners-appellees. Office of the Solicitor General for respondents-appellants. REYES, J.B.L., J.: The Government has interposed a direct appeal against the judgment of the Court of First Instance of Manila, in its Case No. 54611, ordering the Secretary of Finance, the Commissioner of Customs and the Customs Auditor to reinstate the private appellees to their respective positions in the Customs Patrol Service, with payment of their back salaries, and ousting those who replaced them. Alleging that they were dismissed for lack of confidence, in violation of the law and the Constitution, appellees Leon Piero et al., instituted mandamus proceedings in the court below against their replacements, the Commissioner of Customs, the Secretary of Finance and the Customs Auditor, to compel reinstatement to their positions in the Customs Patrol Service, with back salaries. There is virtually no controversy over the facts that gave rise to this proceeding. In his decision, the trial Judge, Hon. Conrado V. Vasquez, summarized thus the stipulated facts in this case: The thirty-two petitioners, at the time of their dismissal, were employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. With the exception of petitioners Jose Guerrero, Eleuterio Medrano and Ismael Hernandez, they were holding their positions under permanent appointments. The petitioners have rendered services in the Bureau of Customs which ranged individually from two years to twenty-six years. They were all insured with the Government Service Insurance System. On various dates between the first week of December, 1962 up to the last week of January, 1963, the petitioners were ordered dismissed or separated from the Bureau of Customs by the respondent Acting Secretary of Finance and Acting Commissioner of Customs, based on the ground that said respondent had lost confidence in them. After their dismissal, the petitioners individually and collectively demanded in writing for their immediate reinstatement, but their demands were unheeded. Instead, the other respondents (except Rodrigo D. Perez, Jr. and the Auditor of the Bureau of Customs) were appointed in the positions previously held by the petitioners. On July 27, 1963, the petitioners filed this action before this Court.

The trial court held that under the Constitution (Article XII, section 4) as well as the Civil Service Law (Rep. Act No. 2260) the petitioners below (private respondents in this Court) could not be dismissed or removed from their positions without cause and due hearing even if their positions should be primarily confidential, as contended by the Customs and Finance authorities, because the Civil Service law at present protects not only those who belong to the classified service but also those in the unclassified service, that include positions primarily confidential, policy determining or highly technical. It, therefore, rendered judgment ordering the reinstatement of petitioners with payment of back salaries and commanding those who replaced them in their respective positions to vacate and surrender the same to the claimants, since these replacements were "illegally appointed to positions which were not vacant". The State then duly brought the case to this Court by direct appeal. The principal issue posed is whether claimants may be dismissed without cause or hearing for mere lack of confidence, in view of the fact that the positions occupied by them in the Customs Patrol Service are "primarily confidential", having been so declared by Executive Order No. 397, series of 1941, and Executive Order No. 94, series of 1947. Appellants buttress their claim upon the executive orders aforesaid. It is well to note, however, that while Executive Order No. 397, Series of 1941 declares that the appointment, promotion, discipline and removal of the members of the Harbor Police be subject only to the discretion of the appointing authority Executive Order No. 94, Series of 1947, in its Sections 53 and 54, merely provides: SEC. 53. There is hereby organized as "Customs Patrol Service" through the consolidation of the Secret Service Division and the Harbor Police Division, including the positions and personnel paid by the entity operating the arrastre service, to take direct charge of the enforcement of the laws and regulations within the customs premises and the port area. SEC. 54. The positions in the Customs Patrol Service are hereby declared primarily confidential and appointments thereto will be subject only to the discretion of the Secretary of Finance. without, therefore, reiterating the former Executive Order (397) that (besides appointment) their discipline and removal would be, likewise, at the discretion of the Secretary of Finance. Appellants, however, maintain that the Executive Order (No. 397) supplements the deficiency in the latter one (No. 94, series of 1947), and that in not so holding the trial court committed error. We do not find it necessary to resolve this particular issue, because of the more fundamental reason that, under Section 5 of the Civil Service Act of 1959 now in force, what determines ultimately whether an administrative position is primarily confidential, policy determining or highly technical, is the nature of the functions attached to the position. This clearly appears from the wording and history of section 5 of the 1959 Civil Service Act (R.A. 2260), which recites: SEC. 5. The Non-competitive Service.The non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy determining, primarily confidential or highly technical in nature. (Emphasis supplied) The Act's legislative history reveals that while Senate Bill No. 133 (that ultimately became Republic Act 2260) was being debated in the Senate, Section 5 originally provided as follows: SEC. 5. The Non-competitive Service.The non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or to be policy determining, primarily confidential, or highly technical in nature. (Emphasis supplied)

The change from the original wording of the bill (expressly declared by law . . . to be policy determining, etc.) to that finally approved and enacted" ("or which are policy determining, etc. in nature") came about because of the observations of Senator Taada, that as originally worded the proposed bill gave Congress power to declare byfiat of law a certain position as primarily confidential or policy determining, which should not be the case. The Senator urged that since the Constitution speaks of positions which are "primarily confidential, policy determining or highly technical in nature",1 it is not within the power of Congress to declare what position is primarily confidential or policy determining. "It is the nature alone of the position that determines whether it is policy determining or primarily confidential." Hence, the Senator further observed, the matter should be left to the "proper implementation of the laws, depending upon the nature of the position to be filled", and if the position is "highly confidential" then the President and the Civil Service Commissioner must implement the law. To a question of Senator Tolentino, "But in positions that involved both confidential matters and matters which are routine, . . . who is going to determine whether it is primarily confidential?" Senator Taada replied: SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not. I remember a case that has been decided by the Supreme Court involving the position of a district engineer in Baguio, and there, precisely, the nature of the position was in issue. It was the Supreme Court that passed upon the nature of the position, and held that the president could not transfer the district engineer in Baguio against his consent. 2 Senator Taada, therefore, proposed an amendment to section 5 of the bill, deleting the words "to be" and inserting in lieu thereof the words "Positions which are by their nature" policy determining, etc., and deleting the last words "in nature". Subsequently, Senator Padilla presented an amendment to the Taada amendment by adopting the very words of the Constitution, i.e., "those which are policy determining, primarily confidential and highly technical in nature". The Padilla amendment was adopted, and it was this last wording with which section 5 was passed and was enacted (Senate Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681). It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat the protection of section 4, Article XII, of the Constitution.3 Now, the record is devoid of data as to the functions discharged by the members of the Port Patrol, other than they are part of the Customs police forces. But this fact does not by itself indicate that the position is primarily confidential, so as to dispense with security of tenure for the incumbents. In De los Santos vs. Mallare, 87 Phil. 289, this Court, in holding that the position of City Engineer of Baguio was not a primarily confidential one, reasoned as follows: Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state (Cas cit. at p. 298). As previously pointed out, there are no proven facts to show that there is any such close intimacy and trust between the appointing power and the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. Certainly, it is extremely improbable that the service demands any such close trust and intimate relation between the appointing official and, not one or two members alone but the entire Customs Patrol (Harbor Police) force, so that every member thereof can be said to hold "primarily confidential" posts.

We are thus compelled to conclude that the positions formerly held by appellees were not primarily confidential in nature, so as to make their terms of office co-terminal with the confidence reposed in them. The inevitable corollary is that respondents-appellees, Leon Piero, et al., were not subject to dismissal or removal, except for cause specified by law and with due process (Civil Service Law, Republic Act 2260, section 32). Hence, the court below committed no error in holding that appellees could not be legally separated from the service for mere lack of confidence, the same not being one of the causes for removal mentioned in section 33 of the Civil Service Act. Nor do we find tenable the contention of appellants that removal of petitioners is discretionary in the Secretary of Finance because it is so provided in Executive Order No. 397, Series of 1941, that supplements the subsequent Executive Order No. 94, Series of 1947, Section 53, the latter being silent on the manner of removing Customs Patrol (ex-Harbor Police) officers. The reason is not only that Executive Order No. 94, Series of 1947, was issued pursuant to the Reorganization Act of 1946 (Republic Act No. 51), specifically enacted for the organization of the Administrative services of the independent Republic, and, therefore, it necessarily superseded Executive Order No. 397, Series of 1941, that only envisaged the services under the Commonwealth, but also because the 1941 order appears predicated upon Section 671, paragraph 1, of the Administrative Code,4 and the latter section was among those expressly repealed by Section 45 of the Civil Service Law of 1959. Even assuming therefore, that Executive Order No. 94, Series of 1947, is still in force, the discretionary removal of appellees is not authorized by it. The appellants argue that respondents-appellees herein do not possess civil service eligibility appropriate for the positions they were holding. But this question was not invoked in petitioners' answer in the court below, and hence can not be raised for the first time on appeal. Besides, the parties expressly stipulated that appellees (with the exception of Jose Guerrero, Eleuterio Medrano and Ismael Hernandez) were issued permanent appointments, and the presumption of regularity applies to them. Even in the case of those holding provisional or probationary appointments (like the three above-named) the invalidity thereof can not be declared unless it is first shown that there were appropriate eligibles at the time they were appointed, and this requisite has not been established by evidence (Civil Service Rule VI, sections 13 and 14). SEC. 13. Whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and in the findings of the Commissioner there is no appropriate eligible at the time of appointment, the appointing officer may, upon prior authorization of the Commissioner, Provincial or City Treasurer, as the case may be, issue a provisional appointment to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive or classified service. SEC. 14. A provisional appointment shall in no case extend beyond 30 days from receipt by the appointing officer of the certification of eligibles. In view of the deficiencies of the record, and the failure in the answer to properly tender issue on these points, it is our opinion that the matter of eligibility should be threshed out in an appropriate proceeding, giving all parties ample opportunity to litigate their respective contentions. Appellants, likewise, aver that appellees are in estoppel to claim dismissal without just cause and hearing, because they accepted appointment and assumed their positions under Executive Order No. 397, series of 1941, declaring their positions to be primarily confidential. But assuming that such declaration was constitutional and valid, the subsequent 1959 Civil Service Law determined the character of the appellees' tenure according to the nature of the position itself, and we fail to see how estoppel could operate to deprive appellees of the benefits accorded by this subsequent statute, particularly when the law itself prohibits waiver of any right or rights accruing under the law to the civil service employee. SEC. 40. Waiver of Rights.No public officer or employee acting for a public officer shall be permitted to require an applicant for employment or any employee to sign any paper or document whereby such applicant for employment waives any right or rights accruing to him under this law.

The final contentions are procedural. Petitioners insist that the National Treasurer is an indispensable party to this action, since appellees claimed payment of back salaries; and that these proceedings are in fact a suit against the government, not maintainable without its consent. We find these contentions of appellants untenable. The payment of appellees' back salaries is purely incidental to the main question relative to the legality of their ouster, and would be a mere consequence of a declaration that the same was illegal. It nowhere appears that the Insular Treasurer has objected to paying the back salaries of appellees herein in the event it should be declared by the courts that they were illegally dismissed; nor does it appear that such salaries are not, or have not been, included and appropriated in the yearly budgets enacted by the Legislature and approved by the President of the Philippines. It was pointed out in State Mineral Lease Commission vs. Lawrence, 157 So. 897 (quoted with approval in Ruiz, et al. vs. Cabahug, et al., 54 Off. Gaz., No. 2, pp. 351, 354), that the cases wherein the rule of state immunity from suit has been applied and upheld are: ... those which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require the appropriation or an expenditure therefrom, which being legislative in its character is a province exclusively of the political departments of the state. And in the less frequent number of cases where no money judgment is demanded, and the rule of immunity is still upheld, it will be found in them that the relief demanded would be, nevertheless, to require of the state or its political subdivision the affirmative performance of some asserted obligation, the nature of which, and the process of its discharge belong to the state in its political capacity. None of these circumstances obtains in this case. WHEREFORE, the appealed decision is hereby affirmed. Without costs. G.R. No. 162403 May 16, 2005

FLORENCIO L. ADVINCULA, petitioner, vs. ROMEO DICEN, respondent. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP. No. 76350, which affirmed the Decision2 of the Office of the Ombudsman-Visayas in OMB-VIS-ADM-2000-0963 adjudging the petitioner guilty of misconduct and penalizing him with suspension from office for six (6) months without pay. The Factual Antecedents On July 27, 2000, the Office of the Governor of Samar, through Acting Provincial Administrator, Engineer Leo N. Dacaynos, issued a Memorandum3 to all Provincial Chiefs of Offices, requiring all personnel of the province to submit one copy of an updated Personal Data Sheet (PDS), otherwise known as Civil Service Commission Form 212, to the Personnel Section on or before August 31, 2000. In compliance therewith, petitioner Florencio L. Advincula, the Provincial Agriculturist, submitted his PDS, 4 declaring therein that there were no pending administrative and criminal cases against him and that he had not been convicted of any administrative offense. However, the records reveal that at that time, the following cases against the petitioner were pending: (a) Criminal Case No. 25446 entitled "People of the Philippines v. Florencio L. Advincula" filed with the First Division of theSandiganbayan, Quezon City; and (b) OMB-VIS-ADM-20000465 entitled "Dominador Garalza v. Florencio L. Advincula," an administrative case pending before the Office of the Ombudsman-Visayas. Moreover, it was later on discovered that the petitioner had already

been convicted5 of an administrative offense for simple misconduct on August 16, 1999, the penalty for which was a month's suspension from office without pay. Thereafter, Romeo Dicen, an Agricultural Technologist in the Office of the Provincial Agriculturist, filed a Letter-Complaint6 on December 28, 2000 before the Office of the Ombudsman in Visayas, charging the petitioner with violation of the pertinent provisions of the Anti-Graft and Corrupt Practices Act. The respondent, likewise, requested that the corresponding charges for the criminal offense of falsification of public or official document, and the administrative offense of misconduct in office or dishonesty be filed against the petitioner. In a Counter-Affidavit7 filed on April 11, 2001, the petitioner averred that (a) the complaint was filed in retaliation to the administrative case for falsification he filed against the respondent; (b) the omission to disclose his pending cases and prior conviction was an oversight on his part due to his numerous daily tasks; (c) the PDS was accomplished by Personnel Officer Micaela M. Rosales, a regular employee of the Office of the Provincial Agriculturist, in her intention to submit the PDS of the petitioner before the scheduled deadline; (d) the document was not executed under oath, therefore, eliminating the basis for criminal and administrative prosecution; and (e) the complaint was not accompanied by a certification against forum shopping, thereby warranting the dismissal of the case. In her Affidavit8 dated March 28, 2001, Rosales claimed that she was the one who accomplished the petitioner's PDS in her honest intention to submit the same before the given deadline. According to Rosales, after completing the PDS form, she immediately gave it to the petitioner for his signature. The petitioner, she added, signed the accomplished PDS without scrutinizing and reading the same, for he was very busy at that time. On April 20, 2001, the respondent filed his Reply-Affidavit,9 contending that the petitioner's omission could not be considered as a mere oversight; as the head of his office, he was charged by law to review all the documents for his signature and to exercise prudence and caution in the signing thereof. Furthermore, the respondent argued that the PDS is an official document required for all government employees. He averred that the PDS must be individually prepared by the employee, whose personal history is known only to him. Furthermore, assuming that the petitioner's PDS was prepared by the personnel officer, it was still the petitioner's obligation to review the entries therein before submitting the same to the Office of the Provincial Governor, to ascertain that it contained only the factual truths as required by law. During the formal investigation of OMB-VIS-ADM-2000-0963 on August 29, 2001, it was specified that the criminal case against the petitioner was perjury, docketed as OMB-VIS-ADM-2000-1162, while the administrative offense was for dishonesty. On cross-examination, the respondent admitted that he was able to obtain the PDS of the petitioner from the Personnel Officer of the Provincial Government of Samar, and that the petitioner was suspended from office from September 1 to 30, 1999. The petitioner presented Rosales as his witness. On cross-examination, she testified that in the morning of August 31, 2000, she filled up the entries on the petitioner's PDS, gathering the information from the latter's previous personal file. The petitioner was out of the office at the time. She then left the PDS with his secretary that same afternoon for signature. Rosales also admitted that she had known of the petitioner's suspension from office even prior to the submission of the PDS. 10 On the witness stand, the petitioner admitted that before he affixed his signature on the PDS, he did not review the entries thereon, nor checked the accuracy thereof. He likewise admitted that at the time he signed the PDS, he had pending cases, both criminal and administrative, before the Sandiganbayan and Ombudsman. Finally, he divulged that he had been convicted of an administrative offense prior to August 31, 2000, the penalty for which was suspension from office for one month without pay. 11 On May 29, 2002, the Office of the Ombudsman-Visayas rendered judgment finding the petitioner guilty of misconduct. The dispositive portion of the decision reads: WHEREFORE, premises considered, respondent FLORENCIO L. ADVINCULA, Provincial Agriculturist of the Province of Samar, Catbalogan, Samar, is guilty of MISCONDUCT and hereby

meted the penalty ofSUSPENSION FROM OFFICE FOR SIX (6) MONTHS WITHOUT PAY, this being the second time he had been imposed administrative penalty by this Office. SO DECIDED.12 On the same date, the Deputy Ombudsman for the Visayas approved a Resolution 13 finding probable cause for perjury against the petitioner. However, in a Resolution14 dated January 24, 2003, the Ombudsman found probable cause against the petitioner for falsification under paragraph 4, Article 171 of the Revised Penal Code. Aggrieved, the petitioner elevated the administrative case to the CA via a petition for review on certiorari under Rule 43 of the 1997 Revised Rules of Civil Procedure, with a prayer for temporary restraining order, injunction, and prohibition. Meantime, on May 15, 2003, the Deputy Ombudsman for the Visayas issued an Order15 to the Provincial Governor of Samar, directing the latter to immediately implement the penalty of suspension from office for six months without pay, and to inform the Office of the Ombudsman of her compliance within five days from receipt thereof. On June 2, 2003, the Office of the Governor of Samar issued a Memorandum16 to the petitioner, directing him to cease and desist from the performance of the functions and responsibilities of his office for six months without pay from receipt thereof. As a consequence, the petitioner filed a motion to implead the Office of the Governor of Samar and the Office of the Ombudsman in the petition before the CA on June 18, 2003. In his comment to the petition, the respondent averred that the petitioner's sole recourse was to file a petition forcertiorari before the Supreme Court, which exercises exclusive jurisdiction to review orders and decisions of the Office of the Ombudsman, as mandated by Section 27 of Republic Act (R.A.) No. 6770, otherwise known as The Ombudsman Act of 1989. The respondent added that the petitioner was convicted on the basis of preponderant evidence found against him during the clarificatory hearing conducted by the graft investigation officer assigned to the case. On September 29, 2003, the CA affirmed the decision of the Office of the Ombudsman-Visayas. The fallo of the decision reads: Foregoing premises considered, the assailed Decision dated 29 May 2002 issued by the Office of the Ombudsman-Visayas in OMB-VIS-ADM-2000-0963 is hereby AFFIRMED. SO ORDERED.17 In finding for the respondent, the CA concluded that the accomplishment of the PDS, being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of untruthful statement therein was, therefore, intimately connected with such employment. Accordingly, the petitioner was under the obligation to reveal the fact that he had pending administrative and criminal cases and a previous administrative conviction. The PDS is an official document; hence, the concealment of a previous charge, albeit dismissed, constituted dishonesty amounting to misconduct. However, the CA held that the judgment of the Office of the Ombudsman-Visayas was not immediately executory because the penalty of suspension for six months without pay is not among those listed under Section 27 of R.A. No. 6770 and Section 7, Rule III of Administrative Order No. 07 of the Office of the Ombudsman. As to the issue of jurisdiction, the CA affirmed its jurisdiction in the instant case on the strength of the case of Fabian v. Desierto18 wherein it was stated that "[a]ppeals from judgments and final orders of quasijudicial agencies are now required to be brought to the Court of Appeals on a verified petition for review, under the requirements and conditions of Rule 43 which was precisely formulated and adopted to provide a uniform rule of appellate procedure for quasi-judicial agencies."

The petitioner filed a motion for reconsideration, which the CA denied in its Resolution dated February 16, 2004. Meanwhile, on October 2, 2003, the petitioner wrote a Letter addressed to Ombudsman Simeon Marcelo, asserting that his right to appeal was violated with the immediate implementation of the decision of the Office of the Ombudsman-Visayas. In an Order19 dated October 29, 2003, the Office of the Ombudsman denied the petitioner's request for the deferment of the execution of his suspension order. Expectedly, the petitioner filed a motion for reconsideration which was denied in an Order dated December 16, 2003. Hence, the instant petition for review raising the following grounds: A. The Honorable Court of Appeals erred in applying doctrines from Supreme Court cases with different facts from the case at bar. B. The Honorable Court of Appeals failed to consider the failure of the Honorable Ombudsman to afford due process to Petitioner.20 Anent the first issue, while recognizing the fact that the accomplishment of the PDS is closely connected with his employment, the petitioner likewise asserts that this rule could not be the basis of a finding of misconduct on his part. According to him, the evidence is clear that it was not the petitioner who accomplished the PDS. Thus, he adds that his good faith in signing the PDS cannot be a ground to find him guilty of misconduct. The respondent, on the other hand, asseverates that the petitioner has been in the government service for a long period of time; hence, he is presumed to have already accomplished several such forms. It can be safely assumed, therefore, that he has gained familiarity with the questions therein. Granting that it was his subordinate who accomplished the PDS, the respondent contends that the petitioner's cavalier attitude in signing the same shows that he is either incompetent or grossly negligent. The respondent further argues that the petitioner's defense of good faith would not absolve him from administrative liability, since he placed his signature directly under the statement declaring that "the answers given herein are true and correct." He adds that the petitioner's wanton disregard for the statement shows that his defense of good faith is anchored on barren ground. The petition is devoid of merit. The CA dismissed the petition for review of the petitioner with the following findings and ratiocinations: Petitioner postulates that his non-disclosure in his updated PDS of his pending cases and previous administrative conviction only calls for a reprimand and not suspension. We disagree. Section 1(i), Rule III of Civil Service Commission (CSC) Memorandum Circular No. 40, Series of 1998, otherwise known as the "Omnibus Rules on Appointments and Other Personnel Actions," as amended by CSC Resolution No. 99-1907, provides in part, "(t)he appointee's Personal Data Sheet (CS Form 212, Revised 1998) which should be properly and completely accomplished by the appointee, shall be attached to the appointment. Said PDS shall contain an authorization from the job applicant/employee that the agency head or his authorized representative can verify/validate the contents therein." As regular member of the career service, petitioner is bound by the Civil Service Law and Rules. In Inting vs. Tanodbayan, 97 SCRA 494, the Supreme Court ruled that "the accomplishment of the Personal Data Sheet being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of untruthful statement therein was, therefore, intimately connected with such employment." Petitioner, therefore, was under the obligation to reveal the fact that he has pending administrative and criminal cases and that he had a previous administrative conviction. Under Section 27 of RA 6770, "(f)indings of fact by the Officer of the Ombudsman when supported by substantial evidence

are conclusive." A similar provision appears in Section 10, Rule 43 of the 1997 Rules of Civil Procedure, to wit, "(t)he findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals." Substantial evidence, is "the amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion." Petitioner himself does not dispute the fact of his pending cases and his previous administrative conviction. In Bautista vs. Navarro, 114 SCRA 794 (1982), the Supreme Court declared that the Personal Data Sheet is an official document required by the Civil Service Commission. As such, the concealment of a previous charge, albeit, dismissed, constitutes a mental dishonesty amounting to misconduct. The conviction of petitioner for misconduct must therefore be affirmed.21 Time and again, we have emphasized that the Personal Data Sheet is an official document required of a government employee and official by the Civil Service Commission. 22 It is the repository of all information about any government employee and official regarding his personal background, qualification, and eligibility. Concealment of any information in the PDS, therefore, warrants a penalty from the erring official. The liability of the petitioner stems from the Revised Administrative Code of 1987, specifically, the provisions on the Civil Service Commission. Section 46(b)(4) of Chapter 6, Subtitle A, Title I, Book V of the said Code makes misconduct a ground for disciplinary action. Misconduct, by uniform legal definition, is a transgression of some established and definite rule of action, more particularly, unlawful behavior as well as gross negligence by the public officer.23 The word misconduct implies a wrongful intention, and not a mere error of judgment. 24 Misconduct, on the other hand, is wrongful and improper conduct.25 We are not swayed by the petitioner's insistence that he did not bother to review the contents of his PDS before signing the same. The petitioner was a provincial agriculturist, no less, and occupied a very responsible position in the government, albeit on the provincial level. As such, it was incumbent on him to scrutinize each and every document he signed. It is hard to believe that the petitioner affixed his signature on his PDS without bothering to scrutinize, and correct the same if erroneous. Even assuming that the petitioner had indeed signed his PDS without bothering to review the same, he cannot escape administrative liability therefor. Such an omission is considered as gross negligence on his part. The petitioner acknowledged the fact that he had a pending administrative case before the Ombudsman for the Visayas and a criminal case before the Sandiganbayan. He likewise confessed that at the time he affixed his signature to the PDS, he had already been convicted of an administrative offense for simple misconduct. Such acts constitute misconduct, as they are considered voluntary wrongdoing characterized by behavior unbecoming of an official of the government. The fact that no bad faith can be attributed to the petitioner because it was his personnel officer who prepared the PDS is not a valid defense; the fact that he failed to read the entries made by the personnel officer before finally affixing his signature on the PDS makes him guilty of negligence of duty. It must likewise be stressed that the petitioner is expected to set a good example to his subordinates in the office. By being remiss in his duties, the petitioner willfully transgressed the criterion of behavior expected of him as a government official.26 Moreover, the failure of the petitioner to divulge that he had pending cases, both criminal and administrative, and that he had already been previously adjudged guilty of simple misconduct is a form of concealment, which is regarded as dishonesty amounting to misconduct.27 Petitioner was under legal obligation to reveal those facts in his PDS and his inadvertence was no excuse. The Court cannot condone nor close its eyes to transgressions of duty on the part of the petitioner which could have been avoided with the exercise of requisite care. The Ombudsman for the Visayas is thus correct in holding that: Complainant rightly argued that it was incumbent upon respondent to have read thoroughly and carefully his PDS, more especially so that it was partially prepared by another person. Being a senior officer, he is charged with the knowledge that a PDS is supposed to be truly reflective of the personal circumstances of the one who prepared and submitted it. By not making any corrections

in the entries made by Mrs. Rosales, he had in effect considered them to be his own and the truths as far as he is concerned.28 Besides, no less than the 1987 Constitution provides that "[p]ublic office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives." 29 This central tenet in a government official's career is more than just a moral imploration. It is a legal imperative. The law may vest in a public official certain rights. It does so only to enable him to perform his functions and fulfill his responsibilities more efficiently.30 But that does not mean that the public official may dispense with the requirements of the law. The public office is created for the interest and the benefit of the people. As such, the holder thereof "is subject to such regulations and conditions as the law may impose."31 There is a constant need to maintain the faith and confidence of the people in the government and its agencies and instrumentalities. A public servant must exhibit at all times the highest sense of honesty and integrity.32 Anent the second issue, the petitioner declares that he was denied due process because the decisions of the Office of the Ombudsman and the CA failed to comply with the requirement of substantial evidence in administrative cases. He further avers that the allegations in the respondent's complaint charge a case of falsification or dishonesty while the decision of the Ombudsman, as affirmed by the CA, was for a finding of misconduct. As a consequence, the petitioner declares that he was not able to defend himself because he was not given the opportunity to prepare and present his defense. The respondent, however, posits that the petitioner's arguments are misleading because he was thoroughly apprised of the charge against him. We agree with the respondent. The evidence presented by the respondent is substantial to support the finding that the petitioner is guilty of the offense charged against him. It bears stressing that in administrative proceedings, the quantum of evidence required is only substantial.33 It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine differently. The gauge of substantial evidence is satisfied where there is reasonable ground to believe that the petitioner is guilty of misconduct, even if the evidence might not be overwhelming. 34 After a careful review of the evidence on record, the Court adopts and concurs with the findings of the Ombudsman and the appellate court. Absent a clear showing of grave abuse of discretion, such findings need not be disturbed.35 Section 27 of R.A. No. 6770 succinctly provides that "[f]indings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive." Moreover, such findings made by an administrative body which has acquired expertise are accorded not only respect but even finality. Thus, the appellate court committed no error in sustaining the penalty of suspension imposed on the petitioner. As to the petitioner's contention that he was not properly apprised of the charges against him, suffice it to say that the records of the case clearly reveal that the respondent's letter-complaint indicated that the request was for the filing of an administrative offense for "Misconduct in Office and/or Dishonesty." Verily, the petitioner cannot now claim that he was not given the opportunity to defend and prepare his defense, and that he was denied due process because he was well informed of the charges against him. The issue on the improper execution of the penalty involving the petitioner's suspension is moot. In view of the fact that the petitioner is indeed liable for misconduct and that he has served out the penalty, the Court finds no need to still resolve the same. As a general rule, courts should not take cognizance of moot and academic questions.36Further, Section 7 of the Ombudsman's Administrative Order No. 14-A, Series of 2000 states that: Section 7. Finality and execution of decision. Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision may be appealed within ten (10)

days from receipt of the written notice of the decision or order denying the motion for reconsideration. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.37 WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. No costs. SO ORDERED.