Const Set 13 Cases - Free Download PDF (2025)

Chapter 13: CONSTITUTIONAL COMMISSIONS 1. Read: Art. IX, 1987 Constitution 2. Digest the following cases: A. The Civil Service Commission 1. UP v. Regino, 221 SCRA 598 2. Tupas v. NHC, 173 SCRA 33 3. Juco v. NLRC, G.R. No. 98107, Aug. 19, 1997 4. Hilario v. CSC, 243 SCRA 206 5. Pagcor v. Rilloraza, G.R. No. 141141, June 25, 2001 6. Besa v. PNB, 33 SCRA 330 7. Dario v. Mison, 176 SCRA 84 8. De la Llana v. Alba, 112 SCRA 294 9. Palma-Fernandez v. Dela Paz, 160 SCRA 751 10. Santos v. Yatco, 106 Phil. 745 11. Cailles v. Bonifacio, 65 Phil. 328 12. SSS Employees Association v. CA, 175 SCRA 686 13. Bangalisan v. CA, G.R. No. 124678, July 23, 1997 14. Intia v. COA, G.R. No. 131529, April 30, 1999 15. Quimzon v. Ozaeta, 98 Phil. 705 16. Santos v. CA, G.R. No. 139792, Nov. 22, 2000 B. The Commission on Elections 17. Cayetano v. Monsod, G.R. No. 100113, Sept. 3, 1991 18. Brilliantes v. Yorac, 192 SCRA 358 19. Gallardo v. Judge Tabamo, 218 SCRA 253 20. LDP v. COMELEC, G.R. No. 161265, Feb. 24, 2004 21. Alunan v. Mirasol, G.R. No. 122250, July 21, 1997 22. Javier v. COMELEC, 144 SCRA 194 23. Aquino v. COMELEC, 248 SCRA 400 24. Cawasa v. COMELEC, G.R. No. 150469 25. Guevara v. COMELEC, 104 Phil. 269 26. De Jesus v. People, 120 SCRA 760 27. COMELEC v. Silva, 286 SCRA 177 28. Loong v. COMELEC, G.R. No. 160427, Sept. 15, 2004 29. Sambrani v. COMELEC, G.R. No. 160427, Sept. 15, 2004 C. The Commission on Audit 30. Orocio v. COA, 213 SCRA 109 31. Gonzales v. Provincial Board of Iloilo, 12 SCRA 711 32. Guevara v. Jimenez, 6 SCRA 813 33. Feliciano v. COA, G.R. No. 147402, Jan. 14, 2004

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 88167 May 3, 1993 UNIVERSITY OF THE PHILIPPINES and UP SCHOOL OF ECONOMICS, petitioners, vs. THE HON. TEODORO P. REGINO, Presiding Judge, RTC, Br. 84 NATIONAL CAPITAL REGION, Q.C., ANGEL PAMPLINA, and The CIVIL SERVICE COMMISSION, respondents. The Solicitor General for petitioner. Araullo, Zambrano, Gruba, Chua Law Firm for private respondent.

CRUZ, J.: Private respondent Angel Pamplina, a mimeograph operator at the University of the Philippines School of Economics, was dismissed on June 22, 1982, after he was found guilty of dishonesty and grave misconduct for causing the leakage of final examination questions in Economics 106 under Prof. Solita Monsod. 1 His appeal was denied by the UP Board of Regents, prompting him to seek relief from the Merit Systems Board (MSB), created under Presidential Decree No. 1409. Under Section 5(l) thereof, the MSB has the power to "hear and decide administrative cases involving officers and employees of the civil service." The University of the Philippines filed a motion to dismiss for lack of jurisdiction on the part of the MSB. UP relied heavily on the case of University of the Philippines vs. Court of Appeals, 2 where it was held that administrative matters involving the discipline of UP employees properly fall under the Jurisdiction of the state university and the UP Board of Regents. The motion was denied. Thereafter, in its decision dated July 5, 1985, the MSB exonerated Pamplina and ordered his reinstatement with back wages. 3 UP, represented by its Office of Legal Services, moved for reconsideration, but this was denied on January l0, 1986. UP then appealed to the Civil Service Commission, which on November 4, 1987, issued Resolution No. 87428, sustaining the MSB. 4 The motion for reconsideration was denied on April 13, 1988. On June 10, 1988, the petitioners, through their new counsel of record, the Office of the Solicitor General (OSG), filed a second motion for reconsideration. This was also denied on August 31, 1988, on the basis of Section 39(b) of PD 807, providing in part that "only one petition for reconsideration shall be entertained" by the Civil Service Commission. Pamplina filed a "Manifestation and Motion for Execution of Judgment" of the Commission, copy of which was received by the Office of the Solicitor General on October 4, 1988. 5 This was opposed by the Page 2 of 492

petitioners, but in an order dated November 7, 1988, the Commission granted the motion. Nevertheless, Pamplina was still not reinstated. UP claimed that the resolutions of the Commission had not yet become final and executory. Pamplina's reaction was to file a petition for a writ of mandamus on November 11, 1988. Judge Teodoro P. Regino of the Regional Trial Court of Quezon City granted the petition on April 27, 1989. The respondents (herein petitioners) were ordered to immediately reinstate Pamplina "to his former position as mimeograph operator without change of status as permanent employee with back wages from June 22, 1982, up to his reinstatement, plus salaries for the period of his preventive suspension covering December 15, 1981 to March 15, 1982." 6 On June 19, 1989, the present petition for certiorari was filed with this Court to seek the annulment of the decision of the trial court and the orders of the Commission directing the reinstatement of Pamplina. The petitioners also pray that the decision of the UP President and Board of Regents ordering Pamplina's dismissal be upheld. UP contends that under its charter, to wit, Act 1870, enacted on June 18, 1906, it enjoys not only academic freedom but also institutional autonomy. Section 6(e) of the said Act grants the UP Board of Regents the power "to appoint, on recommendation of the president of the university, professors, instructors, lecturers, and other employees of the university, to fix their compensation and to remove them for cause after an investigation and hearing shall have been had." Pamplina was dismissed by virtue of this provision. The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a), provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposititon of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied) Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. 7 Under the 1967 Constitution only governmentowned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(l), which states: The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters. As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, UP is therefore governed by PD 607 and administrative cases involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission. Coming now to the petition itself, we note that the petitioners received a copy of the resolution denying their motion for reconsideration on April 22, 1968. In Article IX-A, Section 7, of the 1987 Constitution, which was already in effect at that time, it is provided that:

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. . . Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. This provision was reproduced almost verbatim in Section 28 of the Administrative Code of 1987. The petitioners therefore had thirty days from April 22, 1988, or until May 22, 1988, within which to elevate their case to this Court. They did not do so and instead filed a second motion for reconsideration, which was not allowed under Article IX, Section 39(b) of PD 807. On top of this, the second motion for reconsideration was filed only on June 10, 1988, or 19 days beyond the 30-day reglementary period. 8 In this connection, it is stressed that where a motion for reconsideration of a decision, order or ruling of any Constitutional Commission is denied, the 30-day reglementary period does not begin anew. The petitioner has only the balance of that period (after deducting the time elapsed before the motion was filed) to come to this Court on certiorari. The assailed orders having become final and executory, Pamplina had every right to seek mandamus to compel their execution. Respondent Judge Regino was quite correct when he issued the questioned writ. The case cited repeatedly by the petitioners, viz., University of the Philippines vs. Court of Appeals, 9 cannot apply to the present controversy. The reason is that at the time it was promulgated on January 28, 1971, PD 807 had not yet been enacted. PD 807 took affect only in 1975. In ruling in that case "that the President and Board of Regents of the University of the Philippines possess full and final authority in the disciplining, suspension and removal of the civil service employees of the University, including those of the Philippine General Hospital, independently of the Commissioner of Civil Service and the Civil Service Board of Appeals," Justice J.B.L. Reyes relied on the Civil Service Law of 1959, which then empowered the Civil Service Commission: Except as otherwise provided by law, to have final authority to pass upon the removal, separation and suspension of all permanent officers and employees in the competitive or classified service and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and to prebcribe standards, guidelines and regulations governing the administration of discipline; (Emphasis supplied) Article V, Section 9(j), of PD 807 simply gives the Commission the power to "har and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal," without the qualifiying phrase appearing in the above-quoted provision. The petitioners cannot invoke that phrase to justify the special power they claim under Act 1870. WHEREFORE, the instant petition for certiorari is DISMISSED and the assailed decision of respondent Judge Teodoro P. Regino dated April 27, 1989, and the challenged orders of the Civil Service Commission, are AFIRMED, with costs against the petitioners. It is so ordered. Narvasa, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Quiason, JJ., concur. Romero, J., took no part.

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# Footnotes 1 Decision of UP President Edgardo J. Angara dated June 22, 1982, Rollo, pp. 30-31. 2 37 SCRA 64. 3 Rollo, 88-94. Decision penned by Commissioner Alfredo B. Deza with the concurrence of Commissioners Villones and Amilhasan. 4 Rollo, pp. 119-124. Resolution penned by Commissioner Celerino G. Gotladera with the concurrence of Commissioners Yangco and Deza. 5 Rollo, p. 202. 6 Ibid., 190-195. 7 Article XII-B, Section 1(1). 8 Rollo, p. 171. 9 Supra.

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EN BANC [G.R. No. 49677. May 4, 1989.] TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, Petitioner, v. NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-Charge of the Bureau of Labor Relations, Respondents. The Government Corporate Counsel for respondent NHC. Raul E. Espinosa for intervenor PACIWU. SYLLABUS 1. ADMINISTRATIVE LAW; ONLY GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS WITH ORIGINAL OR LEGISLATIVE CHARTERS, NOW COVERED BY THE CIVIL SERVICE. — The civil service now covers only government-owned or controlled corporations with original or legislative charters, that is those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general legislation. The situations sought to be avoided by the 1973 Constitution and expressed by this Court in the National Housing Corporation case . . . appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces government-owned or controlled corporations with original charters and therefore, by clear implication, the Civil Service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law."cralaw virtua1aw library 2. LABOR LAW; UNIONS OR EMPLOYEES’ ORGANIZATION; RIGHT TO FORM RECOGNIZED AND GRANTED TO EMPLOYEES’ IN BOTH THE GOVERNMENTAL AND THE PRIVATE SECTORS. — The workers or employees of NHC undoubtedly have the right to form unions or employees’ organizations. The right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors. The Bill of Rights provides that" (t)he right of the people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged." This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which mandates that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. . . ."cralaw virtua1aw library 3. ID.; ID.; RIGHT OF GOVERNMENT EMPLOYEES TO UNIONIZE. — Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX B which provides that" (t)he right to self-organization shall not be denied to government employees."cralaw virtua1aw library 4. ID.; NATIONAL HOUSING CORPORATION; BEING A GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATION WITHOUT AN ORIGINAL CHARTER, HOLDING OF A CERTIFICATION ELECTION AMONG ITS WORKERS, WITHOUT IMPEDIMENT. — There is,

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therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a government-owned and or controlled corporation without an original charter Statutory implementation of the lastcited section of the Constitution is found in Article 244 of the Labor Code, as amended by Executive Order No. 111. 5. ID.; CERTIFICATION ELECTIONS; DISTINCTION BETWEEN THE TWO TYPES OF GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS RENDERED ACADEMIC BY SUBSEQUENT STATUTORY DEVELOPMENTS. — The records do not show that supervening factual events have mooted the present action. It is meet, however, to also call attention to the fact that, insofar as certification elections are concerned, subsequent statutory developments have rendered academic even the distinction between the two types of government-owned or controlled corporations and the laws governing employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or by the civil service laws, a certification election may be conducted. 6. ID.; DETERMINATION OF THE EXCLUSIVE BARGAINING REPRESENTATIVE AMONG EMPLOYEES IN CORPORATIONS AND ENTITIES COVERED BY THE LABOR CODE. — For employees in corporations and entities covered by the Labor Code, the determination of the exclusive bargaining representative is particularly governed by Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is a representation issue in organized establishments, while Article 257 covers unorganized establishments. These Labor Code provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules. 7. ID.; EMPLOYEES COVERED BY THE CIVIL SERVICE LAWS; GUIDELINES FOR THE EXERCISE OF THEIR RIGHT TO ORGANIZE COVERED UNDER EXECUTIVE ORDER NO. 180. — With respect to other civil servants, that is, employees of all branches, subdivisions, instrumentalities and agencies of the government including government-owned or controlled corporations with original charters and who are, therefore, covered by the civil service laws, the guidelines for the exercise of their right to organize is provided for under Executive Order No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the "sole and exclusive employees’ representative." DECISION REGALADO, J.: The employees of the public sector comprise the largest bloc of workers in our national work force. Governmental bureaucracy is continually being reorganized to cope with the growing complexity of the problems and needs of political and administrative governance. As the increase in the number of government employees grows apace, the need to enhance their welfare correspondingly becomes more imperative. While it may be assumed that the Government is exerting efforts to advance the interests of its employees, it is quite understandable that the employees themselves should actively seek arrangements whereby they can participate more meaningfully in management and employment relationships. There is, thus, a proliferation of unions or employees’ organizations, each seeking concomitant

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representational recognition. The antecedent facts which led to the filing of this special civil action for certiorari are clear and undisputed. The juridical status and relevant circumstances of respondent corporation have been established in a case of illegal dismissal filed against it, as previously decided by the Court and hereinafter discussed. However, submitted this time for Our resolution is a controversy on the propriety of and requirements for certification elections in governmentowned or controlled corporations like the Respondent. Respondent National Housing Corporation (hereinafter referred to as NHC) is a corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporations, dated January 1, 1951. Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 459, the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the People’s Homesite and Housing Corporation. 1 Petitioner Trade Unions of the Philippines and Allied Services (TUPAS, for brevity) is a legitimate labor organization with a chapter in NHC.chanrobles.com : virtual law library On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with Regional Office No. IV of the Department of Labor in order to determine the exclusive bargaining representative of the workers in NHC. It was claimed that its members comprised the majority of the employees of the corporation. 2 The petition was dismissed by med-arbiter Eusebio M. Jimenez in an order, dated November 7, 1977, holding that NHC "being a government-owned and or controlled corporation its employees/workers are prohibited to form, join or assist any labor organization for purposes of collective bargaining pursuant to Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor Code." 3 From this order of dismissal, TUPAS appealed to the Bureau of Labor Relations 4 where, acting thereon in BLR Case No. A-984-77 (RO4-MED-1090-77), Director Carmelo C. Noriel reversed the order of dismissal and ordered the holding of a certification election. 5 This order was, however, set aside by Officer-in-Charge Virgilio S.J. Sy in his resolution of November 21, 1978 6 upon a motion for reconsideration of respondent NHC. In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and prays that a certification election be held among the rank and file employees of NHC. In retrospect, it will be recalled that in a former case of illegal dismissal involving the same respondent corporation, 7 We had ruled that the employees of NHC and of other government owned or controlled corporations were governed by civil service laws, rules and regulations pursuant to the 1973 Constitution which provided that "the civil service embraces every branch, agency, subdivision and instrumentality of the government, including governmentowned or controlled corporations." 8 It was therein stressed that to allow subsidiary corporations to be excluded from the civil service laws would be to permit the circumvention or emasculation of the above-quoted constitutional provision. As perceptively analyzed therein," (i)t would be possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation Code

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funded by a willing legislature. A government-owned corporation could create several subsidiary corporations. These subsidiary corporations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be subject to the competitive restraints of the open market nor to the terms and conditions of civil service employment." chanrobles law library : red The rule, however, was modified in the 1987 Constitution, the corresponding provision whereof declares that" (t)he civil service embraces all branches, subdivisions, instrumentalities and agencies of the government, including government-owned or controlled corporations with original charters." 9 Consequently, the civil service now covers only government-owned or controlled corporations with original or legislative charters, that is those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general legislation. As We recently held — ". . ., the situations sought to be avoided by the 1973 Constitution and expressed by this Court in the National Housing Corporation case . . . appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces government-owned or controlled corporations with original charters and therefore, by clear implication, the Civil Service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law." 10 While the aforecited cases sought different reliefs, that is, reinstatement consequent to illegal dismissal, the same lis mota determinative of the present special civil action was involved therein.chanrobles virtual lawlibrary The workers or employees of NHC undoubtedly have the right to form unions or employees’ organizations. The right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors. The Bill of Rights provides that" (t)he right of the people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged." 11 This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which mandates that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. . . ."cralaw virtua1aw library Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX B 12 which provides that" (t)he right to self-organization shall not be denied to government employees." The rationale of and justification for this innovation which found expression in the aforesaid provision was explained by its proponents, as follows:jgc:chanrobles.com.ph ". . . The government is in a sense the repository of the national sovereignty and, in that respect, it must be held in reverence if not in awe. It symbolizes the unity of the nation, but it

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does perform a mundane task as well. It is an employer in every sense of the word except that terms and conditions of work are set forth through a Civil Service Commission. The government is the biggest employer in the Philippines. There is an employer-employee relationship and we all know that the accumulated grievances of several decades are now beginning to explode in our faces among government workers who feel that the rights afforded by the Labor Code, for example, to workers in the private sector have been effectively denied to workers in government in what looks like a grotesque, (sic) a caricature of the equal protection of the laws. For example, . . . there were many occasions under the old government when wages and cost of living allowances were granted to workers in the private sector but denied to workers in the government for some reason or another, and the government did not even state the reasons why. The government employees were being discriminated against. As a general rule, the majority of the world’s countries now entertain public service unions. What they really add up to is that the employees of the government form their own association. Generally, they do not bargain for wages because these are fixed in the budget but they do acquire a forum where, among other things, professional and self-development is (sic) promoted and encouraged. They also act as watchdogs of their own bosses so that when graft and corruption is committed, generally, it is the unions who are no longer afraid by virtue of the armor of self-organization that become the public’s own allies for detecting graft and corruption and for exposing it. . . ." 13 There is, therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a governmentowned and or controlled corporation without an original charter Statutory implementation of the last-cited section of the Constitution is found in Article 244 of the Labor Code, as amended by Executive Order No. 111, thus:chanrobles virtual lawlibrary "Right of employees in the public service. — Employees of the government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law."cralaw virtua1aw library The records do not show that supervening factual events have mooted the present action. It is meet, however, to also call attention to the fact that, insofar as certification elections are concerned, subsequent statutory developments have rendered academic even the distinction between the two types of government-owned or controlled corporations and the laws governing employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or by the civil service laws, a certification election may be conducted. For employees in corporations and entities covered by the Labor Code, the determination of the exclusive bargaining representative is particularly governed by Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is a representation issue in organized establishments, while Article 257 covers unorganized establishments. These Labor Code provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules.chanrobles law library With respect to other civil servants, that is, employees of all branches, subdivisions, instrumentalities and agencies of the government including government-owned or controlled corporations with original charters and who are, therefore, covered by the civil service laws,

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the guidelines for the exercise of their right to organize is provided for under Executive Order No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the "sole and exclusive employees’ representative." Under Section 12, "where there are two or more duly registered employees’ organizations in the appropriate organizational unit, the Bureau of Labor Relations shall, upon petition, order the conduct of certification election and shall certify the winner as the exclusive representative of the rank-and-file employees in said organizational unit."cralaw virtua1aw library Parenthetically, note should be taken of the specific qualification in the Constitution that the State "shall guarantee the rights of all workers to self-organization, collective bargaining, and peaceful concerted activities, including the right to strike in accordance with law" and that" (t)hey shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law." 14 (Emphasis supplied.) ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of Labor Relations, dated November 21, 1978, is ANNULLED and SET ASIDE and the conduct of a certification election among the affected employees of respondent National Housing Corporation in accordance with the rules therefor is hereby GRANTED. SO ORDERED. Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and Medialdea, JJ., concur. Gancayco, J., on leave. Endnotes:

1. Rollo, 191; National Housing Corporation v. Juco, Et Al., 134 SCRA 172 (1985). 2. Ibid., 14; Annex A. 3. Ibid., 20, Annex B. 4. Ibid., 21, Annex C. 5. Ibid., 27, Annex D. 6. Ibid., 31, Annex E. 7. National Housing Corporation v. Juco, Et Al., ante. 8. Sec. 1, Art. XII B. 9. Section 2 (1), Art. IX B. 10. National Service Corporation, Et. Al. v. The Hon. Third Division, National Labor Relations

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Commission, etc., Et Al., G.R. No. 69870, Nov. 29, 1988; see also Bliss Development Corporation v. National Labor Relations Commission, Et Al., G.R. No. 82824, Resolution, Jan. 18, 1989. 11. Sec. 8, Art. III, 1987 Constitution. 12. Constitutional Commissions; B. The Civil Service Commission. 13. Records of the Constitutional Commission, Vol. I, 567. 14. Sec. 3 (2nd par.), Art. XIII.

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FIRST DIVISION [G.R. No. 98107. August 18, 1997.] BENJAMIN C. JUCO, Petitioner, v. NATIONAL LABOR RELATIONS COMMISSION and NATIONAL HOUSING CORPORATION, Respondents. Ricardo C . Valmonte for Petitioner. The Government Corporate Counsel for Respondents. SYLLABUS 1. CONSTITUTIONAL LAW; 1973 CONSTITUTION; CONSTITUTIONAL COMMISSIONS; CIVIL SERVICE COMMISSION; EMPLOYER IN GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATIONS EMBRACED WITHIN THE CIVIL SERVICE. — 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. . . 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. 2. ID.; 1987 CONSTITUTION; CONSTITUTIONAL COMMISSION; CIVIL SERVICE COMMISSION; ONLY EMPLOYEES OF GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATIONS WITH ORIGINAL CHARTER, EMBRACED WITHIN THE CIVIL SERVICE. — Although we had earlier ruled in National Housing Corporation v Juco, that employees of government-owned and/or controlled corporations, whether created by special law or formed as subsidiaries under the general Corporation Law, are governed by the Civil Service Law and not by the Labor Code, this ruling has been supplanted by the 1987 Constitution. Thus, the said Constitution now provides: "The civil service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charter." (Article IX-8, Section 2[1]). 3. ID.; ID.; ID.; ID.; ID.; "WITH ORIGINAL CHARTER," CONSTRUED. — 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. 4. REMEDIAL LAW; JURISDICTION; CONSTITUTION IN PLACE AT TIME OF DECISION DETERMINES JURISDICTION OVER CASES INVOLVING EMPLOYEES IN GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATIONS. — In National Service Corporation (NASECO) v. National Labor Relations Commission, we had the occasion to apply the present Constitution in deciding whether or not the employees of NASECO are covered by the Civil Service Law or 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

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ground that it is the 1987 Constitution that governs because it is the Constitution in place at the time of the decision. Thus, NASECO which had been organized under the general incorporation statute and a subsidiary of the National Investment Development Corporation, which in turn was a subsidiary of the Philippine National Bank, is excluded from the purview of the Civil Service Commission. 5. ID.; ID.; ID.; EMPLOYEES OF NHA INCORPORATED UNDER THE FORMER CORPORATION LAW, SUBJECT TO THE PROVISIONS OF THE LABOR CODE. — 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 it shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the People’s Homesite and Housing Corporations. Considering the fact that the NHA had been in incorporated under Act 1459, the former corporation law, it is but correct to say that it is a government-owned or controlled corporation whose employee are subject to the provisions of the Labor Code. This observation is reiterated in the recent case of Trade Union of the Philippines and Allied Services (TUPAS) v. National Housing Corporation, where we held that the NHA is now within the jurisdiction of the Department of Labor and Employment, it being a government-owned and/or controlled corporation without an original charter. Furthermore, we also held that the workers or employees of the NHC (now NHA) undoubtedly have the right to form unions or employee’s organization and that there is no impediment to the holding of a certification election among them as they are covered by the Labor Code. Thus, the NLRC erred in dismissing petitioner’s 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. 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. 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.cralawnad On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC with the Department of Labor.

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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:jgc:chanrobles.com.ph "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:jgc:chanrobles.com.ph "The Board finds the comment and/or motion to dismiss meritorious. It was not disputed that NHC is a government corporation without an original charter but organized/created under the Corporation Code. Article IX, Section 2 (1) of the 1987 Constitution provides:chanrob1es virtual 1aw library ‘The civil service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government owned and controlled corporations with original charters.’ (Emphasis 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.

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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:jgc:chanrobles.com.ph "It appears . . . 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:jgc:chanrobles.com.ph "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:jgc:chanrobles.com.ph "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 . . ."cralaw virtua1aw library The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided:jgc:chanrobles.com.ph "The Civil Service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations."cralaw virtua1aw library 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

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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:jgc:chanrobles.com.ph "The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government owned or controlled corporations with original charter." (Article IX-B, Section 2[1]) In National Service Corporation (NASECO) v. National Labor Relations Commission, 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 statute and a subsidiary of the National Investment Development Corporation, which in turn was a subsidiary of the Philippine National Bank, is excluded from the purview of the Civil Service Commission.chanrobles virtual lawlibrary We see no cogent reason to depart from the ruling in the aforesaid case. In the case at bench, the National Housing Corporation is a government owned corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporation, dated January 1, 1959. Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 1459, the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the People’s Homesite and Housing Corporation. 13 Considering the fact that the NHA had been incorporated under Act 1459, the former corporation law, it is but correct to say that it is a government-owned or controlled corporation whose employees are subject to the provisions of the Labor Code. This observation is reiterated in the recent case of Trade Union of the Philippines and Allied Services (TUPAS) v. National Housing Corporation, 14 where we held that the NHA is now within the jurisdiction of the Department of Labor and Employment, it being a government-owned and/or controlled corporation without an original charter. Furthermore, we also held that the workers or employees of the NHC (now NHA) undoubtedly have the right to form unions or employee’s organization and that there is no impediment to the holding of a certification election among them as they are covered by the Labor Code. Thus, the NLRC erred in dismissing petitioner’s complaint for lack of jurisdiction because the rule now is that the Civil Service 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.

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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.chanrobles virtuallawlibrary SO ORDERED. Padilla, Bellosillo, Vitug and Kapunan, JJ., concur. Endnotes:

1. Rollo, pp 20-2l 2. Id., pp. 22-26 3. Id., pp. 27-37 4. Id., pp. 38-42. 5. Id., pp. 43-47 6. Id., p. 52. 7. Id., pp. 53-58. 8. Id., p 68 9. Id., p 69. 10. Id., pp 78-86. 11. 134 SCRA 172 (1985). 12. 168 SCRA 122 (1988). 13. National Housing Corporation v. Juco, 134 SCRA 172 (1985). 14. 173 SCRA 33 (1989). 15. PNOC-Energy Development Corporation v. NLRC, 201 SCRA 487 (1991) The NHC (now NHA).

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EN BANC G.R. No. 116041 March 31, 1995 NESCITO C. HILARIO, Petitioner, v. CIVIL SERVICE COMMISSION and CHARITO L. PLANAS,Respondents.chanrobles virtual law library ROMERO, J.: This is a petition for certiorari with prayer for the issuance of a Temporary Restraining Order and Preliminary Injunction. Petitioner seeks to declare CSC Resolution No. 94-3336 dated June 23, 1994 and Resolution No. 93-4067 dated September 21, 1993 of the Civil Service Commission (CSC) null and void.chanroblesvirtualawlibrarychanrobles virtual law library On August 18, 1986, petitioner was appointed as City Attorney by the then OIC Brigido R. Simon, Jr., at that time the Officer-In-Charge of the Office of the Mayor of Quezon City under the Freedom Constitution of 1986.chanroblesvirtualawlibrarychanrobles virtual law library On July 24, 1992, the newly-elected mayor, Ismael Mathay, Jr. took over from Mayor Simon.chanroblesvirtualawlibrarychanrobles virtual law library Mayor Mathay issued a letter 1dated July 24, 1992 to petitioner, which states: In the absence of a tender of resignation on your part from your present position as City Attorney (City Legal Officer), please be informed that pursuant to Sec. 481, Art. II of the Local Government Code of 1991 providing that the position of City Legal Officer is co-terminous with the appointing authority, you are considered resigned as of June 30, 1992. On July 1, 1993, respondent Vice Mayor Charito L. Planas of Quezon City filed a complaint 2with the CSC against petitioner and a certain Jose L. Pecson praying that respondents be found administratively liable for usurpation, grave misconduct, being notoriously undesirable, gross insubordination, and conduct grossly prejudicial to the best interest of the service.chanroblesvirtualawlibrarychanrobles virtual law library On September 21, 1993, the CSC issued Resolution No. 93-4067, 3the dispositive portion of which states: WHEREFORE, foregoing premises considered, the Commission resolves to hold in abeyance any administrative disciplinary action against Atty. Nescito C. Hilario. However, Atty. Hilario should not be allowed to continue holding the position of the Legal Officer (City Attorney) of Quezon City. Petitioner filed a Motion for Reconsideration which was denied by the CSC in its Resolution No. 94-3336, 4the dispositive portion of which states: WHEREFORE, foregoing premises considered, the Commission hereby resolves to deny the motion for reconsideration of Atty. Nescito Hilario. Accordingly, CSC Resolution No. 93-4067 dated September 21, 1993 stands.chanroblesvirtualawlibrarychanrobles virtual law library

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The Commission hereby orders the Cashier of the Quezon City government to stop payment of salaries to Atty. Hilario, otherwise the former shall be personally liable for its refund.chanroblesvirtualawlibrarychanrobles virtual law library Let copies of this Resolution be furnished Mayor Ismael A. Mathay, Jr. and Vice Mayor Charito L. Planas at their known addresses. Hence, this petition.chanroblesvirtualawlibrarychanrobles virtual law library Petitioner raises the following issues:chanrobles virtual law library (1) petitioner's position as city legal officer is not confidential; andchanrobles virtual law library (2) respondent CSC has no authority to remove or terminate the services of petitioner.chanroblesvirtualawlibrarychanrobles virtual law library Petitioner alleges that when he was appointed City Attorney, the applicable law governing his appointment was Batas Pambansa Blg. 337 and, therefore, his position should not be considered confidential. He argues that although the said position was considered confidential under Republic Act No. 5185, Batas Pambansa Blg. 337 impliedly repealed the confidential nature of the position when it expanded the duties of City Attorney.chanroblesvirtualawlibrarychanrobles virtual law library We find petitioner's contention to be devoid of merit.chanroblesvirtualawlibrarychanrobles virtual law library The relevant provision of Republic Act No. 5185 states: Sec. 19. Creation of positions of Provincial Attorney and City Legal Officer. - To enable the provincial and city governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial attorney and city legal officer may be created and such officials shall be appointed in such manner as is provided for under Section four of this Act. For this purpose, the functions hitherto performed by the provincial and city fiscals in serving as legal adviser and legal officer for civil cases of the province and city shall be transferred to the provincial attorney and city legal officer, respectively. . . . (Emphasis supplied) Batas Pambansa Blg. 337, Section 188 enumerates the qualifications, powers and duties of the city legal officer thus: Sec. 188. Appointment, Qualifications, Compensation, Powers and Duties. - (1) The city legal officer shall be appointed by the city mayor, subject to civil service law, rules and regulation.chanroblesvirtualawlibrarychanrobles virtual law library (2) No person shall be appointed city legal officer unless he is a citizen of the Philippines, of good moral character, a member of the Philippine Bar, and has acquired experience in the

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practice of his profession for at least five years.chanroblesvirtualawlibrarychanrobles virtual law library (3) The city legal officer shall receive such compensation, emoluments and allowances as may be determined by law or ordinance.chanroblesvirtualawlibrarychanrobles virtual law library (4) The city legal officer shall be the chief legal adviser of the city and all offices thereof, and as such shall: (a) Represent the city in all civil cases wherein the city or any officer thereof, in his official capacity, is a party;chanrobles virtual law library (b) When required, draft ordinances, contracts, bonds, leases and other instruments involving any interest of the city, and inspect and pass upon any such instruments already drawn;chanrobles virtual law library (c) Give his opinion in writing, when requested by the mayor or the sangguniang panlungsod, upon any question relating to the city or the rights or duties of any city officer;chanrobles virtual law library (d) Investigate or cause to be investigated any city officer for neglect or misconduct in office, or any person, firm or corporation holding any franchise or exercising any public privilege from the city for failure to comply with any condition, or to pay any consideration mentioned in the grant of such franchise or privilege, and recommend appropriate action to the sangguniang panlungsod and the city mayor;chanrobles virtual law library (e) Institute and prosecute in the city's interest when directed by the mayor, a suit on any bond, lease, or other contract upon any breach or violation thereof; andchanrobles virtual law library (f) Exercise such other powers and perform such other duties and functions as may be prescribed by law ordinance. An examination of the provisions of Batas Pambansa Blg. 337 reveals no intention by the legislature to remove the confidential nature of the position of city legal officer. What it does, is to merely specify the various qualifications, powers and duties of a city legal officer which were not enumerated under Republic Act No. 5185.chanroblesvirtualawlibrarychanrobles virtual law library We have consistently held in previous cases 5that the position of City Legal Officer is a confidential one. In the recent case of Griño v. Civil Service Commission, 6respondent was appointed provincial attorney at a time when Batas Pambansa Blg. 337 was in effect. We held that the position of City Legal Officer has its counterpart in the position of provincial attorney appointed by the provincial governor, both being positions involving the rendering of trusted services. We said: By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as the legal adviser and legal officer for the civil cases of the province and the city that they work

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for. Their services are precisely categorized by law to be "trusted services."chanrobles virtual law library A comparison of the functions, powers and duties of a city legal officer as provided in the Local Government Code with those of the provincial attorney of Iloilo would reveal the close similarity of the two positions. Said functions clearly reflect the highly confidential nature of the two offices and the need for a relationship based on trust between the officer and the head of the local government unit he serves. The "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the highest degree of trust. Petitioner next questions the validity of CSC Resolution Nos. 93-4067 and 94-3336 for having been issued without authority. He argues that the CSC "usurped the power, functions, and prerogatives of Mayor Mathay to exclusively discipline and decide on matters affecting the conduct and employment of Quezon City employees and officials who are under his control and supervision." 7CSC Resolution 94-3336 states that: "It appears that Atty. Hilario was issued an appointment effective August 18, 1986 by then Mayor Simon. Hence, his term of office is deemed to have automatically expired when now Quezon City Mayor Mathay was elected in office and subsequently assumed his position."chanrobles virtual law library Petitioner maintains that the Mayor is the only one who may remove him from office directly and not the CSC, which only has appellate powers to review the decision of the Mayor.chanroblesvirtualawlibrarychanrobles virtual law library We find this argument untenable.chanroblesvirtualawlibrarychanrobles virtual law library Nothing in the Administrative Code precludes the CSC from deciding a disciplinary case before it. Precisely, Section 47 thereof, states: Sec. 47. Disciplinary Jurisdiction. - (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a complaint directly with the CSC against petitioner. Thus, when the CSC determined that petitioner was no longer entitled to hold the position of City Legal Officer, it was acting within its authority under the Administrative Code to hear and decide complaints filed before it.chanroblesvirtualawlibrarychanrobles virtual law library Petitioner further claims that he is not covered by Republic Act No. 7160, otherwise known as The Local Government Code of 1991, which explicitly states that the term of the legal officers shall be co-terminous with the office appointing authority. 8He argues that the co-terminous

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provision applies only to future appointments of the legal officer but does not apply to incumbents.chanroblesvirtualawlibrarychanrobles virtual law library This provision is but a reiteration of the principle that since the position of City Legal Officer is a confidential one, it is perforce deemed to be co-terminous with that of the appointing authority.chanroblesvirtualawlibrarychanrobles virtual law library Lastly, petitioner alleges that although Mayor Mathay in his letter dated July 24, 1992 considered him resigned as of June 30, 1992, the latter still continued to give him legal assignments, a cogent indication that Mayor Mathay still reposes trust and confidence in him; thus, there is no reason for him to vacate his office.chanroblesvirtualawlibrarychanrobles virtual law library If Mayor Mathay really intended to retain the services of petitioner as City Legal Officer, he could easily have done so by issuing a formal appointment to this effect. This he did not do. In fact, at no time during the proceedings before the Civil Service Commission did Mayor Mathay ever indicate a desire to rescind his letter dated July 24, 1992. Nor did the Mayor raise any objection when the CSC ordered petitioner to vacate the position of City Legal Officer in Quezon City.chanroblesvirtualawlibrarychanrobles virtual law library We can only draw the irresistible conclusion that Mayor Mathay's silence is eloquent proof that he does not intend petitioner to continue in the said position.chanroblesvirtualawlibrarychanrobles virtual law library WHEREFORE, the instant petition is hereby DISMISSED for lack of merit.chanroblesvirtualawlibrarychanrobles virtual law library SO ORDERED. Feliciano, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library Narvasa, C.J., took no part. chanrobles virtual law library chanrobles virtual law library Separate Opinion PADILLA, J., concurring:chanrobles virtual law library In Griño v. Civil Service Commission (194 SCRA 458), I stated in my dissenting opinion that the position of provincial attorney (and, by analogy, the city attorney) is not primarily confidential but a career position, and, as such, the holder of the office owes his loyalty not to the appointing authority (the provincial governor or city mayor) but to the provincial or city government for which he acts as counsel or attorney.chanroblesvirtualawlibrarychanrobles virtual law library

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The attorney-client relationship existed really between the local government unit concerned and the lawyer appointed to the position of provincial or city attorney. It was clear that it should be the local government unit concerned which should decide whether or not to terminate said relationship and not the governor or mayor alone. In other words, governors and mayors could go but the provincial attorney and city attorney would remain as a career officer, subject to removal only for cause as provided by law and the civil service rules.chanroblesvirtualawlibrarychanrobles virtual law library It is unfortunate, however, that the Local Government Code of 1991 (Rep. Act No. 7160) in Sec. 481 made the position of legal officer co-terminous with that of the appointing authority. This, in my opinion, certainly adds to the demoralization within the ranks of career government employees since appointments to the position of legal officer can now be based on considerations other than performance, efficiency, dedication and public service. The "spoils system" is now given free reign at least in the position of provincial attorney and city attorney.chanroblesvirtualawlibrarychanrobles virtual law library Given the above provision of the Local Government Code, I am left with no choice but to concur with the Court's decision.chanroblesvirtualawlibrarychanrobles virtual law library Separate Opinions PADILLA, J., concurring:chanrobles virtual law library In Griño v. Civil Service Commission (194 SCRA 458), I stated in my dissenting opinion that the position of provincial attorney (and, by analogy, the city attorney) is not primarily confidential but a career position, and, as such, the holder of the office owes his loyalty not to the appointing authority (the provincial governor or city mayor) but to the provincial or city government for which he acts as counsel or attorney.chanroblesvirtualawlibrarychanrobles virtual law library The attorney-client relationship existed really between the local government unit concerned and the lawyer appointed to the position of provincial or city attorney. It was clear that it should be the local government unit concerned which should decide whether or not to terminate said relationship and not the governor or mayor alone. In other words, governors and mayors could go but the provincial attorney and city attorney would remain as a career officer, subject to removal only for cause as provided by law and the civil service rules.chanroblesvirtualawlibrarychanrobles virtual law library It is unfortunate, however, that the Local Government Code of 1991 (Rep. Act No. 7160) in Sec. 481 made the position of legal officer co-terminous with that of the appointing authority. This, in my opinion, certainly adds to the demoralization within the ranks of career government employees since appointments to the position of legal officer can now be based on considerations other than performance, efficiency, dedication and public service. The "spoils system" is now given free reign at least in the position of provincial attorney and city attorney.chanroblesvirtualawlibrarychanrobles virtual law library Given the above provision of the Local Government Code, I am left with no choice but to concur with the Court's decision.

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Endnotes: 1 Rollo, p. 8.chanrobles virtual law library 2 Annex "U," Petition; p. 90.chanrobles virtual law library 3 Annex "X," Petition; Rollo, p. 105.chanrobles virtual law library 4 Annex "A," Petition; Rollo, p. 36.chanrobles virtual law library 5 Besa v. Philippine National Bank, 33 SCRA 330 (1970); Claudio v. Subido, 40 SCRA 481 (1971); Villegas v. Subido, 41 SCRA 190 (1971).chanrobles virtual law library 6 194 SCRA 458, 467 (1991).chanrobles virtual law library 7 Rollo, p. 214, Reply of Petitioner.chanrobles virtual law library 8 Sec. 481, Art. II, R.A. 7160.

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SECOND DIVISION [G.R. No. 141141. June 25, 2001.] PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR), Petitioner, v. CARLOS P. RILLORAZA, Respondent. DECISION DE LEON, JR., J.: Before us is a petition for review on certiorari praying for the reversal of the Decision dated August 31, 1999 1 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803.chanrob1es virtua1 1aw 1ibrary The facts are undisputed:chanrob1es virtual 1aw library On November 5, 1997, administrative charges for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and loss of confidence, were brought against respondent Carlos P. Rilloraza, a casino operations manager of petitioner PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR). Respondent allegedly committed the following acts:chanrob1es virtual 1aw library Summary description of charge(s):chanrob1es virtual 1aw library Failure to prevent an irregularity and violations of casino and regulations committed by coofficers during his shift on October 9, 1997. 1. During his shift of 6:00 a.m.-2:00 p.m. on October 9, 1997, four (4) personal checks with a total value of Pesos: Five Million (P5,000,000) were issued by a small-time financier/player and were facilitated by a COM with the Treasury Division which enabled the small-time financier/player to withdraw and receive said amount. The facilitation of the checks was not authorized by the Senior Branch Manager (SBM) or the Branch Manager for Operations (BMO) and the COM who facilitated the checks was not on duty then. 2. He even facilitated one (1) of the personal checks with a value of Pesos: Five Hundred Thousand (P500,000.00) 3. He failed to stop a top-ranking officer from placing bets over and above the allowable limit of P5,000.00 per deal, he failed to stop the same officer from playing in the big tables and lastly, he allowed the same officer to play beyond the allowable time limit of 6:00 a.m. Respondent duly filed his answer during an investigation conducted by petitioner’s Corporate Investigation Unit. He narrated the events that transpired:jgc:chanrobles.com.ph "When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw BM RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside Area 3. While

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inside the Area 3, GAM RENE QUITO approached me with a check worth P500,000.00 requested by a customer for endorsement to the Treasury. Since I’ve been out of Manila branch for 2 years and I’ve just been recalled to this branch for only more than 3 weeks, I’m not quite familiar with the systems and I don’t know this customer. I immediately approached COM CARLOS GONZALES, who at that time was still around, to verify regarding the said check and his immediate reply was "IT’S OKAY AND GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN’. In fact, I reconfirmed it again with COM GONZALES since he is more familiar with the systems and customers, he answered me the same. So I gave the approval to GAM QUITO for endorsement. When I went in the office, I instructed OOS GILBERT CABANA to beep SBM VIC ADVINCULA and BMO DARIO CORDERO to call office "ASAP" because I wanted to relay this matter to them and there were no reply from both of them. I instructed OOS CABANA to send messages again to SBM & BMO, but still I received no reply. It was until after noontime that BMO CORDERO returned my call and I reported the incident to him. When I was at home at around 3:30 p.m. SBM ADVINCULA returned my call and I reported the incident. I also relayed the incident to SBM REYES. While during my rounds, I went down to the New VIP area and there I saw BM SYHONGPAN sitting at TABLE #3 (BB) and he was holding house cards at that time. I approached and stopped him but he reacted that the bet was not his but to a CUSTOMER’S. I took his words because as a subordinate, I respected him as one of our superior who very well know all our company’s policy esp. that an officer is not allowed to play at BIG table and are only allowed to bet with a maximum of P5,000.00 only. So I believe it was not his bet but the said customer. At that time there was no way for me to stop the game because I saw the said customer, named MS. CORAZON CASTILLO, whom I don’t know her [sic] since I was out of Manila Branch 2 years, and whom BM SYHONGPAN was referring to as the player, has a lot of chips worth about P7 Million in front of her and was betting P1.5 M on the banker side which was over the maximum table limit by P500,000.00. I know we are allowed to authorize approval by raising the betting limits as per request of the playing customers. After the game, the chips were encashed and I instructed GAM J. EUGENIO to accompany BM SYHONGPAN to his room because he was too drunk. When I was doing my rounds again, that’s how I found out from rumors within the gaming areas that this MS. CASTILLO was used by BM SYHONGPAN and COM GONZALES to played [sic] in behalf of them the whole time. And I also learned that there were four checks endorsed during my shift which I facilitated only one check worth P500,000.00 after I verified and confirmed it with COM GONZALES. With regards to the other 3 checks, I have no knowledge about it since they, BM SYHONGPAN and COM GONZALES, kept it a secret from me. When GAM EUGENIO returned from the room of BM SYHONGPAN he handed me some cash, which according to him, was given by BM SYHONGPAN as ‘BALATO’. I did not accept the money because at that moment I was so mad that they involved me beyond my innocence since I am new in the branch. I then instructed GAM EUGENIO to return the money to BM SYHONGPAN. (sic) Finding Rilloraza’s explanation unsatisfactory, the PAGCOR Board handed down a Resolution on December 2, 1997 dismissing respondent and several others from PAGCOR, on the grounds of dishonesty, grave misconduct and/or conduct prejudicial to the best interest of the service and loss of confidence, effective December 5, 1997. The Board also denied respondent’s motion for reconsideration in a Resolution dated December 16, 1997. Respondent appealed to the Civil Service Commission. On November 20, 1998, the

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Commission issued Resolution No. 983033, 2 the dispositive portion of which provides, to wit:chanrob1es virtual 1aw library WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the Commission finds appellant guilty only of Simple Neglect of Duty and metes out upon him the penalty of one month and one day suspension. The assailed Resolution of PAGCOR Board of Directors is thus modified. The Commission denied petitioner’s motion for reconsideration in Resolution No. 990465 dated February 16, 1999. 3 On appeal, the Court of Appeals affirmed the resolution of the Commission. 4 The appellate court ordered petitioner to reinstate private respondent with payment of full backwages plus all tips, bonuses and other benefits accruing to his position and those received by other casino operations managers for the period starting January 5, 1998 until his actual reinstatement. Petitioner filed a motion for reconsideration, 5 which was denied by the appellate court in the assailed resolution of November 29, 1999. 6 Hence, the instant petition. PAGCOR avers that:chanrob1es virtual 1aw library I THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF CONFIDENCE.chanrob1es virtua1 1aw 1ibrary II THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC RESOLUTIONS MODIFYING THE PENALTY METED OUT ON RESPONDENT FROM DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY OR SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON ACCOUNT OF THE EXTRAORDINARY RESPONSIBILITIES AND DUTIES REPOSED IN THE RESPONDENT BY VIRTUE OF HIS POSITION. The wellspring of stability in government service is the constitutional guarantee of entrance according to merit and fitness and security of tenure, viz:chanrob1es virtual 1aw library x

x

x

(2) 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 policy-determining, primarily confidential, or highly technical, by competitive examination.

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(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. 7 x

x

x

In the case at bar, we are basically asked to determine if there is sufficient cause to warrant the dismissal, not merely the suspension, of respondent who, petitioner maintains, occupies a primarily confidential position. In this connection, Section 16 of Presidential Decree No. 1869 8 provides:chanrob1es virtual 1aw library Exemption. — 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" appointee. Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily confidential employee. Hence, he holds office at the pleasure of the appointing power and may be removed upon the cessation of confidence in him by the latter. Such would not amount to a removal but only the expiration of his term. However, there should be no lingering doubt as to the true import of said Section 16 of P.D. No. 1869. We have already definitively settled the same issue in Civil Service Commission v. Salas, 9 to wit:chanrob1es virtual 1aw library 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. 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. 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 all-encompassing. 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

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freedom from misgivings of betrayals of personal trust or confidential matters of state. 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 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 policydetermining, primarily confidential, or highly technical in nature." In the case of Piñero, Et. Al. v. Hechanova, Et Al., the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law, thus:jgc:chanrobles.com.ph "The change from the original wording of the bill (expressly declared by law . . . 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 Tañada, that as originally worded the proposed bill gave Congress power to declare by fiat 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, policydetermining 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, . . . who is going to determine whether it is primarily confidential?’ Senator Tañada replied:chanrob1es virtual 1aw library ‘SENATOR TAÑADA: 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.." . . . 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 determination 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. 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. [Emphasis supplied] The doctrinal ruling enunciated in Piñero 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. It may well be observed that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that

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"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 PresidentialDecree No. 807 states 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." Let it be here 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.chanrob1es virtua1 1aw 1ibrary The question that may now be asked is whether the Piñero 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, Book V of which deals specifically with the Civil Service Commission, considering that from these later enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" was deleted. 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:jgc:chanrobles.com.ph "MR. FOZ:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld?

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FR. BERNAS:chanrob1es virtual 1aw library I agree that that should be the general rule; that is why we are putting this as an exception. MR. FOZ:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library 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."cralaw virtua1aw library 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 noncompetitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. [Emphasis supplied] 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 as primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." Accordingly, the Piñero 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.

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Justice Regalado’s incisive discourse yields three (3) important points: first, the classification of a particular position as primarily confidential, policy-determining or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true test being the nature of the position. Second, whether primarily confidential, policy-determining or highly technical, the exemption provided in the Charter pertains to exemption from competitive examination to determine merit and fitness to enter the civil service. Such employees are still protected by the mantle of security of tenure. Last, and more to the point, Section 16 of P.D. 1869, insofar as it declares all positions within PAGCOR as primarily confidential, is not absolutely binding on the courts.chanrob1es virtua1 1aw 1ibrary Considerations vary so as to make a position primarily confidential. Private secretaries are indisputably primarily confidential employees. 10 Those tasked to provide personal security to certain public officials have also been deemed to hold primarily confidential positions 11 for obvious reasons: the former literally are responsible for the life and well-being of the latter. Similar treatment was accorded to those occupying the posts of city legal officer 12 and provincial attorney, 13 inasmuch as the highly privileged nature of the lawyer-client relationship mandates that complete trust and confidence must exist betwixt them. National interest has also been adjudged a factor, such that the country’s permanent representative to the United Nations was deemed to hold her post at the pleasure of the Chief Executive. 14 As casino operations manager, Rilloraza’s duties and responsibilities are:chanrob1es virtual 1aw library JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the Operations Division of the branch. He reports directly to the Branch Manager or to the Branch Manager for Operations in Metro Manila branches. DUTIES AND RESPONSIBILITIES:chanrob1es virtual 1aw library 1. Formulates marketing programs and plans of action for branch gaming operations in order to optimize revenue. 2. Institutes and maintains a healthy, organized, mentally alert, and highly motivated human resource for effective and efficient branch gaming operations performance. 3. Takes measures to maintain and uphold the integrity of the casino games. 4. Reviews, analyzes, and evaluates gaming table and slot machine operations reports, including income performance. 5. Submits periodic reports to the Branch Manager. 6. Directs the opening and closing of gaming table and slot machine areas. 7. Directs the setting-up, closure or suspension of operations of gaming tables and slot machine units when deemed necessary.

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8. Controls the requisition, storage, and issuance of playing cards, gaming equipment and paraphernalia, operations keys, and accountable receipts and slips. 9. Ensures that gaming operations personnel adhere to the established House Rules, company policies and procedures. 10. Ensures that quality and efficient service is extended to casino patrons in accordance with the established House Rules, company policies and procedures. 11. Directs and controls all activities of the Card Shuffling Center and the Card Distribution Room. 12. Issues directives, memoranda, and other official communications on branch gaming operations matters. 13. Directs the daily and periodic performance evaluation of operations personnel. 14. Requires written statements from operations personnel regarding disputes, reported irregularities and violations of House Rules, company policies and procedures. 15. Issues or recommends disciplinary sanctions against delinquent operations personnel, as well as commendations to deserving ones. 16. Upon the Branch Manager’s approval, issues preventive suspension to erring employees pending investigation. 17. Effects immediate changes in House Rules when deemed necessary, subject to management review. 18. Approves table refill, chip yield, and dropbox yield transactions, as well as the payment for progressive link super jackpot awards. 19. Directs the cancellation of progressive link super jackpot combinations. 20. Signs chip checks in behalf of the Branch Manager. 21. Approves complimentary food and beverages to deserving players and evaluates the same for the possible extension of other amenities. 22. Settles disputes arising from gaming operations that have not been effectively settled by gaming managers and supervisors, and enforces decisions on the interpretation of House Rules, company policies, and procedures. 23. Recommends to the Branch Manager the banning of undesirable players. 24. Orders the removal of customers or employees from the table gaming (sic) and slot machine area for justifiable reasons. 25. Implements contingency plans in case of emergencies to ensure the security and safety of

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customers and staff. 26. Acts on customer complaints, suggestions, and observations. 27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad hoc committees of the Operations Division. 28. Represents the Operations Division in Branch Management panel meetings. 29. Apprises the Branch Manager of any incident of doubtful nature and of developments that require his immediate attention. 30. Performs other duties as may be designated by the Branch Manager. Undoubtedly, respondent’s duties and responsibilities call for a great measure of both ability and dependability. They can hardly be characterized as routinary, for he is required to exercise supervisory, recommendatory and disciplinary powers with a wide latitude of authority. His duties differ markedly from those we previously ruled as not primarily confidential: for instance, PAGCOR’s Internal Security Staff; 15 Management and Audit Analyst I of the Economic Intelligence and Investigation Bureau; 16 a Special Assistant to the Governor of the Central Bank; 17 the Legal Staff of the Provincial Attorney; 18 members of the Customs Police; 19 the Senior Executive Assistant, Clerk I, Supervising Clerk I and Stenographer; 20 and a Provincial Administrator. 21 In this sense, he is a tier above the ordinary rank-and-file in that his appointment to the position entails faith and confidence in his competence to perform his assigned tasks. Lacking, therefore, is that amplitude of confidence reposed in him by the appointing power so as to qualify his position as primarily confidential. Verily, we have observed that:chanrob1es virtual 1aw library [i]ndeed, 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. 22 We further note that a casino operations manager reports directly to the Branch Manager or, in Metro Manila branches, to the Branch Manager for Operations. It does not appear from the record to whom the Branch Manager (or the Branch Manager for Operations, as the case may be) reports. It becomes unmistakable, though, that the stratum separating the casino operations manager from reporting directly to the higher echelons renders remote the proposition of proximity between respondent and the appointing power. There is no showing of that element of trust indicative of a primarily confidential position, as we defined it in De los Santos v. Mallare, 23 to wit:chanrob1es virtual 1aw library Every appointment implies confidence, but much more than ordinary confidence is reposed in

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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.chanrobles virtuallawlibrary Necessarily, the point of contention now is whether there was cause for the respondent’s separation from the service. On this point, having analyzed both parties’ arguments, we find that the Civil Service Commission did not err in declaring that Rilloraza was liable only for simple neglect of duty. In the first place, there is no evidence to sustain a charge of dishonesty. As the latter term is understood, it implies a:chanrob1es virtual 1aw library Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. 24 In the case at bar, respondent’s explanation fails to evince an inclination to lie or deceive, or that he is entirely lacking the trait of straightforwardness. We concur with the appellate court’s finding, thus:chanrob1es virtual 1aw library Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at Table No. 3BB, respondent Rilloraza at once, told him to stop. However, Syhongpan explained that he was merely playing for a customer, Ms. Corazon Castillo who was seated also at the table. After observing the large number of chips in front of Ms. Castillo estimated at around P7M, respondent became convinced of the clarification given by Branch Managa Syhongpan and he must have relied also on the word of said top ranking PAGCOR official whose representation must ordinarily be accepted and accorded respect and credence by a subordinate like him. . . . More importantly, the PAGCOR Adjudication Committee concluded that respondent actually attempted to stop the game where Syhongpan was playing which was even utilized as basis by the PAGCOR Board in dismissing Respondent. . . . x

x

x

The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above the allowable limit of P5,000.00 per deal is not anchored on a correct premise. Respondent Rilloraza has steadfastly maintained that he is of the belief that BM Syhongpan is not playing for himself but for Ms. Castillo. Thus, if Syhongpan is merely acting for the real casino player, then the policy of not allowing any PAGCOR official to bet beyond P5,000.00 has no application. Respondent Rilloraza believed in good faith that the bet was not BM Syhongpan’s but of Ms. Castillo and should not be unduly punished for his honest belief. The same reason exists for the claim that respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is non sequitur since Rilloraza never entertained the idea that Syhongpan was the gambler. Lastly, if only to consummate respondent’s alleged dishonesty and grave misconduct by corruptly profiting from said incident, he could have easily pocketed the ‘balato’ given by Syhongpan, but he never did, and in fact, returned the money. . . .

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x

x

x

On the facilitation of the swap of a P500,000.00 personal check for chips, this Court, after considering the parties involved and the circumstances of the case, believes that respondent Rilloraza has judiciously performed all the acts necessary to protect the interests of PAGCOR and has acted as a prudent and reasonable man. It is evident that respondent had the authority to approve the exchange of checks for gambling chips. In the exercise of such discretion, We find that the approval by Rilloraza of the exchange was done with caution and circumspect [sic]. When he was approached by GAM Quito for endorsement of said personal checks per request of a customer, he immediately approached COM Gonzales to verify the check who assured him that the check was good and in fact guaranteed by Mr. Syhongpan, Davao City Branch Manager of PAGCOR. To be sure, he even reconfirmed the same with Gonzales as he is more familiar with the systems and the customers since he has been recalled to the branch for only three (3) weeks. After approving the endorsement, he immediately tried to contact SBM Advincula and BMO Cordero, to notify them of his action but none of them called back. In the afternoon, both returned the call and were informed by respondent of the exchange of the chips for the check and presumably, the former ratified or acquiesced to the action of respondent since there was no objection or complaint about the matter. . . . These same findings negate the conclusion that respondent is guilty of misconduct or conduct prejudicial to the best interest of the service. In Manuel v. Calimag, Jr., 25 we defined misconduct, thus:chanrob1es virtual 1aw library Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: "Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer . . . . It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer, must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office . . . Differently propounded in Canson v. Garchitorena, Et Al., 26 misconduct is any unlawful conduct on the part of a person concerned in the administration of justice prejudicial to the rights of parties or to the right determination of the cause. It generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent. On the other hand, the term ‘gross’ connotes something ‘out of all measure; beyond allowance; not to be excused; flagrant; shameful’." From the facts given, absent is that element of intent to do wrong against petitioner. CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty as a less grave offense punishable as a first offense by suspension of one (1) month and one (1) day to six (6) months. 27 In the imposition of the proper penalty, Section 54 thereof provides, as follows: (a) the minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present; (b) the medium of the penalty shall be imposed where

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no mitigating and aggravating circumstances are present; and (c) the maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present. In turn, the circumstances that may be properly considered are:chanrob1es virtual 1aw library SECTION 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. — In the determination of the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be considered.chanrob1es virtua1 1aw 1ibrary The following circumstances shall be appreciated:chanrob1es virtual 1aw library a. Physical illness b. Good faith c. Taking undue advantage of official position d. Taking undue advantage of subordinate e. Undue disclosure of confidential information f. Use of government property in the commission of the offense g. Habituality h. Offense is committed during office hours and within the premises of the office or building i. Employment of fraudulent means to commit or conceal the offense j. Length of service in the government k. Education, or l. Other analogous circumstances Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party, otherwise, said circumstances shall not be considered in the imposition of the proper penalty. The Commission, however, in the interest of substantial justice may take and consider these circumstances.chanrob1es virtua1 1aw 1ibrary We find that the Civil Service Commission, as affirmed by the Court of Appeals, correctly attributed good faith on the part of Respondent. Accordingly, the modified penalty imposed by the Civil Service Commission on the respondent which was affirmed by the Court of Appeals, was proper under the premises. WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated August 31, 1999 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 51803 are hereby AFFIRMED. No costs.chanrob1es virtua1 1aw 1ibrary

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SO ORDERED. Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur. Endnotes:

1. Justice Presbitero J. Velasco, Jr., ponente; Justice Fermin A. Martin, Jr. and Justice Bennie A. Adefuin-de la Cruz, concurring. 2. Annex "C" of the Petition, Rollo, pp. 62-70. 3. Annex "D" of the Petition, Rollo, pp. 71-72. 4. Decision, Annex "A" of the Petition, Rollo, pp. 33-57. 5. Annex "E" of the Petition, Rollo, pp. 73-80. 6. Annex "B" of the Petition, Rollo, pp. 59-60. 7. Constitution, Art. IX-B, Sec. 2. 8. Entitled "Consolidating and Amending Presidential Decree Nos. 1067-A, 1067-B, 1067-C, 1399 and 1632, Relative to the Franchise and Powers of the Philippine Amusement and Gaming Corporation (PAGCOR), dated July 11, 1983."cralaw virtua1aw library 9. 274 SCRA 414, 420-427 (1997) 10. Corpus v. Cuademo, Sr., 13 SCRA 591, 596 (1965). 11. Borres v. Court of Appeals, 153 SCRA 120, 132 (1987). 12. Cadiente v. Santos, 142 SCRA 280, 284 (1986), citing Claudio v. Subido, 40 SCRA 481 (1971). 13. Griño v. Civil Service Commission, 194 SCRA 458, 466 (1991). 14. Santos v. Macaraig, 208 SCRA 74, 84 (1992). 15. Civil Service Commission v. Salas, supra. 16. Tria v. Sto. Tomas, 199 SCRA 833, 840-841 (1991). 17. Corpuz v. Cuaderno, supra. 18. Griño v. Civil Service Commission, supra. 19. Piñero v. Hechanova, 18 SCRA 417, 424 (1966).

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20. Ingles v. Mutuc, 26 SCRA 171, 177 (1969). 21. Laurel v. Civil Service Commission, 203 SCRA 195, 204 (1991). 22. Ingles v. Mutuc, supra. 23. 87 Phil. 289, 298 (1950). 24. Black’s Law Dictionary, Sixth Ed., p. 468, 1990. 25. 307 SCRA 657, 661-662 (1999). 26. 311 SCRA 268, 285 (1999). 27. Sec. 52(B).

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EN BANC [G.R. No. L-26838. May 29, 1970.] TOMAS BESA, Petitioner, v. PHILIPPINE NATIONAL BANK; HON. ROBERTO S. BENEDICTO, President of the Philippine National Bank; THE BOARD OF DIRECTORS, Philippine National Bank; HON. ANTONIO M. DIAZ, BIENVENIDO M. JUAT, SIMEON G. MIRANDA, JUAN PONCE ENRILE, ISMAEL M. REINOSO, and JUAN TRIVIÑO, Members of the Board of Directors of the Philippine National Bank; and HON. CONRADO E. MEDINA, Actg. Asst. Vice-President, In-charge of the Loans Adjustment Dept., Respondents. Juan T. David for Petitioner. Jose L. Africa and Miguel V. Gonzales for respondents Philippine National Bank President, Et. Al. Conrado E. Medina for respondents Philippine National Bank and The Board of Directors. SYLLABUS 1. CONSTITUTIONAL LAW; CIVIL SERVICE; REMOVAL FOR CAUSE; NOT APPLICABLE WHEN TERM DEPENDS ON THE WILL OF APPOINTING POWER. — It is appropriate to invoke the constitutional provision against removal without cause when an officer or employee in the civil service enjoying fixed term is made to lose his position without warrant or justification. It finds no application when the duration of one’s term depends on the will of the appointing power. That is so when the position held is highly confidential in character. 2. ID.; ID.; ID.; POSITION OF CHIEF COUNSEL OF PNB IS BOTH CONFIDENTIAL AND TECHNICAL IN NATURE. — The position of Chief Legal Counsel of PNB is highly confidential in nature, in essence of which is the utmost degree of confidence involving such "close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals" whether personal trust or official matters. The incumbent’s term could be cut short anytime without giving rise to any alleged infringement of the removal-for-cause guarantee of the constitution. In the instant case there is no removal which according to such constitutional mandate is only allowable for cause. 3. ID.; ID.; ID.; ID.; INCUMBENTS OF PRIMARILY CONFIDENTIAL POSITIONS. — The matter as to who is incumbent of a primarily confidential position was set forth with precision and clarity by the present Chief Justice in a recent decision. Thus : "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 his 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

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difference between the former — the primarily confidential officer — and the latter’s term is fixed and definite, whereas that of the former is not prefixed, 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." ‘ 4. ID.; ID.; ID.; ID.; CESSATION IN OFFICE INVOLVES NO REMOVAL. — The tenure of officials holding primarily confidential positions (such as private secretaries of public functionaries) ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures; and thus their cessation involves no removal. 5. ID.; ID.; ID.; INCUMBENTS OF PRIMARILY CONFIDENTIAL POSITIONS DISTINGUISHED FROM THOSE OF HIGHLY TECHNICAL POSITION. — The constitution clearly distinguished the primarily confidential from the highly technical, and to apply the loss of confidence rule to the latter incumbents is to ignore and erase the differentiation expressly made by our fundamental charter. 6. ID.; ID.; ID.; POSITION OF LEGAL COUNSEL OF PNB ALTHOUGH HIGHLY TECHNICAL, STILL PRIMARILY CONFIDENTIAL. — It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that matter is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. That is his right; his decision to terminate the relationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right to compensation earned be duly respected. 7. ID.; ID.; ID.; ID.; NO RIGHT TO FIXED TERM. — It is equally clear that where the position partakes of the attributes of being both technical and confidential, there can be no insistence on a fixed or definite term if the latter aspect predominates. To paraphrase the language of the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case of petitioner, should realize that at any time the appointing power may decide that his services are no longer needed. DECISION FERNANDO, J.: The constitutional safeguard against removal from office except for cause is invoked by petitioner Tomas Besa in this proceeding for certiorari, prohibition and quo warranto. 1 Appointed Chief Legal Counsel with the rank of Vice-President of respondent Philippine National Bank in 1962, he was shifted by virtue of a resolution of respondent Bank on October 19, 1966, to the office of its President, respondent Roberto S. Benedicto, as Consultant on Legal Matters, 2 with respondent Conrado E. Medina being assigned to his position. While petitioner would seek to nullify the above resolution and enjoin its enforcement, his action is essentially one of quo warranto. Its success is thus dependent on his being able to sustain the burden of demonstrating that what was done by respondent Bank, through its Board of

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Directors, all of whom were likewise named respondents, could in law be characterized as removal without cause contrary to the explicit mandate of the Constitution. That he was not able to do. The petition must fail. There is no dispute as to the facts. Petitioner was appointed on July 12, 1962 as Chief Legal Counsel of respondent Bank with the rank of Vice-President. On October 20, 1966, a letterdirective was issued by the then President of the Bank, respondent Benedicto, that he was transferred to his office as Consultant on Legal Matters. The justification for such a move was Resolution No. 1053 of respondent Board of Directors of the Bank, wherein it was expressly stated "that Vice President Tomas Besa be shifted to the Office of the President as Consultant on Legal Matters, without change in salary and other privileges."cralaw virtua1aw library Thereafter, on October 24, 1966, Petitioner, in a letter addressed to the respondent Board of Directors and respondent President Benedicto, sought a reconsideration of the action above taken. Under date of October 27, 1966, the Secretary of respondent Board of Directors advised petitioner of the denial of his motion for reconsideration. In the aforesaid letterdirective of October 20, 1966, respondent Conrado E. Medina was designated Vice-President and Chief Legal Counsel effective as of that day. In its answer, respondents admitted the above facts and stressed that respondent Medina far from usurping the position of petitioner "is Vice President and Chief Legal Counsel of the respondent Bank who has assumed office and discharged the duties thereof starting October 20, 1966 by virtue of a valid appointment extended to him by the respondent Board of Directors and a letter-directive issued pursuant thereto by respondent PNB President Roberto S. Benedicto." 3 The action taken in the case of petitioner was explained thus: "The transfer of petitioner from the Legal Department is further justified by the following facts and circumstances: a) The position of Chief Legal Counsel carries a special confidential relationship of lawyer and client. In this regard, the Bank has the prerogative to designate or change its lawyer, that is, to choose the lawyer, in whom it may have confidence, to head its Legal Department; b) As a matter of fact, it was on this same principle of confidence that in 1962 the petitioner, who was then an outsider (private practitioner), was appointed as Vice President and Chief Legal Counsel by the transfer of Atty. Ramon B. de los Reyes, who was then head (for twenty-one years) of the Legal Department, to a new position of Technical Assistant to the Executive Vice President, with only the rank of Assistant Vice President; c) The transfer of petitioner from the Legal Department was made by the respondent Board, in the exercise of its powers, upon the recommendation of their respondent PNB President. The respondent Board had authorized the PNB President to revitalize the Legal Department, . . ." 4 As was made clear at the outset, the law is not on the side of petitioner. His plea cannot be granted. 1. Petitioner’s reliance on the constitutional provision against removal without cause is misplaced. It is appropriate to invoke it when an officer or employee in the civil service enjoying a fixed term is made to lose his position without warrant or justification. It certainly finds no application when the duration of one’s term depends on the will of the appointing power. That is so where the position held is highly confidential in character. Such is the case of the Chief Legal Counsel of respondent Philippine National Bank. That is our answer to the specific question before us. Our decision is limited to the validity of the action taken by

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respondent Bank. We do not by any means intimate an opinion as to the legal consequences attaching to an action similar in character taken by any other office or agency of the government concerning a lawyer in its staff, especially one who was not employed precisely because of the marked degree of confidence reposed in him, but rather because of his technical competence. As far as the petitioner is concerned, however, it is our conclusion that he could not plausibly contend that there was a removal in the constitutional sense as what did take place was a termination of official relation. Accepting as he did the position of chief legal adviser, the essence of which is the utmost degree of confidence involving such "close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals" whether of personal trust or official matters, 5 he could not have been unaware that his term could be cut short any time without giving rise to any alleged infringement of the above constitutional safeguard. There was no removal which according to such a mandate is only allowable for cause. Hence the lack of persuasive character of petitioner’s plea. The matter was set forth with precision and clarity by the present Chief Justice in a recent decision. 6 Thus: "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 prefixed, 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’."cralaw virtua1aw library 2. Petitioner in his memorandum apparently was encouraged by the long, unbroken, unquestioned course of impressive adjudication of this Court that has given a well-nigh allembracing scope to the mantle of protection covering civil service personnel against removal without cause. So it has been from Lacson v. Romero 7 to the above-cited Ingles v. Mutuc decision. 8 So, it is to be expected, it would continue to be. Petitioner’s cause did not thereby gain ground however. For as had just been made clear, there was in his case no question of removal. The excerpts cited by him from a few of the authoritative precedents thus do not commend themselves for their pertinence or relevance. 9 There is a question raised by petitioner in his memorandum though, unfortunately not given the fullness of attention devoted to the removal aspect, which deserves to be further looked into. While the mode of inviting our attention to it could have benefited from a more precise delineation of its implications, reference to our Corpus v. Cuaderno 10 ruling would indicate that what petitioner had in mind was the permanency of the terms of an official whose line of work is likewise of a technical character. As was made clear by Justice J. B. L. Reyes, who penned the opinion: "The tenure of officials holding primarily confidential positions (such as private secretaries of public functionaries) ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures; and thus their cessation involves no removal. But the situation is different for those holding highly technical posts, requiring special

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skills and qualifications. The Constitution clearly distinguished the primarily confidential from the highly technical, and to apply the loss of confidence rule to the latter incumbents is to ignore and erase the differentiation expressly made by our fundamental charter."cralaw virtua1aw library Petitioner did satisfy himself with citing the title of the above decision and that of two subsequent cases 11 that adhere to the above principle. It could be that he was more than persuaded that such a succinct and abbreviated form of argumentation would suffice to carry the day. It does not, however, as a more careful analysis of the above doctrine would indicate. It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. That is his right; his decision to terminate the relationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right to compensation earned be duly respected. In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidential, there can be no insistence of a fixed or a definite term if the latter aspect predominates. To paraphrase the language of the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case of petitioner, should realize that at any time the appointing power may decide that his services are no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner’s efforts to retain his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053. 3. It is manifest from the foregoing that we have considered the crucial issue posed from the standpoint of the right enjoyed by respondent Bank to choose who its legal counsel should be and how long he would remain as such. We have not seen any need to pass upon the conflicting claims raised as to the alleged failure of petitioner in the discharge of his functions to extend the utmost protection to the interests of respondent Bank nor of the vigorous defense of his actuations as such, which if given full credence, would erase the slightest doubt as to his competence and proficiency. For as above note, the decisive issue is the confidential character of petitioner’s position, which negates reliance on the removal-for-cause guarantee of the Constitution. We thus leave open for future determination. When and if such a litigation arises, case involving the other vice-presidents of the respondent Bank, where it would appear the overriding factor in their selection is not that degree of the utmost confidence reposed in a lawyer but their technical skills in the performance of the duties entrusted to them. WHEREFORE, this petition for certiorari, prohibition and quo warranto is dismissed. Without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Teehankee, Barredo and Villamor, JJ., concur. Dizon and Zaldivar, JJ., did not take part. Makalintal, J., concurs in the result. Castro, 7., is on leave.

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Endnotes:

1. Art. XII, Sec. 4 of the Constitution provides: "No officer or employee in the Civil Service shall be removed or suspended except for cause."cralaw virtua1aw library 2. Resolution No. 1053. 3. Answer, II, par. 2. 4. Ibid, III, par. 9. 5. De los Santos v. Mallare, 87 Phil. 289 (1950). This formulation is followed in Arrieta v. Bellos, L-17162, Oct. 31, 1964, 12 SCRA 296; Corpus v. Cuaderno, Sr., L-23721, Mar. 31, 1965, 13 SCRA 591; Hernandez v. Villegas, L-17287, June 30, 1965, 14 SCRA 544; Cariño v. Agricultural Credit and Cooperative Financing Adm., L-19808, Sept. 29, 1966, 18 SCRA 183; Piñero v. Hechanova, L-22562, Oct. 22, 1966, 18 SCRA 417; Ingles v. Mutuc, L-20390, Nov. 29, 1968, 26 SCRA 171. 6. Ingles v. Mutuc, L-20390, Nov. 29, 1968, 26 SCRA 171 cited with approval in Ramos v. Romualdez, L-27946, April 30, 1970. 7. 84 Phil. 740 (1949). 8. L-20390, Nov. 29, 1968, 26 SCRA 171. 9. Petitioner in his memorandum cites the following decisions promulgated by us: Lacson v. Romero, 84 Phil. 740 (1949); De los Santos v. Mallare, 87 Phil. 289 (1950); Jener v. Borra, 93 Phil. 506 (1953); Rodriguez v. Del Rosario, 93 Phil. 1070 (1953); Miclat v. Ganaden, 108 Phil. 439 (1960); Garcia v. Lejano, L-12230, Aug. 6, 1960; Board of Directors v. Alandy, L-15391, Oct. 31, 1960; Hernandez v. Villegas, L-17287, June 30, 1965, 14 SCRA 544. 10. L-23721, March 31, 1965, 13 SCRA 591. 11. Piñero v. Hechanova, L-22562, Oct. 22, 1966, 18 SCRA 417 and Ferrer v. Hechanova, L24418, January 25, 1967, 19 SCRA 105.

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EN BANC [G.R. No. 81954. August 8, 1989.] CESAR Z. DARIO, Petitioner, v. HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON. CATALINO MACARAIG, JR., in their respective capacities as Commissioner of Customs, Secretary of Finance, and Executive Secretary, Respondents. [G.R. No. 81967 August 8, 1989] VICENTE A. FERIA, JR., Petitioner, v. HON. SALVADOR M. MISON, HON. VICENTE JAYME, and HON. CATALINO MACARAIG, JR., in their respective capacities as Commissioner of Customs, Secretary of Finance, and Executive Secretary, Respondents. [G.R. No. 82023 August 8, 1989] ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU, DENNIS A. AZARRAGA, RENATO DE JESUS, NICASIO C. GAMBOA, CORAZON RALLOS NIEVES, FELICITACION R. GELUZ, LEODEGARIO H. FLORESCA, SUBAER PACASUM, ZENAIDA LANARIA, JOSE B. ORTIZ, GLICERIO R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS, FERMIN RODRIGUEZ, DALISAY BAUTISTA, LEONARDO JOSE, ALBERTO LONTOK, PORFIRIO TABINO, JOSE BARREDO, ROBERTO ARNALDO, ESTER TAN, PEDRO BAKAL, ROSARIO DAVID, RODOLFO AFUANG, LORENZO CATRE, LEONCIA CATRE, ROBERTO ABADA, Petitioners, v. COMMISSIONER SALVADOR M. MISON, COMMISSIONER, BUREAU OF CUSTOMS, Respondent. [G.R. No. 83737. August 8, 1989] BENEDICTO L. AMASA and WILLIAM S. DIONISIO, Petitioners, v. PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service Commission and SALVADOR MISON, in his capacity as Commissioner of the Bureau of Customs, Respondents. [G.R. No. 85310. August 8, 1989.] SALVADOR M. MISON, in his capacity as Commissioner of Customs, Petitioner, v. CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C., ABADIANO, JOSE P., ABCEDE, NEMECIO C., ABIOG, ELY F., ABLAZA, AURORA M., AGBAYANI, NELSON I., AGRES, ANICETO, AGUILAR, FLOR, AGUILUCHO, MA. TERESA R., AGUSTIN, BONIFACIO T., ALANO, ALEX P., ALBA, MAXIMO F. JR., ALBANO, ROBERT B., ALCANTARA, JOSE G., ALMARIO, RODOLFO F., ALVEZ, ROMUALDO R., AMISTAD, RUDY M., AMOS, FRANCIS F., ANDRES, RODRIGO V., ANGELES, RICARDO S., ANOLIN, MILAGROS H., AQUINO, PASCASIO E., ARABE, MELINDA M., ARCANGEL, AGUSTIN S., JR., ARPON, ULPIANO U., JR., ARREZA, ARTEMIO M., JR., ARROJO, ANTONIO P., ARVISU, ALEXANDER S., ASCAÑO, ANTONIO T., ASLAHON, JULAHON P., ASUNCION, VICTOR R., ATANGAN, LORNA S., ATIENZA, ALEXANDER R., BACAL, URSULINO C., BAÑAGA, MARLOWE, Z., BANTA, ALBERTO T., BARREDO, JOSE B., BARROS, VICTOR C., BARTOLOME, FELIPE A., BAYSAC, REYNALDO S., BELENO, ANTONIO B., BERNARDO, ROMEO D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO,

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VICTOR M., BULEG, BALILIS R., CALNEA, MERCEDES M., CALVO, HONESTO G., CAMACHO, CARLOS V., CAMPOS, RODOLFO C., CAPULONG, RODRIGO G., CARINGAL, GRACIA Z., CARLOS, LORENZO B., CARRANTO, FIDEL U., CARUNGCONG, ALFREDO M., CASTRO, PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL B., CENIZAL, JOSEFINA F., CINCO, LUISITO, CONDE, JOSE C., JR., CORCUERA, FIDEL S., CORNETA, VICENTE S., CORONADO, RICARDO S., CRUZ, EDUARDO S., CRUZ EDILBERTO A., CRUZ, EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO, RODOLFO M., DABON, NORMA M., DALINDIN, EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A., DAZO, GODOFREDO L., DE CASTRO, LEOPAPA, DE GUZMAN, ANTONIO A., DE GUZMAN, RENATO E., DE LA CRUZ, AMADO A., JR., DE LA CRUZ, FRANCISCO C., DE LA PENA, LEONARDO, DEL CAMPO, ORLANDO, DEL RIO, MAMERTO P., JR., DEMESA, WILHELMINA T., DIMAKUTA, SALIC L., DIZON, FELICITAS A., DOCTOR, HEIDY M., DOLAR, GLICERIO R., DOMINGO, NICANOR J., DOMINGO, PERFECTO V., JR., DUAY, JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO, LEONARDO A., ESCUYOS, MANUEL M., JR., ESMERIA, ANTONIO E., ESPALDON, MA. LOURDES H., ESPINA, FRANCO A., ESTURCO, RODOLFO C., EVANGELINO, FERMIN I., FELIX, ERNESTO G., FERNANDEZ, ANDREW M., FERRAREN, ANTONIO C., FERRERA, WENCESLAO A., FRANCISCO, PELAGIO S., JR., FUENTES, RUDY L., GAGALANG, RENATO V., GALANG, EDGARDO R., GAMBOA, ANTONIO C., GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA, EDNA V., CARCIA, JUAN L., GAVIOLA, LILIAN V., GEMPARO, SEGUNDINA G., GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R., GREGORIO, LAURO P., GUARTICO, AMMON H., GUIANG, MYRNA N., GUINTO, DELFIN C., HERNANDEZ, LUCAS A., HONRALES, LORETO N., HUERTO, LEOPOLDO H., HULAR, LANNYROSS E., IBAÑEZ, ESTER C., ILAGAN, HONORATO C., INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL, HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR L., JAVIER, ROBERTO S., JAVIER, WILLIAM R., JOVEN, MEMIA A., JULIAN, REYNALDO V., JUMAMOY, ABUNDIO A., JUMAQUIAO, DOMINGO F., KAINDOY, PASCUAL B., JR., KOH, NANIE G., LABILLES, ERNESTO S., LABRADOR, WILFREDO M., LAGA, BIENVENIDO M., LAGLEVA, PACIFICO Z., LAGMAN, EVANGELINE G., LAMPONG, WILFREDO G., LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE, REYNALDO A., LICARTE, EVARISTO R., LIPIO, VICTOR O., LITTAUA, FRANKLIN Z., LOPEZ, MELENCIO L., LUMBA, OLIVIA R., MACAISA, BENITO T., MACAISA, ERLINDA C., MAGAT, ELPIDIO, MAGLAYA, FERNANDO P., MALABANAN, ALFREDO C., MALIBIRAN, ROSITA D., MALIJAN, LAZARO V., MALLI, JAVIER M., MANAHAN, RAMON S., MANUEL, ELPIDIO R., MARAVILLA, GIL B., MARCELO, GIL C., MARIÑAS, RODOLFO V., MAROKET, JESUS C., MARTIN, NEMENCIO A., MARTINEZ, ROMEO M., MARTINEZ, ROSELINA M., MATIBAG, ANGELINA G., MATUGAS, ERNESTO T., MATUGAS, FRANCISCO T., MAYUGA, PORTIA E., MEDINA, NESTOR M., MEDINA, ROLANDO S., MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY M., MIRAVALLES, ANASTACIA L., MONFORTE, EUGENIO, JR., G., MONTANO, ERNESTO F., MONTERO, JUAN M. III., MORALDE, ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES, NESTOR P., MORALES, SHIRLEY S., MUNAR, JUANITA L., MUÑOZ, VICENTE R., MURILLO, MANUEL M., NACION, PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO B., NAVARRO, HENRY L., NEJAL, FREDRICK E., NICOLAS, REYNALDO S., NIEVES, RUFINO A., OLAIVAR, SEBASTIAN T., OLEGARIO, LEO Q., ORTEGA, ARLENE R., ORTEGA, JESUS R., OSORIO, ABNER S., PAPIO, FLORENTINO T. II, PASCUA, ARNULFO A., PASTOR, ROSARIO, PELAYO, ROSARIO L., PEÑA, AIDA C., PEREZ, ESPERIDION B., PEREZ, JESUS BAYANI M., PRE, ISIDRO A., PRUDENCIADO, EULOGIA S., PUNZALAN, LAMBERTO N., PURA, ARNOLD T., QUINONES, EDGARDO I., QUINTOS, AMADEO C.,

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JR., QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAÑADA, RODRIGO C., RARAS, ANTONIO A., RAVAL, VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F., REYES, LIBERATO R., REYES, MANUEL E., REYES, NORMA Z., REYES, TELESFORO F., RIVERA, ROSITA L., ROCES, ROBERTO V., ROQUE, TERESITA S., ROSANES, MARILOU M., ROSETE, ADAN I., RUANTO, REY CRISTO C., JR., SABLADA, PASCASIO G., SALAZAR SILVERIA S., SALAZAR, VICTORIA A., SALIMBACOD, PERLITA C., SALMINGO, LOURDES M., SANTIAGO, EMELITA B., SATINA, PORFIRIO C., SEKITO, COSME B., JR., SIMON, RAMON P., SINGSON, MELECIO C., SORIANO, ANGELO L., SORIANO, MAGDALENA R., SUMULONG, ISIDRO L., JR., SUNICO, ABELARDO T., TABIJE, EMMA B., TAN, RUDY GOROSPE, TAN, ESTER, S., TAN, JULITA S., TECSON, BEATRIZ B., TOLENTINO, BENIGNO A., TURINGAN, ENRICO T., JR., UMPA, ALI A., VALIC, LUCIO E., VASQUEZ, NICANOR B., VELARDE, EDGARDO C., VERA, AVELINO A., VERAME, OSCAR E., VIADO, LILIAN T., VIERNES, NAPOLEON K., VILLALON, DENNIS A., VILLAR, LUZ L., VILLALUZ, EMELITO V., ZATA, ANGEL A., JR., ACHARON, CRISTETO, ALBA, RENATO B., AMON, JULITA C., AUSTRIA, ERNESTO C., CALO, RAYMUNDO M., CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C., DONATO, ESTELITA P., DONATO, FELIPE S., FLORES, PEDRITO S., GALAROSA, RENATO, MALAWI, MAUYAG, MONTENEGRO, FRANCISCO M., OMEGA, PETRONILO T., SANTOS, GUILLERMO F., TEMPLO, CELSO, VALDERAMA, JAIME B., and VALDEZ, NORA M., Respondents. [G.R. No. 85335. August 8, 1989.] FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS, MA. J. ANGELINA G. MATIBAG, LEODEGARDIO H. FLORESCA, LEONARDO A. DELA PEÑA, ABELARDO T. SUNICO, MELENCIO L. LOPEZ, NEMENCIO A. MARTIN, RUDY M. AMISTAD, ERNESTO T. MATUGAS, SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS ANOLIN, JOSE B. ORTIZ, ARTEMIO ARREZA, JR., GILVERTO M. GARCIA, ANTONIO A. RARAS, FLORDELINA B. GOBENCIONG, ANICETO AGRES, EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY F. ABIOG, RODRIGO C. RAÑADA, LAURO GREGORIO, ALBERTO I. GAN, EDGARDO GALANG, RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL ESCUYOS, JR., ANTONIO B. BELENO, ELPIO R. MANUEL, AUXILIADOR C. BOHOL, LEONARDO ELEVAZO, VICENTE S. CORNETA, Petitioners, v. COM. SALVADOR M. MISON/BUREAU OF CUSTOMS and the CIVIL SERVICE COMMISSION, Respondents. [G.R. No. 86241. August 8, 1989.] SALVADOR M. MISON, in his capacity as Commissioner of Customs, Petitioner, v. CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P. ARABE, BERNARDO S. QUINTONG, GREGORIO P. REYES, and ROMULO C. BADILLO, Respondents. SYLLABUS MELENCIO-HERRERA, J., dissenting opinion:chanrob1es virtual 1aw library 1. ADMINISTRATIVE LAW; CIVIL SERVICE ACT; REMOVAL OR SUSPENSION OF CIVIL SERVICE OFFICER MUST BE FOR CAUSE; "FOR CAUSE" CONSTRUED. — The canon for the removal or suspension of a civil service officer or employee is that it must be FOR CAUSE. That means "a

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guarantee of both procedural and substantive due process. Basically, procedural due process would require that suspension or dismissal come only after notice and hearing. Substantive due process would require that suspension or dismissal be ‘for cause’. 2. ID.; ID.; ID.; GUARANTEE ENSHRINED IN THE CONSTITUTION. — The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which states that "No officer or employee of the civil service shall be removed or suspended except FOR CAUSE provided by law."cralaw virtua1aw library 3. REMEDIAL LAW; SUPREME COURT; JUDGMENT; OBITER DICTUM, DEFINED. — An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the court concerning a question which was not directly before it (In re Hess, 23 A. 2d. 298, 301, 20 N.J. Misc. 12). It is language unnecessary to a decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not embody the resolution or determination of the court, and is made without argument or full consideration of the point (Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an expression of opinion by the court or judge on a collateral question not directly involved, (Crescent Ring Co. v. Traveler’s Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision (Du Bell v. Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167). 4. ID.; ID.; ID.; RESOLUTION OF THE ULTIMATE ISSUES, NOT AN OBITER. — The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the period mandated by Proclamation No. 3, and the validity of EO 127, cannot be said to be mere "obiter." They were ultimate issues directly before the Court, expressly decided in the course of the consideration of the case, so that any resolution thereon must be considered as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F.2d 687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi Yamada 4 F. (2d) 455). Such resolution would not lose its value as a precedent just because the disposition of the case was also made on some other ground. 5. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 127; SEPARATION FROM OFFICE; RIGHT TO BE INFORMED OF GROUND OF SEPARATION UNDER EXECUTIVE ORDER NO. 17, DISPENSED WITH. — The right granted by EO 17 to an employee to be informed of the ground for his separation must be deemed to have been revoked by the repealing clause of EO 127 (Section 67) providing that "all laws, ordinances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed and modified accordingly."cralaw virtua1aw library 6. ID.; CIVIL SERVICE ACT; REMOVAL FROM CAREER SERVICE; TYPES OF REORGANIZATION. — The standards laid down are the "traditional" criteria for removal of employees from the career service, e.g. valid cause, due notice and hearing, abolition of, or redundancy of offices. Proclamation No. 3, on the other hand, effectuates the "progressive" type of reorganization dictated by the exigencies of the historical and political upheaval at the time. The "traditional" type is limited in scope. It is concerned with the individual approach where the particular employee involved is charged administratively and where the requisites of notice and hearing have to be observed. The "progressive" kind of reorganization, on the other hand, is the collective way. It is wider in scope, and is the reorganization contemplated under Section 16. 7. ID.; ID.; ID.; RIGHTS AVAILABLE TO A REORGANIZED EMPLOYEE. — A reorganized employee is not without rights. His right lies in his past services, the entitlement to which

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must be provided for by law. EO 127 provides for the same in its Section 59, and so does SECTION 16 when the latter specified that career civil service employees separated from the service not for cause: "shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, has been accepted."cralaw virtua1aw library 8. ID.; ID.; RIGHT TO AN OFFICE OR EMPLOYMENT WITH GOVERNMENT, NOT A VESTED RIGHT. — The right to an office or to employment with government or any of its agencies is not a vested property right, and removal therefrom will not support the question of due process" (Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service employee does not have a constitutionally protected right to his position, which position is in the nature of a public office, political in character and held by way of grant or privilege extended by government; generally he has been held to have no property right or vested interest to which due process guaranties extend (See Taylor v. Beckham 178 U. S. 548, 44 L Ed. 1187; Angilly v. US (CA2 NY) 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY State Civil Service Com., 21 Misc 2d 1034, 194 NYS 2d 89). DECISION SARMIENTO, J.: The Court writes finis to this controversy that has raged bitterly for the past several months. It does so out of a legitimate presentiment of more suits reaching it as a consequence of the government reorganization and the instability it has wrought on the performance and efficiency of the bureaucracy. The Court is apprehensive that unless the final word is given and the ground rules are settled, the issue will fester, and likely foment a constitutional crisis for the nation, itself beset with grave and serious problems.chanrobles virtual lawlibrary The facts are not in dispute. On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION. Among other things, Proclamation No. 3 provided:chanrob1es virtual 1aw library SECTION 1. . . . The President shall give priority to measures to achieve the mandate of the people to:chanrob1es virtual 1aw library (a) Completely reorganize the government, eradicate unjust and oppressive structures, and all

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iniquitous vestiges of the previous regime; 1 Pursuant thereto, it was also provided:chanrob1es virtual 1aw library SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption. SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of the successors, if such is made within a period of one year from February 25, 1986. SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder. SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its funds and properties shall be transferred to the office or body to which its powers, functions and responsibilities substantially pertain. 2 Actually, the reorganization process started as early as February 25, 1986, when the President, in her first act in office, called upon "all appointive public officials to submit their courtesy resignation(s) beginning with the members of the Supreme Court." 3 Later on, she abolished the Batasang Pambansa 4 and the positions of Prime Minister and Cabinet 5 under the 1973 Constitution. Since then, the President has issued a number of executive orders and directives reorganizing various other government offices, a number of which, with respect to elected local officials, has been challenged in this Court, 6 and two of which, with respect to appointed functionaries, have likewise been questioned herein. 7 On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization had generated, and prescribed as "grounds for the separation/replacement of personnel," the following:chanrob1es virtual 1aw library SECTION 3. The following shall be the grounds for separation/replacement of personnel:chanrob1es virtual 1aw library 1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;chanrobles virtual lawlibrary 2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned; 3) Gross incompetence or inefficiency in the discharge of functions;

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4) Misuse of public office for partisan political purposes; 5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service. 8 On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE." 9 Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs 10 and prescribed a new staffing pattern therefor. Three days later, on February 2, 1987, 11 the Filipino people adopted the new Constitution. On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," 12 prescribing the procedure in personnel placement. It also provided:chanrob1es virtual 1aw library 1. By February 28, 1988, all employees covered by Executive Order 127 and the grace period extended to the Bureau of Customs by the President of the Philippines on reorganization shall be:chanrob1es virtual 1aw library a) informed of their re-appointment, or b) offered another position in the same department or agency, or c) informed of their termination. 13 On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged with adjudicating appeals from removals under the above Memorandum. 14 On January 26, 1988, Commissioner Mison addressed several notices to various Customs officials, in the tenor as follows:chanrob1es virtual 1aw library Sir:chanrob1es virtual 1aw library Please be informed that the Bureau is now in the process of implementing the Reorganization Program under Executive Order No. 127. Pursuant to Section 59 of the same Executive Order, all officers and employees of the Department of Finance, or the Bureau of Customs in particular, shall continue to perform their respective duties and responsibilities in a hold-over capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not reappointed, shall be deemed separated from the service.chanrobles.com:cralaw:red In this connection, we regret to inform you that your services are hereby terminated as of February 28, 1988. Subject to the normal clearances, you may receive the retirement benefits to which you may be entitled under existing laws, rules and regulations. In the meantime, your name will be included in the consolidated list compiled by the Civil Service Commission so that you may be given priority for future employment with the Government as the need arises.

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Sincerely yours, (Sgd) SALVADOR M. MISON Commissioner 15 As far as the records will yield, the following were recipients of these notices:chanrob1es virtual 1aw library 1. CESAR DARIO 30. LEONCIA CATRE 2. VICENTE FERIA, JR. 31. ROBERTO ABADA 3. ADOLFO CASARENO 32. ABACA SISINIO T. 4. PACIFICO LAGLEVA 33. ABAD, ROGELIO C. 5. JULIAN C. ESPIRITU 34. ABADIANO, JOSE P. 6. DENNIS A. AZARRAGA 35. ABCEDE, NEMECIO C. 7. RENATO DE JESUS 36. ABIOG, ELY F. 8. NICASIO C. GAMBOA 37. ABLAZA, AURORA M. 9. CORAZON RALLOS NIEVES 38. AGBAYANI, NELSON I. 10. FELICITACION R. GELUZ 39. AGRES, ANICETO. 11. LEODEGARIO H. FLORESCA 40. AGUILAR, FLOR 12. SUBAER PACASUM 41. AGUILUCHO, MA. TERESA R. 13. ZENAIDA LANARIA 42. AGUSTIN, BONIFACIO T. 14. JOSE B. ORTIZ 43. ALANO, ALEX P. 15. GLICERIO R. DOLAR 44. ALBA, MAXIMO F. JR. 16. CORNELIO NAPA 45. ALBANO ROBERT B. 17. PABLO B. SANTOS 46. ALCANTARA, JOSE G. 18. FERMIN RODRIGUEZ 47. ALMARIO, RODOLFO F. 19. DALISAY BAUTISTA 48. ALVEZ, ROMUALDO R. 20. LEONARDO JOSE 49. AMISTAD, RUDY M.

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21. ALBERTO LONTOK 50. AMOS, FRANCIS F. 22. PORFIRIO TABINO 51. ANDRES, RODRIGO V. 23. JOSE BARREDO 52. ANGELES, RICARDO S. 24. ROBERTO ARNALDO 53. ANOLIN, MILAGROS H. 25. ESTER TAN 54. AQUINO, PASCASIO E. L. 26. PEDRO BAKAL 55. ARABE, MELINDA M. 27. ROSARIO DAVID 56. ARCANGEL, AGUSTIN S., JR. 28. RODOLFO AFUANG 58. ARREZA, ARTEMIO M., JR. 29. LORENZO CATRE 59. ARROJO, ANTONIO P. 60. ARVISU, ALEXANDER S. 107. DE GUZMAN, ANTONIO A. 61. ASCAÑO, ANTONIO T. 108. DE GUZMAN, RENATO E. 62. ASLAHON, JULAHON P. 109. GAN, ALBERTO R. 63. ASUNCION, VICTOR. 110. DELA CRUZ, FRANCISCO C. 64. ATANGAN, LORNA S. 111. DE LA PEÑA, LEONARDO 65. ATIENZA, ALEXANDER. 112. DEL CAMPO, ORLANDO 66. BACAL, URSULINO C. 113. DEL RIO, MAMERTO P., JR. 67. BAÑAGA, MARLOWE Z. 114. DE MESA, WILHELMINA T. 68. BANTA, ALBERTO T. 115. DIMAKUTA, SALIC L. 69. BARROS, VICTOR C. 116. DIZON, FELICITAS A. 70. BARTOLOME, FELIPE A. 117. DOCTOR, HEIDY M. 71. BAYSAC, REYNALDO S. 118. DOMINGO, NICANOR J. 72. BELENO, ANTONIO B. 119. DOMINGO, PERFECTO V., JR. 73. BERNARDO, ROMEO D. 120. DUAY, JUANA G. 74. BERNAS, MARCIANO S. 121. DYSANGCO, RENATO F.

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75. BOHOL, AUXILIADOR G. 122. EDILLOR, ALFREDO P. 76. BRAVO, VICTOR M. 123. ELEVAZO, LEONARDO A. 77. BULEG, BALILIS R. 124. ESCUYOS, MANUEL M., JR. 78. CALNEA, MERCEDES M. 125. ESMERIA, ANTONIO E. 79. CALVO, HONESTO G. 126. ESPALDON, MA. LOURDES H. 80. CAMACHO, CARLOS V. 127. ESPINA, FRANCO A. 81. CAMPOS, RODOLFO C. 128. ESTURCO, RODOLFO C. 82. CAPULONG, RODRIGO G. 129. EVANGELINO, FERMIN I. 83. CARINGAL, GRACIA Z. 130. FELIX, ERNESTO G. 84. CARLOS, LORENZO B. 131. FERNANDEZ, ANDREW M. 85. CARRANTO, FIDEL U. 132. FERRAREN, ANTONIO C. 86. CARUNGCONG, ALFREDO M. 133. FERRERA, WENCESLAO A. 87. CASTRO, PATRICIA J. 134. FRANCISCO, PELAGIO S., JR. 88. CATELO, ROGELIO B. 135. FUENTES, RUDY L. 89. CATURLA, MANUEL B. 136. GAGALANG, RENATO V. 90. CENIZAL, JOSEFINA F. 137. GALANG, EDGARDO R. 91. CINCO, LUISITO 138. GAMBOA, ANTONIO C. 92. CONDE, JOSE C., JR. 139. GAN, ALBERTO R. 93. CORCUERA, FIDEL S. 140. GARCIA, GILBERT M. 94. CORNETA, VICENTE S. 141. GARCIA, EDNA V. 95. CORONADO, RICARDO S. 142. GARCIA, JUAN L. 98. CRUZ, EDUARDO S. 143. GAVIOLA, LILIAN V. 97. CRUZ, EDILBERTO A 144. GEMPARO, SEGUNDINA G. 98. CRUZ, EFIGENIA B. 145. GOBENCIONG, FLORDELIZ B. 99. CRUZADO, MARCIAL C. 146. GRATE, FREDERICK R.

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100. CUSTUDIO, RODOLFO M. 147. GREGORIO, LAURO P. 101. DABON, NORMA M. 148. GUARTICO, AMMON H. 102. DALINDIN, EDNA MAE D. 149. GUIANG, MYRNA N. 103. DANDAL, EDEN F. 150. GUINTO, DELFIN C. 104. DATUHARON, SATA A. 151. HERNANDEZ, LUCAS A. 105. DAZO, GODOFREDO L. 152. HONRALES, LORETO N. 106. DE CASTRO, LEOPAPA 153. HUERTO, LEOPOLDO H. 154. HULAR, LANNYROSS E. 201. MATUGAS, ERNESTO T. 155. IBAÑEZ, ESTER C. 202. MATUGAS, FRANCISCO T. 156. ILAGAN, HONORATO C. 203. MAYUGA, PORTIA E. 157. INFANTE, REYNALDO C. 204. MEDINA, NESTOR M. 158. ISAIS, RAY C. 205. MEDINA, ROLANDO S. 159. ISMAEL, HADJI AKRAM B. 206. MENDAVIA AVELINO I. 160. JANOLO, VIRGILIO M. 207. MENDOZA, POTENCIANO G. 161. JAVIER, AMADOR L. 208. MIL, RAY M. 162. JAVIER, ROBERTO S. 209. MIRAVALLES, ANASTACIA L. 163. JAVIER, WILLIAM R. 210. MONFORTE, EUGENIO, JR. G. 164. JOVEN, MEMIA A. 211. MONTANO, ERNESTO F. 165. JULIAN, REYNALDO V. 212. MONTERO, JUAN M. III 166. JUMAMOY, ABUNDIO A. 213. MORALDE, ESMERALDO B., JR. 167. JUMAQUIAO, DOMINGO F. 214. MORALES, CONCHITA D.L. 163. KAINDOY, PASCUAL B., JR. 215. MORALES, NESTOR P. 169. KOH, NANIE G. 216. MORALES, SHIRLEY S. 170. LABILLES, ERNESTO S. 217. MUNAR, JUANITA L.

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171. LABRADOR, WILFREDO M. 213. MUÑOZ, VICENTE R. 172. LAGA, BIENVENIDO M. 219. MURILLO, MANUEL M. 173. LAGMAN, EVANGELINE G. 220. NACION, PEDRO R. 174. LAMPONG, WILFREDO G. 221. NAGAL, HENRY N. 175. LANDICHO, RESTITUTO A. 222: NAVARRO, HENRY L. 176. LAPITAN, CAMILO M. 223. NEJAL, FREDRICK E. 177. LAURENTE, REYNALDO A. 224. NICOLAS, REYNALDO S. 178. LICARTE, EVARISTO R. 225. NIEVES, RUFINO A. 179. LIPIO, VICTOR O. 226. OLAIVAR, SEBASTIAN T. 180. LITTAUA, FRANKLIN Z. 227. OLEGARIO, LEO Q. 181. LOPEZ, MELENCIO L. 228. ORTEGA ARLENE R. 182. LUMBA OLIVIA R. 229. ORTEGA, JESUS R. 183. MACAISA BENITO T. 230. OSORIO, ABNER S. 184. MACAISA ERLINDA C. 231. PAPIO, FLORENTINO T. II 135. MAGAT, ELPIDIO 232. PASCUA, ARNULFO A. 136. MAGLAYA, FERNANDO P. 233. PASTOR, ROSARIO 137. MALIBIRAN, ALFREDO C. 234. PELAYO, ROSARIO L. 138. MALIBIRAN, ROSITA D. 235. PEÑA, AIDA C. 189. MALIJAN, LAZARO V. 236. PEREZ, ESPERIDION B. 190. MALLI, JAVIER M. 237. PEREZ, JESUS BAYANI M. 191. MANAHAN, RAMON S. 233. PEREZ, ISIDRO A. 192. MANUEL, ELPIDIO R. 239. PRUDENCIADO, EULOGIA S. 193. MARAVILLIA, GIL B. 240. PUNZALAN, LAMBERTO N. 194. MARCELO, GIL C. 241. PURA, ARNOLD T. 195. MARIÑAS, RODOLFO V. 242. QUINONES, EDGARDO I.

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196. MAROKET, JESUS C. 243. QUINTOS, AMADEO C., JR. 197. MARTIN, NEMENCIO A. 244. QUIRAY, NICOLAS C. 198. MARTINEZ, ROMEO M. 245. RAMIREZ, ROBERTO P. 199. MARTINEZ, ROSELINA M. 246. RANADA, RODRIGO C. 200. MATIBAG, ANGELINA G. 247. RARAS, ANTONIO A. 248. RAVAL, VIOLETA V. 280. TOLENTINO, BENIGNO A. 249. RAZAL, BETTY R. 281. TURINGAN, ENRICO T., JR. 250. REGALA, PONCE F. 282. UMPA, ALI A. 251. REYES, LIBERATO R. 283. VALIC, LUCIO E. 252. REYES, MANUEL E. 284. VASQUEZ, NICANOR B. 258. REYES, NORMA Z. 285. VELARDE, EDGARDO C. 254. REYES, TELESFORO F. 286. VERA, AVELINO A. 255. RIVERA, ROSITA L. 287. VERAME, OSCAR E. 256. ROCES, ROBERTO V. 288. VIADO, LILLIAN T. 257. ROQUE, TERESITA S. 289. VIERNES, NAPOLEON K. 258. ROSANES, MARILOU M. 290. VILLALON, DENNIS A. 259. ROSETE, ADAN I. 291. VILLAR, LUZ L. 260. RUANTO, REY CRISTO C., JR. 292. VILLALUZ, EMELITO V. 261. SABLADA, PASCASIO G. 293. ZATA, ANGEL A, JR. 262. SALAZAR, SILVERIA S. 294. ACHARON, CRISTETO 263. SALAZAR, VICTORIA A. 295. ALBA, RENATO B. 264. SALIMBACOD, PERLITA C. 296. AMON, JULITA C. 265. SALMINGO, LOURDES M. 297. AUSTRIA, ERNESTO C. 266. SANTIAGO, EMELITA B. 293. CALO, RAYMUNDO M.

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267. SATINA, PORFIRIO C. 299. CENTENO, BENJAMIN R. 268. SEKITO, COSME B., JR. 300. DONATO, ESTELITA P. 269. SIMON, RAMON P. 301. DONATO, FELIPE S. 270. SINGSON, MELECIO C. 302. FLORES, PEDRITO S. 271. SORIANO, ANGELO L. 303. GALAROSA, RENATO 272. SORIANO, MAGDALENA R. 304. MALAWI, MAUYAG 273. SUMULONG, ISIDORO L., JR. 305. MONTENEGRO, FRANCISCO M. 274. SUNICO, ABELARDO T. 306. OMEGA, PETRONILO T. 275. TABIJE, EMMA B. 307. SANTOS, GUILLERMO F. 276. TAN, RUDY GOROSPE 308. TEMPLO, CELSO 277. TAN, ESTER S. 309. VALDERAMA, JAIME B. 273. TAN, JULITA S. 310. VALDEZ, NORA M. 279. TECSON, BEATRIZ B. Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano, Pacifico Lagleva, Julian C. Espiritu, Dennis A. Azarraga, Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz, Messrs. Leodegario H. Floresca, Subaer Pacasum, Ms. Zenaida Lanaria, Mr. Jose B. Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Dalisay Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio Tabino, Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre, Ms. Leoncia Catre, and Roberto Abada, are the petitioners in G.R. No. 82023; the last 279 16 individuals mentioned are the private respondents in G.R. No. 85310.chanrobles.com : virtual law library As far as the records will likewise reveal, 17 a total of 394 officials and employees of the Bureau of Customs were given individual notices of separation. A number supposedly sought reinstatement with the Reorganization Appeals Board while others went to the Civil Service Commission. The first thirty one mentioned above came directly to this Court. On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310, the dispositive portion of which reads as follows:chanrob1es virtual 1aw library WHEREFORE, it is hereby ordered that:chanrob1es virtual 1aw library 1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the

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Bureau of Customs without loss of seniority rights; 2. Appellants be paid their back salaries reckoned from the dates of their illegal termination based on the rates under the approved new staffing pattern but not lower than their former salaries. This action of the Commission should not, however, be interpreted as an exoneration of the appellants from any accusation of wrongdoing and, therefore, their reappointments are without prejudice to:chanrob1es virtual 1aw library 1. Proceeding with investigation of appellants with pending administrative cases, and where investigations have been finished, to promptly render the appropriate decisions;chanrobles virtual lawlibrary 2. The filing of appropriate administrative complaints against appellants with derogatory reports or information if evidence so warrants. SO ORDERED. 18 On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration. Acting on the motion, the Civil Service Commission, on September 20, 1988, denied reconsideration. 19 On October 20, 1988, Commissioner Mison instituted certiorari proceedings with this Court, docketed, as above-stated, as G.R. No. 85310 of this Court. On November 16, 1988, the Civil Service Commission further disposed the appeal (from the resolution of the Reorganization Appeals Board) of five more employees, holding as follows:chanrob1es virtual 1aw library WHEREFORE, it is hereby ordered that:chanrob1es virtual 1aw library 1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customs without loss of seniority rights; and 2. Appellants be paid their back salaries to be reckoned from the date of their illegal termination based on the rates under the approved new staffing pattern but not lower than their former salaries. This action of the Commission should not, however, be interpreted as an exoneration of the herein appellants from any accusation of any wrongdoing and therefore, their reappointments are without prejudice to:chanrob1es virtual 1aw library 1. Proceeding with investigation of appellants with pending administrative cases, if any, and where investigations have been finished, to promptly, render the appropriate decisions; and 2. The filing of appropriate administrative complaints against appellant with derogatory reports or information, if any, and if evidence so warrants.

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SO ORDERED. 20 On January 6, 1989, Commissioner Mison challenged the Civil Service Commission’s Resolution in this Court; his petition has been docketed herein as G.R. No. 86241. The employees ordered to be reinstated are Senen Dimaguila, Romeo Arabe, Bernardo Quintong, Gregorio Reyes, and Romulo Badillo. 21 On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," 22 was signed into law. Under Section 7, thereof:chanrob1es virtual 1aw library Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or agency concerned. 23 On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant to the ostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. The petition is docketed as G.R. No. 83737. On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its June 30, 1988 Resolution filed their own petition to compel the Commissioner of Customs to comply with the said Resolution. The petition is docketed as G.R. No. 85335.chanrobles lawlibrary : rednad On November 29, 1988, we resolved to consolidate all seven petitions. On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said hearing, the parties, represented by their counsels (a) retired Justice Ruperto Martin; (b) retired Justice Lino Patajo; (c) former Dean Froilan Bacungan; (d) Atty. Lester Escobar; (e) Atty. Faustino Tugade; and (f) Atty. Alexander Padilla, presented their arguments. Solicitor General Francisco Chavez argued on behalf of the Commissioner of Customs (except in G.R. 85335, in which he represented the Bureau of Customs and the Civil Service Commission). Former Senator Ambrosio Padilla also appeared and argued as amicus curiae. Thereafter, we resolved to require the parties to submit their respective memoranda which they did in due time. There is no question that the administration may validly carry out a government

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reorganization — insofar as these cases are concerned, the reorganization of the Bureau of Customs — by mandate not only of the Provisional Constitution, supra, but also of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-1987 revolutionary government. It should also be noted that under the present Constitution, there is a recognition, albeit implied, that a government reorganization may be legitimately undertaken, subject to certain conditions. 24 The Court understands that the parties are agreed on the validity of a reorganization per se, the only question being, as shall be later seen: What is the nature and extent of this government reorganization? The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue, 25 and other technical objections, for two reasons," [b]ecause of the demands of public interest, including the need for stability in the public service," 26 and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commission’s Resolution dated June 30, 1988 had attained a character of finality for failure of Commissioner Mison to apply for judicial review or ask for reconsideration seasonably under Presidential Decree No. 807, 27 or under Republic Act No. 6656, 28 or under the Constitution, 29 are likewise rejected. The records show that the Bureau of Customs had until July 15, 1988 to ask for reconsideration or come to this Court pursuant to Section 39 of Presidential Decree No. 807. The records likewise show that the Solicitor General filed a motion for reconsideration on July 15, 1988. 30 The Civil Service Commission issued its Resolution denying reconsideration on September 20, 1988; a copy of this Resolution was received by the Bureau on September 23, 1988. 31 Hence the Bureau had until October 23, 1988 to elevate the matter on certiorari to this Court. 32 Since the Bureau’s petition was filed on October 20, 1988, it was filed on time. We reject, finally, contentions that the Bureau’s petition (in G.R. 85310) raises no jurisdictional questions, and is therefore bereft of any basis as a petition for certiorari under Rule 65 of the Rules of Court. 33 We find that the questions raised in Commissioner Mison’s petition (in G.R. 85310) are, indeed, proper for certiorari, if by ‘jurisdictional questions" we mean questions having to do with "an indifferent disregard of the law, arbitrariness and caprice, or omission to weigh pertinent considerations, a decision arrived at without rational deliberation," 34 as distinguished from questions that require "digging into the merits and unearthing errors of judgment" 35 which is the office, on the other hand, of review under Rule 45 of the said Rules. What cannot be denied is the fact that the act of the Civil Service Commission of reinstating hundreds of Customs employees Commissioner Mison had separated, has implications not only on the entire reorganization process decreed no less than by the Provisional Constitution, but on the Philippine bureaucracy in general; these implications are of such a magnitude that it cannot be said that — assuming that the Civil Service Commission erred — the Commission committed a plain "error of judgment" that Aratuc says cannot be corrected by the extraordinary remedy of certiorari or any special civil action. We reaffirm the teaching of Aratuc — as regards recourse to this Court with respect to rulings of the Civil Service Commission — which is that judgments of the Commission may be brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court. In Aratuc, we declared:chanrob1es virtual 1aw library

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It is once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge of what it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court." And since instead of maintaining that provision intact, it ordained that the Commission’s actuations be instead "brought to the Supreme Court on certiorari’, We cannot insist that there was no intent to change the nature of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law. 36 We observe no fundamental difference between the Commission on Elections and the Civil Service Commission (or the Commission on Audit for that matter) in terms of the constitutional intent to leave the constitutional bodies alone in the enforcement of laws relative to elections, with respect to the former, and the civil service, with respect to the latter (or the audit of government accounts, with respect to the Commission on Audit). As the poll body is the "sole judge" 37 of all election cases, so is the Civil Service Commission the single arbiter of all 5 controversies pertaining to the civil service. It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari," 38 which, as Aratuc tells us, "technically connotes something less than saying that the same ‘shall be subject to review by the Supreme Court,’" 39 which in turn suggests an appeal by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.chanroblesvirtual|awlibrary While Republic Act No. 6656 states that judgments of the Commission are "final and executory" 40 and hence, unappealable, under Rule 65, certiorari precisely lies in the absence of an appeal. 41 Accordingly, we accept Commissioner Mison’s petition (G.R. No. 85310) which clearly charges the Civil Service Commission with grave abuse of discretion, a proper subject of certiorari, although it may not have so stated in explicit terms. As to charges that the said petition has been filed out of time, we reiterate that it has been filed seasonably. It is to be stressed that the Solicitor General had thirty days from September 23, 1988 (the date the Resolution, dated September 20, 1988, of the Civil Service Commission, denying reconsideration, was received) to commence the instant certiorari proceedings. As we stated, under the Constitution, an aggrieved party has thirty days within which to challenge "any decision, order, or ruling" 42 of the Commission. To say that the period should be counted from the Solicitor’s receipt of the main Resolution, dated June 30, 1988, is to say that he should not have asked for reconsideration. But to say that is to deny him the right to contest (by a motion for reconsideration) any ruling, other than the main decision, when, precisely, the Constitution gives him such a right. That is also to place him at a "no-win" situation because if he did not move for a reconsideration, he would have been faulted for demanding certiorari too early, under the general rule that a motion for

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reconsideration should preface a resort to a special civil action. 43 Hence, we must reckon the thirty-day period from receipt of the order of denial.chanroblesvirtuallawlibrary We come to the merits of these cases. G.R. Nos. 81954, 81967, 82023, and 85335:chanrob1es virtual 1aw library The Case for the Employees The petitioner in G.R. No. 81954, Cesar Dario, was one of the Deputy Commissioners of the Bureau of Customs until his relief on orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismissal, which he alleges was upon the authority of Section 59 of Executive Order No. 127, supra, hereinbelow reproduced as follows:chanrob1es virtual 1aw library SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution. The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from the service shall receive the retirement benefits to which they may be entitled under existing laws, rules and regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service, or the equivalent nearest fraction thereof favorable to them on the basis of highest salary received but in no case shall such payment exceed the equivalent of 12 months salary. No court or administrative body shall issue any writ of preliminary injunction or restraining order to enjoin the separation/replacement of any officer or employee effected under this Executive Order. 44 a provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally deemed to be an" [incumbent] whose [position] [is] not included therein or who [is] not reappointed" 45 to justify his separation from the service. He contends that neither the Executive Order (under the second paragraph of the section) nor the staffing pattern proposed by the Secretary of Finance 46 abolished the office of Deputy Commissioner of Customs, but, rather, increased it to three. 47 Nor can it be said, so he further maintains, that he had not been "reappointed" 48 (under the second paragraph of the section) because" [r]eappointment therein presupposes that the position to which it refers is a new one in lieu of that which has been abolished or although an existing one, has absorbed that which has been abolished." 49 He claims, finally, that under the Provisional Constitution, the power to dismiss public officials without cause ended on February 25, 1987, 50 and that thereafter, public officials enjoyed security of tenure under the provisions of the 1987 Constitution. 51

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Like Dario, Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the Bureau until his separation directed by Commissioner Mison. And like Dario, he claims that under the 1987 Constitution, he has acquired security of tenure and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 — during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," 52 the Commissioner of Customs has the power" [t]o appoint all Bureau personnel, except those appointed by the President," 53 and that his position, which is that of a Presidential appointee, is beyond the control of Commissioner Mison for purposes of reorganization. The petitioners in G.R. No. 82023, collectors and examiners in various ports of the Philippines, say, on the other hand, that the purpose of reorganization is to end corruption at the Bureau of Customs and that since there is no finding that they are guilty of corruption, they cannot be validly dismissed from the service.chanrobles law library The Case for Commissioner Mison In his comments, the Commissioner relies on this Court’s resolution in Jose v. Arroyo, 54 in which the following statement appears in the last paragraph thereof:chanrob1es virtual 1aw library The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil service employees security of tenure overlooks the provisions of Section 16, Article XVIII (Transitory Provisions) which explicitly authorize the removal of career civil service employees "not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution." By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of the Constitution, and career civil service employees may be separated from the service without cause as a result of such reorganization. 55 For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the deadline prescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution, specifically, the transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees’ argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria), in the sense that retention in the Bureau, under the Executive Order, depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered vacant." 57 The Solicitor General denies the applicability of Palma-Fernandez v. De la Paz 58 because that case supposedly involved a mere transfer and not a separation. He rejects, finally the force and effect of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which was meant to implement the Provisional Constitution, 59 had ceased to have force and effect upon the ratification of the 1987 Constitution, and that, under Executive Order No. 39, the dismissals contemplated were "for cause" while the separations now under question were "not

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for cause and were a result of government reorganization decreed by Executive Order No. 127. Anent Republic Act No. 6656, he expresses doubts on the constitutionality of the grant of retroactivity therein (as regards the reinforcement of security of tenure) since the new Constitution clearly allows reorganization after its effectivity.chanroblesvirtual|awlibrary G.R. Nos. 85310 and 86241 The Position of Commissioner Mison Commissioner’s twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution, dated June 30, 1988, reinstating the 265 customs employees above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and (3) the Resolution, dated November 16, 1988, reinstating five employees. The Commissioner’s arguments are as follows:chanrob1es virtual 1aw library 1. The ongoing government reorganization is in the nature of a "progressive" 60 reorganization "impelled by the need to overhaul the entire government bureaucracy" 61 following the people power revolution of 1986; 2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to deliberation, and selection of personnel for appointment under the new staffing pattern; 3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere holdover standing, "which means that all positions are declared vacant;" 62 4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987 Constitution; 5. Republic Act No. 6656 is of doubtful constitutionality. The Ruling of the Civil Service Commission The position of the Civil Service Commission is as follows:chanrob1es virtual 1aw library 1. Reorganizations occur where there has been a reduction in personnel or redundancy of functions; there is no showing that the reorganization in question has been carried out for either purpose — on the contrary, the dismissals now disputed were carried out by mere service of notices; 2. The current Customs reorganization has not been made according to Malacañang guidelines; information on file with the Commission shows that Commissioner Mison has been appointing unqualified personnel; 3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal removals;chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.

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The Court’s Ruling Reorganization, Fundamental Principles of . — I. The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:chanrob1es virtual 1aw library Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. 63 The Court considers the above provision critical for two reasons: (1) It is the only provision — insofar as it mentions removals not for cause — that would arguably support the challenged dismissals by mere notice, and (2) It is the single existing law on reorganization after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June 10, 1988. [Nota bene: Executive Orders No. 116 (covering the Ministry of Agriculture & Food), 117 (Ministry of Education, Culture & Sports), 119 (Health), 120 (Tourism), 123 (Social Welfare & Development), 124 (Public Works & Highways), 125 (Transportation & Communications), 126 (Labor & Employment), 127 (Finance), 128 (Science & Technology), 129 (Agrarian Reform), 131 (Natural Resources), 132 (Foreign Affairs), and 133 (Trade & Industry) were all promulgated on January 30, 1987, prior to the adoption of the Constitution on February 2, 1987]. 64 It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution:chanrob1es virtual 1aw library Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until the Congress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the President shall vacate their respective office(s) upon the appointment and qualification of their successors, if such appointment is made within a period of one year from the date of the inauguration of the Commonwealth of the Philippines. 65 Under Section 9, Article XVII, of the 1973 Charter:chanrob1es virtual 1aw library Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent

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President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors. 66 The Freedom Constitution is, as earlier seen, couched in similar language:chanrob1es virtual 1aw library SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. 67 Other than references to "reorganization following the ratification of this Constitution," there is no provision for "automatic" vacancies under the 1987 Constitution. Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure.chanrobles virtual lawlibrary At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obliged to prove good faith. 68 In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it. Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Government to remove career public officials it could have validly done under an "automatic" -vacancy-authority and to remove them without rhyme or reason. As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment’s notice. What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so in clearer terms, as its 1935, 1973, and 1986 counterparts had so stated. The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization under the prior Charter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stop to those "automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of reorganization — the first, to its conferment or authorization under Proclamation No. 3 (Freedom Charter) and the second, to its implementation on its effectivity date (February 2, 1987). But as we asserted, if the intent of Section 16 of Article XVIII of the 1987 Constitution were to extend the effects of reorganization under the Freedom Constitution, it should have said so in clear terms. It is illogical why it should talk of two phases of reorganization when it could have simply acknowledged the continuing effect of the first reorganization.chanroblesvirtualawlibrary

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Second, plainly the concern of Section 16 is to ensure compensation for "victims" of constitutional revamps — whether under the Freedom or existing Constitution — and only secondarily and impliedly, to allow reorganization. We turn to the records of the Constitutional Commission:chanrob1es virtual 1aw library INQUIRY OF MR. PADILLA On the query of Mr. Padilla whether there is a need for a specific reference to Proclamation No. 3 and not merely state "result of the reorganization following the ratification of this Constitution", Mr. Suarez, on behalf of the Committee, replied that it is necessary, inasmuch as there are two stages of reorganization covered by the Section. Mr. Padilla pointed out that since the proposals of the Commission on Government Reorganization have not been implemented yet, it would be better to use the phrase "reorganization before or after the ratification of the Constitution" to simplify the Section. Mr. Suarez instead suggested the phrase "as a result of the reorganization effected before or after the ratification of the Constitution" on the understanding that the provision would apply to employees terminated because of the reorganization pursuant to Proclamation No. 3 and even those affected by the reorganization during the Marcos regime. Additionally, Mr. Suarez pointed out that it is also for this reason that the Committee specified the two Constitutions — the Freedom Constitution and the 1986 [1987] Constitution. 69 Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated must be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service employees separated "for cause." In other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:chanrob1es virtual 1aw library 1. the separation must not be for cause, and 2. the separation must be due to any of the three situations mentioned above. By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. 70 It can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution — the first stage. We are on the second stage — that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document.chanroblesvirtuallawlibrary:red This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is apparent from the Charter’s own words. It also warrants our holding in Esguerra and Palma-

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Fernandez, in which we categorically declared that after February 2, 1987, incumbent officials and employees have acquired security of tenure, which is not a deterrent against separation by reorganization under the quondam fundamental law. Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations under martial rule. And, of course, we also have the democratic character of the Charter itself. Commissioner Mison would have had a point, insofar as he contends that the reorganization is open-ended ("progressive"), had it been a reorganization under the revolutionary authority, specifically of the Provisional Constitution. For then, the power to remove government employees would have been truly wide-ranging and limitless, not only because Proclamation No. 3 permitted it, but because of the nature of revolutionary authority itself, its totalitarian tendencies, and the monopoly of power in the men and women who wield it. What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, nevertheless, magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm and ruthless propensity that accompanies reorganizations — notwithstanding the fact that removals arising therefrom were "not for cause," and in spite of the fact that such removals would have been valid and unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary anxiety and demoralization" in the government rank and file that reorganization was causing, and prescribed guidelines for personnel action. Specifically, she said on May 28, 1986:chanrob1es virtual 1aw library WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the said constitutional provision to protect career civil servants whose qualifications and performance meet the standards of service demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are separated from the government service; 71 Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of inefficiency, graft, and unfitness to render public service. ** The President’s Memorandum of October 14, 1987 should furthermore be considered. We quote, in part:chanrob1es virtual 1aw library Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further lay-offs this year of personnel as a result of the government reorganization. 72 Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in a revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in any event, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization theory, he would still have to come to terms with the Chief Executive’s subsequent directives moderating the revolutionary authority’s plenary power to separate government officials and employees.chanrobles law library : red

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Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. — The controversy seems to be that we have, ourselves, supposedly extended the effects of government reorganization under the Provisional Constitution to the regime of the 1987 Constitution. Jose v. Arroyo 73 is said to be the authority for this argument. Evidently, if Arroyo indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement of Esguerra and the later holding of Palma-Fernandez. The question, however, is: Did Arroyo, in fact, extend the effects of reorganization under the revolutionary Charter to the era of the new Constitution? There are a few points about Arroyo that have to be explained. First, the opinion expressed therein that" [b]y virtue of said provision the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of this constitution and career civil service employees may be separated from the service without cause as a result of such reorganization" 74 is in the nature of an obiter dictum. We dismissed Jose’s petition 75 primarily because it was "clearly premature, speculative, and purely anticipatory, based merely on newspaper reports which do not show any direct or threatened injury, "76 it appearing that the reorganization of the Bureau of Customs had not been, then, set in motion. Jose therefore had no cause for complaint, which was enough basis to dismiss the petition. The remark anent separation "without cause" was therefore not necessary for the disposition of the case. In Morales v. Paredes, 77 it was held that an obiter dictum "lacks the force of an adjudication and should not ordinarily be regarded as such." 78 Secondly, Arroyo is an unsigned resolution while Palma-Fernandez is a full-blown decision, although both are en banc cases. While a resolution of the Court is no less forceful than a decision, the latter has a special weight. Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was promulgated on August 11, 1987 while Palma-Fernandez was decided on August 31, 1987.) It is well-established that a later judgment supersedes a prior one in case of an inconsistency.chanrobles.com.ph : virtual law library As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first stage being the reorganization under Proclamation No. 3 — which had already been consummated — the second stage being that adverted to in the transitory provisions themselves — which is underway. Hence, when we spoke, in Arroyo, of reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried over reorganization under the Freedom Constitution to its 1987 counterpart. Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra). As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under the prior Charter. Whereas the latter, sans the President’s subsequently imposed constraints, envisioned a purgation, the same cannot be said of the reorganization inferred under the new Constitution because, precisely, the new Constitution seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that

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Section 16 is an exception to due process and no-removal- "except for cause provided by law" principles enshrined in the very same 1987 Constitution, 79 which may possibly justify removals "not for cause," there is no contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requires that removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith — a test not obviously required under the revolutionary government formerly prevailing, but a test wellestablished in democratic societies and in this government under a democratic Charter. When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the ratification of the 1987 Constitution, Arroyo permitted a reorganization provided that it is done in good faith. Otherwise, security of tenure would be an insuperable impediment. 80 Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. 81 As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, 82 or where claims of economy are belied by the existence of ample funds. 83 It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause," if by "cause" we refer to "grounds" or conditions that call for disciplinary action. *** Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case. However, under Republic Act No. 6656, we are told:chanrob1es virtual 1aw library SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof. 84 It is in light hereof that we take up questions about Commissioner Mison’s good faith, or lack

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of it. Reorganization of the Bureau of Customs, Lack of Good Faith in. — The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy — except for the change of personnel — has occurred, which would have justified (all things being equal) the contested dismissals. The contention that the staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same staffing pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm, has not been successfully contradicted. 85 There is no showing that legitimate structural changes have been made — or a reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and simple.chanrobles law library : red The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of August 18, 1988. 86 This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the President’s directive to halt further lay-offs as a consequence of reorganization. 87 Finally, he was aware that lay-offs should observe the procedure laid down by Executive Order No. 17. We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and all, the means with which it was implemented is not. 88 Executive Order No. 127, Specific Case of . — With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof," [t]hose incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissioner’s appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau personnels except those appointed by the President." 89 Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being Presidential appointees. Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding in Palma-Fernandez. That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that the positions held by them had become vacant. In PalmaFernandez, we said in no uncertain terms:chanrob1es virtual 1aw library

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The argument that, on the basis of this provision, petitioner’s term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold-over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective (De Leon, Et Al., v. Hon. Benjamin B. Esquerra, et. al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. 90 It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the transitory provisions of the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith. Resume. — In resume, we restate as follows:chanrob1es virtual 1aw library 1. The President could have validly removed government employees, elected or appointed, without cause but only before the effectivity of the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-Fernandez v. De la Paz, supra); in this connection, Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination; 2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9); 3. From February 2, 1987, the State does not loss the right to reorganize the Government resulting in the separation of career civil service employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith. (Rep. Act No. 6656, supra.) G.R. No. 83737 This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure 91 and as far as it provides for a retroactive effect, 92 runs counter to the transitory provisions of the new Constitution on removals not for cause. It can be seen that the Act, insofar as it provides for reinstatement of employees separated without "a valid cause and after due notice and hearing" 93 is not contrary to the transitory provisions of the new Constitution. The Court reiterates that although the Charter’s transitory provisions mention separations "not for cause," separations thereunder must nevertheless be on account of a valid reorganization and which do not come about automatically. Otherwise, security of tenure may be invoked. Moreover, it can be seen that the statute itself recognizes removals without cause. However, it also acknowledges the possibility of the leadership using the artifice of reorganization to frustrate security of tenure. For this reason, it has installed safeguards. There is nothing unconstitutional about the Act.

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We recognize the injury Commissioner Mison’s replacements would sustain. We also commisserate with them. But our concern is the greater wrong inflicted on the dismissed employees on account of their illegal separation from the civil service. WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30, 1988, SEPTEMBER 20, 1988, NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241, AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARE AFFIRMED. THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE PETITIONS IN G.R. NOS. 83737, 85310 AND 86241 ARE DISMISSED. THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS A RESULT OF HIS NOTICES DATED JANUARY 26, 1988. THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS ARE ORDERED TO VACATE THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT MAY BE PROVIDED BY LAW. NO COSTS. IT IS SO ORDERED. Gutierrez, Jr., Paras, Gancayco, Bidin, Cortes, Griño-Aquino and Medialdea, JJ., concur. Padilla, J., No part, related to counsel for respondent Abaca in G.R. No. 85310. Separate Opinions MELENCIO-HERRERA, J., dissenting:chanrob1es virtual 1aw library The historical underpinnings of Government efforts at reorganization hark back to the people power phenomenon of 22-24 February 1986, and Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February 1986, stating in no uncertain terms that "the people expect a reorganization of government." In its wake followed Executive Order No. 5, issued on 12 March 1986, "Creating a Presidential Commission on Government Reorganization," with the following relevant provisions:jgc:chanrobles.com.ph "WHEREAS, there is need to effect the necessary and proper changes in the organizational and functional structures of the national and local governments, its agencies and instrumentalities, including government-owned and controlled corporations and their subsidiaries, in order to promote economy, efficiency and effectiveness in the delivery of public services x

x

x

"Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary, the reorganization of the national and local governments, its agencies and instrumentalities including government-owned or controlled corporations and their subsidiaries.chanrobles

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virtual lawlibrary x

x

x" (Emphasis supplied)

Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom Constitution, declaring, in part, in its Preamble as follows:chanrob1es virtual 1aw library WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete reorganization of the government, . . ." (Emphasis supplied) and pertinently providing:jgc:chanrobles.com.ph "ARTICLE II "Section I ". . . "The President shall give priority to measures to achieve the mandate of the people to:jgc:chanrobles.com.ph "(a) Completely reorganize the government and eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime;" (Emphasis supplied) x

x

x

"ARTICLE III - GOVERNMENT REORGANIZATION "Section 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. "Section 3. Any public office or employee separated from the service as a result of the reorganization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder." (Emphasis ours) On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for the Implementation of Section 2, Article III of the Freedom Constitution" providing, inter alia, as follows:jgc:chanrobles.com.ph "Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution, the Head of each Ministry shall see to it that the separation or replacement of officers and employees is made only for justifiable reasons, to prevent indiscriminate dismissals of personnel in the career civil service whose qualifications and performance meet the standards of public service of the New Government. "x

x

x

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"The Ministry concerned shall adopt its own rules and procedures for the review and assessment of its own personnel, including the identification of sensitive positions which require more rigid assessment of the incumbents, and shall complete such review/assessment as expeditiously as possible but not later than February 24, 1987 to prevent undue demoralization in the public service. "Section 2. The Ministry Head concerned, on the basis of such review and assessment shall determine who shall be separated from the service. Thereafter, he shall issue to the official or employee concerned a notice of separation which shall indicate therein the reason/s or ground/s for such separation and the fact that the separated official or employee has the right to file a petition for reconsideration pursuant to this Order. Separation from the service shall be effective upon receipt of such notice, either personally by the official or employee concerned or on his behalf by a person of sufficient discretion. "Section 3. The following shall be the grounds for separation replacement of personnel:chanrob1es virtual 1aw library 1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; 2. Existence of a probable cause for violation of the Anti Graft and Corrupt Practice Act as determined by the Ministry Head concerned; 3. Gross incompetence or inefficiency in the discharge of functions; 4. Misuse of Public office for partisan political purposes; 5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service."cralaw virtua1aw library "Section 11. This Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings under the Civil Service Law and rules, and to those laid off as a result of the reorganization under taken pursuant to Executive Order No. 5." (Emphasis supplied) On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers and Functions of the Commissioner of Customs", as follows:jgc:chanrobles.com.ph "x

x

x

"SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he is hereby authorized, subject to the Civil Service Law and its implementing rules and regulations:chanrob1es virtual 1aw library a) To appoint all Bureau personnel, except those appointed by the President; b) To discipline, suspend, dismiss or otherwise penalize erring Bureau officers and employees;chanrobles virtual lawlibrary

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c) To act on all matters pertaining to promotion, transfer, detail, reassignment, reinstatement, reemployment and other personnel action, involving officers and employees of the Bureau of Customs. x

x

x"

On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of Finance." Similar Orders, approximately thirteen (13) in all, 1 were issued in respect of the other executive departments. The relevant provisions relative to the Bureau of Customs read:jgc:chanrobles.com.ph "RECALLING that the reorganization of the government is mandated expressly in Article II, Section l(a) and Article III of the Freedom Constitution; "HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the necessary and proper changes in the organizational and functional structures of the government, its agencies and instrumentalities, be effected in order to promote efficiency and effectiveness in the delivery of public services; "BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more capable and responsive, organizationally and functionally, in its primary mandate of judiciously generating and efficiently managing the financial resources of the Government, its subdivisions and instrumentalities in order to attain the socio-economic objectives of the national development programs. "x

x

x"

"SEC. 2. Reorganization. — The Ministry of Finance, hereinafter referred to as Ministry, is hereby reorganized, structurally and functionally, in accordance with the provisions of this Executive Order."cralaw virtua1aw library "SEC. 33. Bureau of Customs. ". . . Executive Order No. 39 dated 6 August 1986 which grants autonomy to the Commissioner of Customs in matters of appointment and discipline of Customs personnel shall remain in effect."cralaw virtua1aw library "SEC. 55. Abolition of Units Integral to Ministry. — All units not included in the structural organization as herein provided and all positions thereof are hereby deemed abolished. . . . Their personnel shall be entitled to the benefits provided in the second paragraph of Section 59 hereof" "SEC. 59. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution.

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"The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from the service shall receive the retirement benefits to which they may be entitled under the existing laws, rules and regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service or the equivalent nearest fraction thereof favorable to them on the basis of highest salary received, but in no case shall such payment exceed the equivalent of 12 months salary. "No court or administrative body shall issue any writ or preliminary injunction or restraining order to enjoin the separation/replacement of any officer or employee affected under this Executive Order."cralaw virtua1aw library "Section 67 — All laws, ordinances, rules, regulations and other issuances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed or modified accordingly. "x

x

x" (Emphasis supplied)

On 2 February 1987, the present Constitution took effect (De Leon, Et Al., v. Esguerra, G.R. No. 78059, August 31, 1987, 153 SCRA 602). Reorganization in the Government service pursuant to Proclamation No. 3, supra, was provided for in its Section 16, Article XVIII entitled Transitory Provisions, reading:jgc:chanrobles.com.ph "Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, has been accepted." chanrobles.com:cralaw:red On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the Department of Finance for approval the proposed "position structure and staffing pattern" of the Bureau of Customs. Said Department gave its imprimatur. Thereafter, the staffing pattern was transmitted to and approved by the Department of Budget and Management on 7 September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions while under the new staffing pattern, there are 6,530 positions (CSC Resolution in CSC Case No. 1, dated 20 September 1988, pp. 3-4). On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs. On 2 October 1987 "Malacañang Memorandum Re: Guidelines on the Implementation of Reorganization Executive Orders" was issued reading, insofar as relevant to these cases, as follows:jgc:chanrobles.com.ph

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"It is my concern that ongoing process of government reorganization be conducted in a manner that is expeditious, as well as sensitive to the dislocating consequences arising from specific personnel decisions. "The entire process of reorganization, and in particular the process of separation from a service, must be carried out in the most humane manner possible. "For this purpose, the following guidelines shall be strictly followed:chanrob1es virtual 1aw library 1. By October 21, 1987, all employees covered by the Executive Orders for each agency on reorganization shall be:chanrob1es virtual 1aw library a. informed of their reappointment or b. offered another position in the same department/agency, or c. informed of their termination. 2. In the event of an offer for a lower position, there will be no reduction in the salary. x

x

x

4. Each department/agency shall constitute a Reorganization Appeals Board at the central office, on or before October 21, 1987, to review or reconsider appeals or complaints relative to reorganization. All cases submitted to the Boards shall be resolved subject to the following guidelines:chanrob1es virtual 1aw library a. publication or posting of the appeal procedure promulgated by the Department Secretary; b. adherence to due process; c. disposition within 30 days from submission of the case; d. written notification of the action taken and the grounds thereof. Action by the Appeals Review Board does not preclude appeal to the Civil Service Commission. 5. Placement in the new staffing pattern of incumbent personnel shall be completed prior to the hiring of new personnel, if any. x

x

x" (Emphasis supplied)

On 25 November 1987 Commissioner Mison wrote the President requesting a grace period until the end of February 1988 within which to completely undertake the reorganization of the Bureau of Customs pursuant to Executive Order No. 127 dated 30 January 1987. Said request was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22

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December 1987. On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum "Re: Guidelines on the Implementation of Reorganization Executive Orders" was issued in the same tenor as the Malacañang Memorandum of 2 October 1987, providing inter alia:jgc:chanrobles.com.ph "To effectively implement the reorganization at the Bureau of Customs, particularly in the selection and placement of personnel, and insure that the best qualified and most competent personnel in the career service are retained, the following guidelines are hereby prescribed for the guidance of all concerned 1. By February 28, 1988 all employees covered by Executive Order No. 127 and the grace period extended to the Bureau of Customs by the President of the Philippines on reorganization shall be:chanrob1es virtual 1aw library a. informed of their reappointment, or b. offered another position in the same department or agency, or c. informed of their termination. 2. In the event of termination, the employee shall:chanrob1es virtual 1aw library a. be included in a consolidated list compiled by the Civil Service Commission. All departments who are recruiting shall give preference to the employees in the list; and b. continue to receive salary and benefits until February 28, 1988, and c. be guaranteed the release of separation benefits within 45 days from termination and in no case later than June 15, 1988. x

x

x" (Emphasis supplied)

It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the Malacañang Guidelines of 2 October 1987 in that the employees concerned were merely to be informed of their termination. On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau of Customs officers and employees effective on 28 February 1988. As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials and employees of the Bureau of Customs (CSC Resolution in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated 27 January 1988, Commissioner Mison recommended Jose M. Balde for appointment to President Aquino as one of three (3) Deputy Commissioners under Executive Order No. 127.chanrobles.com : virtual law library In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the

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Implementation of Government Reorganization" was passed by Congress on 9 June 1988. The President signed it into law on 10 June 1988 and the statute took effect on 29 June 1988. On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the provisions of Republic Act No. 6656. The relevant provisions thereof read:jgc:chanrobles.com.ph "SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and employees in the reorganization of the various agencies of the National government . . . . "SECTION 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party:chanrob1es virtual 1aw library (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof x

x

x

"SECTION 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of

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service. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or agency concerned. x

x

x

"SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period of time authorized by law. "In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized by executive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act within which to Implement their respective reorganization plans in accordance with the provisions of this Act. x

x

x

"SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the provisions of this Act are hereby repealed or modified accordingly. The rights and benefits under this Act shall be retroactive as of June 30, 1987. "x

x

x" (Emphasis ours)

Given the foregoing statutory backdrop, the issues can now be addressed. Scope of Section 16, Art. XVIII, 1987 Constitution Crucial to the present controversy is the construction to be given to the abovementioned Constitutional provision (SECTION 16, for brevity), which speaks of:jgc:chanrobles.com.ph "Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution . . ." (Emphasis supplied). To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by Proclamation No. 3; (2) that such separation is NOT FOR CAUSE but as a result of the reorganization pursuant to said Proclamation; and (3) that the reorganization pursuant to Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution during the transition period. Separation NOT FOR CAUSE The canon for the removal or suspension of a civil service officer or employee is that it must be FOR CAUSE. That means "a guarantee of both procedural and substantive due process. Basically, procedural due process would require that suspension or dismissal come only after notice and hearing. Substantive due process would require that suspension or dismissal be ‘for cause’." (Bernas, The Constitution of the Republic of the Philippines: A Commentary, Vol. II,

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First Edition, 1988, p. 334) The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which states that "No officer or employee of the civil service shall be removed or suspended except FOR CAUSE provided by law."cralaw virtua1aw library There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means the observance of both procedural and substantive due process in cases of removal of officers or employees of the civil service. When SECTION 16 speaks, therefore, of separation from the service NOT FOR CAUSE, it can only mean the diametrical opposite. The constitutional intent to exempt the separation of civil service employees pursuant to Proclamation No. 3 from the operation of Article IX-B, Section 2(3), becomes readily apparent. A distinction is explicitly made between removal FOR CAUSE, which as aforestated, requires due process, and dismissal NOT FOR CAUSE, which implies that the latter is not bound by the "fetters" of due process. It is obviously for that reason that Section 16 grants separation pay and retirement benefits to those separated NOT FOR CAUSE but as a result of the reorganization precisely to soften the impact of the non-observance of due process. "What is envisioned in Section 16 is not a remedy for arbitrary removal of civil servants enjoying security of tenure but some form of relief for members of the career civil service who may have been or may be legally but involuntarily ‘reorganized out’ of the service or may have voluntarily resigned pursuant to the reorganization policy" (ibid., p. 615).chanrobles virtual lawlibrary Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to Proclamation No. 3 even after ratification of the Constitution and during the transition period. The two [2] stages contemplated, namely, (1) the stage before and (2) after ratification, refer to the same nature of separation "NOT FOR CAUSE but as a result of Proclamation No. 3." No valid reason has been advanced for a different treatment after ratification as the majority opines, i.e., that separation NOT FOR CAUSE is allowed before ratification but that, thereafter, separation can only be FOR CAUSE. A fundamental principle of Constitutional construction IS to assure the realization of the purpose of the framers of the organic law and of the people who adopted it. That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to continue even after the ratification of the 1987 Constitution, at least transitorily, is evident from the intent of its authors discoverable from their deliberations held on 3 October 1986 and evincing their awareness that such reorganization had not as yet been fully implemented. Thus:jgc:chanrobles.com.ph "Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause ‘pursuant to the provisions of Article III of Proclamation No. 3, issued on March 25,1986, and the reorganization.’ Are those words necessary? Can we not just say ‘result of the reorganization following the ratification of this Constitution’? In other words, must we make specific reference to Proclamation No. 3? "Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has been a reorganization by virtue of Proclamation No. 3. In other words, there are two stages of

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reorganization covered by this section. "Mr. PADILLA. I understand there is a reorganization committee headed by a minister? "Mr. SUAREZ. Philippine Commission on Government Reorganization. "Mr. PADILLA. But whether that has already been implemented or not, I do not believe in it. There has been a plan, but I do not think it has been implemented. If we want to include any previous reorganization after or before the ratification, why do we not just say reorganization before or after the ratification’ to simplify the provision and eliminate two-and-a-half sentences that may not be necessary? And as a result of the reorganization, if the committee feels there has been reorganization before ratification and there be reorganization after, we just say ‘before or after the ratification of this Constitution.’ Mr. SUAREZ. Something like this: ‘as a result of the reorganization effected before or after the ratification of the Constitution’ on the understanding, with the statement into the records, that this would be applicable to those reorganized out pursuant to the Freedom Constitution also. "Mr. PADILLA. That is understood if there has been a reorganization before the ratification or a reorganization after the ratification." (RECORDS of the Constitutional Commission, Vol. 5, p. 416) (Emphasis provided) It should also be recalled that the deadline for the reorganization under Proclamation No. 3 was "one year from February 25, 1986" (Article III, Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided that the review/assessment of personnel be completed "not later than February 24, 1987." But, confronted with the reality of the ratification of the Constitution before that deadline without reorganization having been completed, there was need for a provision allowing for its continuance even after ratification and until completed. It was also to beat that deadline that EO 127 and similar issuances, providing for the reorganization of departments of government, were all dated 30 January 1987 or prior to the plebiscite held on 2 February 1987. The intent to continue and complete the reorganizations started is self-evident in SECTION 16. In Jose v. Arroyo, Et. Al. (G.R. No. 78435, August 11, 1987), which was a Petition for Certiorari and Prohibition to enjoin the implementation of Executive Order No. 127, we recognized that the reorganization pursuant to Proclamation No. 3 as mandated by SECTION 16, was to continue even after ratification when we stated:jgc:chanrobles.com.ph "The contention of petitioner that EO No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil service employees security of tenure overlooks the provision of Section 16, Art. XVIII (Transitory Provisions) which explicitly authorizes the removal of career civil service employees not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of the Constitution. By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of this Constitution and career civil service employees may be separated from the service without cause as a result of such reorganization." (Emphasis ours) With due respect to the majority, we disagree with its conclusion that the foregoing

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pronouncement is mere "obiter dictum." chanrobles lawlibrary : rednad "An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the court concerning a question which was not directly before it (In re Hess, 23 A. 2d. 298, 301, 20 N.J. Misc. 12). It is language unnecessary to a decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not embody the resolution or determination of the court, and is made without argument or full consideration of the point (Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an expression of opinion by the court or judge on a collateral question not directly involved, (Crescent Ring Co. v. Traveler’s Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision (Du Bell v. Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167)."cralaw virtua1aw library In the case at bar, however, directly involved and squarely before the Court was the issue of whether "EO 127 violates Section 2(3) of Article IX-B of the 1987 Constitution against removal of civil service employees except for cause." Petitioner batted for the affirmative of the proposition, while respondents contended that "removal of civil service employees without cause is allowed not only under the Provisional Constitution but also under the 1987 Constitution if the same is made pursuant to a reorganization after the ratification of the Constitution."cralaw virtua1aw library It may be that the Court dismissed that Petition for being "premature, speculative and purely anticipatory" inasmuch as petitioner therein had "not received any communication terminating or threatening to terminate his services." But that was only one consideration. The Court still proceeded to decide all the issues adversatively contested by the parties, namely "1) that the expiration date of February 25, 1987 fixed by Section 2 of Proclamation No. 3 on which said Executive order is based had already lapsed; 2) that the Executive Order has not been published in the Official Gazette as required by Article 2 of the Civil Code and Section 11 of the Revised Administrative Code; and 3) that its enforcement violates Section 2(3) of Article IX-B of the 1987 Constitution against removal of civil service employees except for cause."cralaw virtua1aw library The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the period mandated by Proclamation No. 3, and the validity of EO 127, cannot be said to be mere "obiter." They were ultimate issues directly before the Court, expressly decided in the course of the consideration of the case, so that any resolution thereon must be considered as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F.2d 687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi Yamada 4 F. (2d) 455). Such resolution would not lose its value as a precedent just because the disposition of the case was also made on some other ground. ". . . And this rule applies as to all pertinent questions although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion (Northern Pac. Ry. Co. v. Baker, D.C. Wash., 3 F. Suppl. 1; See also Wisconsin Power and Light Co. v. City of Beloit, 254 NW 119; Chase v. American Cartage Co. 186 N.W. 598; City of Detroit, Et. Al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point expressly decided does not lose its value as a precedent because the disposition of the case is made on some other ground. (Wagner v. Corn Products Refining Co. D.C. N.J. 28 F 2d 617) Where a case presents two or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case is an authoritative

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precedent as to every point decided, and none of such points can be regarded as having merely the status of a dictum (See U.S. v. Title Insurance and Trust Co., Cal., 44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered. (Richmond Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed. 303)" chanroblesvirtual|awlibrary It is true that in Palma-Fernandez v. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA 751), we had stated:jgc:chanrobles.com.ph "The argument that, on the basis of this provision (Section 26 of Executive Order No. 119, or the ‘Reorganization Act of the Ministry of Health’), petitioner’s term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold-over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, Et Al., v. Hon. Esguerra, Et Al., G.R. No. 78059, 31 August 1987, 153 SCRA 602). After the said date the provisions of the latter on security of tenure govern."cralaw virtua1aw library The factual situation in the two cases, however, radically differ. In the cited case, Dra. PalmaFernandez, the petitioner, had already been extended a permanent appointment as Assistant Director for Professional Services of the East Avenue Medical Center but was still being transferred by the Medical Center Chief to the Research office against her consent. Separation from the service as a result of reorganization was not involved. The question then arose as to whether the latter official had the authority to transfer or whether the power to appoint and remove subordinate officers and employees was lodged in the Secretary of Health. Related to that issue was the vital one of whether or not her transfer, effected on 29 May 1987, was tantamount to a removal without cause. Significant, too, is the fact that the transfer was basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the Civil Service Decree, and not because she was being reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry of Health," although the said Act was invoked after the fact. And so it was that SECTION 16 was never mentioned, much less invoked in the PalmaFernandez case. Finally, on this point, it is inaccurate for the majority to state that there were no reorganization orders after ratification. There were, namely, EO 181 (Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193 (Reorganization Act of the Office of Energy Affairs), June 10, 1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262 (Reorganization Act of the Department of Local Government), July 25, 1987; EO 297 (Reorganization Act of the office of the Press Secretary), July 25, 1987. The Element of Good Faith The majority concedes that reorganization can be undertaken provided it be in good faith but concludes that Commissioner Mison was not in good faith. The aforesaid conclusion is contradicted by the records.

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Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of the Bureau of Customs "structurally and functionally" and provided for the abolition of all units and positions thereof not included in the structural organization (Section 55). As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who, on 24 May 1987, transmitted to the Department of Finance for approval the proposed "position structure and staffing pattern" of the Bureau of Customs. This was approved by the Department of Finance. Thereafter, it was transmitted to and approved by the Department of Budget and Management on 7 September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions while under the new staffing pattern, there are 6,530 positions. On 2 October 1987 "Malacañang Memorandum Re: Guidelines on the Implementation of Reorganization Executive Orders" provided:jgc:chanrobles.com.ph "By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:chanrob1es virtual 1aw library a. informed of their reappointment, or b. offered another position in the same department or agency, or c. informed of their termination." (Emphasis supplied) On 25 November 1987 Commissioner Mison asked for and was granted by the President an extension up to February 1988 within which to completely undertake the reorganization of the Bureau of Customs. On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the Implementation of Reorganization Executive Orders" reiterating the above-quoted portion of the Malacañang Memorandum of 2 October 1987. Pursuant thereto, on 28 January 1988, Commissioner Mison addressed uniform letters of termination to the employees listed on pages 15,16 and 17 of the majority opinion, effective on 28 February 1988, within the extended period granted.chanroblesvirtuallawlibrary The records further show that upon Commissioner Mison’s official inquiry, Secretary of Justice Secretary A. Ordoñez, rendered the following Opinion:jgc:chanrobles.com.ph ". . . It is believed that customs employees who are reorganized out in the course of the implementation of E.O. No. 127 (reorganizing the Department of Finance) need not be informed of the nature and cause of their separation from the service. It is enough that they be informed of their termination’ pursuant to section 1(c) of the Memorandum dated October 2, 1987 of President Aquino, which reads:jgc:chanrobles.com.ph "1. By October 21,1987, all employees covered by the Executive orders for each agency on reorganization shall be:chanrob1es virtual 1aw library x

x

x

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"c) Informed of their terminations. "The constitutional mandate that ‘no officer or employee of the civil service shall be removed or suspended except for cause as provided by law’ (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not apply to employees who are separated from office as a result of the reorganization of that Bureau as directed in Executive Order No. 127. x

x

x

"Regarding your (third) query, the issue as to the constitutionality of Executive Order No. 127 is set at rest, after the Supreme Court resolved to dismiss the petition for certiorari questioning its enforceability, for lack of merit (see Jose v. Arroyo, Et Al., supra)." (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied) The former Chairman of the Civil Service Commission, Celerina G. Gotladera, likewise periodically consulted by Commissioner Mison, also expressed the opinion that "it is not a prerequisite prior to the separation of an employee pursuant to reorganization that he be administratively charged." (Annex 16, p. 411, Rollo, G.R. No. 85310) Moreover, the records show that the final selection and placement of personnel was done by a Placement Committee, one of whose members is the Head of the Civil Service Commission Field Office, namely, Mrs. Purificacion Cuerdo. The appointment of employees made by Commissioner Mison was based on the list approved by said Placement Committee. But the majority further faults Mison for defying the President’s directive to halt further layoffs as a consequence of reorganization, citing OP Memo of 14 October 1987, reading:jgc:chanrobles.com.ph "Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further lay-offs this year of personnel as a result of the government reorganization." (p 45, Decision) The foregoing, however, must be deemed superseded by later developments, namely, the grant to Commissioner Mison by the President on 22 December 1987 of a grace period until the end of February 1988 within which to completely undertake the reorganization of the Bureau of Customs, which was, in fact, accomplished by 28 February 1988. To further show lack of good faith, the majority states that Commissioner Mison failed to observe the procedure laid down by EO 17, supra, directing inter alia that a notice of separation be issued to an employee to be terminated indicating therein the reason/s or ground/s for such separation. That requirement, however, does not appear in Section S9 of EO 127, which provides on the contrary "that those incumbents whose positions are not included in the new position structure and staffing pattern of the Ministry or who are not reappointed shall be deemed separated from the service." The right granted by EO 17 to an employee to be informed of the ground for his separation must be deemed to have been revoked by the repealing clause of EO 127 (Section 67) providing that "all laws, ordinances or parts thereof,

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which are inconsistent with this Executive Order, are hereby repealed and modified accordingly." chanrobles law library Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant to EO 5. Thus "The Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings under the Civil Service law and rules, and to those laid off as a result of reorganization undertaken pursuant to Executive Order No. 5." (Emphasis ours) That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory portion reading:jgc:chanrobles.com.ph "Recalling that the reorganization of the government is mandated expressly by Article II, Section 1 (a) and Article III of the Freedom Constitution; "Having in mind that pursuant to Executive Order No. 5 (1986), it is directed that the necessary and proper changes in the organizational and functional structures of the government, its agencies and instrumentalities, be effected in order to promote efficiency and effectiveness in the delivery of public service;" (Emphasis supplied) Constitutionality of Republic Act No. 6656 The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization," particularly Section 2 thereof, to test the good faith of Commissioner Mison. We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656 clashes frontally with SECTION 16. 1) SECTION 16 clearly recognizes that career service employees separated from the service by reason of the "complete reorganization of the government" pursuant to Proclamation No. 3 may be separated NOT FOR CAUSE. And yet, RA 6656 requires the exact opposite — separation FOR CAUSE. It would not be remiss to quote the provision again:jgc:chanrobles.com.ph "SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there i8 a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and the reclassified

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offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof (Republic Act No. 6156) The standards laid down are the "traditional" criteria for removal of employees from the career service, e.g. valid cause, due notice and hearing, abolition of, or redundancy of offices. Proclamation No. 3, on the other hand, effectuates the "progressive" type of reorganization dictated by the exigencies of the historical and political upheaval at the time. The "traditional" type is limited in scope. It is concerned with the individual approach where the particular employee involved is charged administratively and where the requisites of notice and hearing have to be observed. The "progressive" kind of reorganization, on the other hand, is the collective way. It is wider in scope, and is the reorganization contemplated under SECTION 16.chanroblesvirtual|awlibrary 2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in SECTION 16. The benefits granted by the latter provision to employees separated NOT FOR CAUSE but as a consequence of reorganization are "separation pay, retirement, and other benefits accruing to them under the laws of general application in force at the time of their separation." The benefit of reinstatement is not included. RA 6656, however, allows reinstatement. That it cannot do because under SECTION 16, it is not one of the laws "in force at the time of their separation."cralaw virtua1aw library The Constitution is the paramount law to which all laws must conform. It is from the Constitution that all statutes must derive their bearings. The legislative authority of the State must yield to the expression of the sovereign will. No statutory enactment can disregard the Charter from which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector of Internal Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in providing for retroactivity — it disregards and contravenes a Constitutional imperative. To save it, it should be applied and construed prospectively and not retroactively notwithstanding its explicit provision. Then, and only then, would it make good law. Effects of Reorganization To be sure, the reorganization could effect the tenure of members of the career service as defined in Section 5, Article IV of Presidential Decree No. 807, and may even result in the separation from the office of some meritorious employees. But even then, the greater good of the greatest number and the right of the citizenry to a good government, and as they themselves have mandated through the vehicle of Proclamation No. 3, provide the justification for the said injury to the individual. In terms of values, the interest to fan employee to security of tenure must yield to the interest of the entire populace and to an efficient and honest government. But a reorganized employee is not without rights. His right lies in his past services, the entitlement to which must be provided for by law. EO 127 provides for the same in its Section 59, and so does SECTION 16 when the latter specified that career civil service employees separated from the service not for cause:jgc:chanrobles.com.ph "shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the

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Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, has been accepted."cralaw virtua1aw library This is a reward for the employee’s past service to the Government. But this is all. There is no vested property right to be reemployed in a reorganized office. "The right to an office or to employment with government or any of its agencies is not a vested property right, and removal therefrom will not support the question of due process" (Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service employee does not have a constitutionally protected right to his position, which position is in the nature of a public office, political in character and held by way of grant or privilege extended by government; generally he has been held to have no property right or vested interest to which due process guaranties extend (See Taylor v. Beckham 178 U. S. 548, 44 L Ed. 1187; Angilly v. US (CA2 NY) 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY State Civil Service Com., 21 Misc 2d 1034, 194 NYS 2d 89). To ensure, however, that no meritorious employee has been separated from the service, there would be no harm, in fact, it could do a lot of good, if the Commissioner of Customs reviews the evaluation and placements he has so far made and sees to it that those terminated are included in a consolidated list to be given preference by departments who are recruiting (Section 2[a], BOC Memorandum, January 6, 1988).chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Conclusion Premises considered, and subject to the observation hereinabove made, it is our considered view that the separation from the service "NOT FOR CAUSE but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986" of the affected officers and employees of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil Service Commission, dated 30 June 1988, 20 September 1988, and 16 November 1988 should be SET ASIDE for having been issued in grave abuse of discretion. Republic Act No. 6656, in so far as it provides for retroactivity, should be declared UNCONSTITUTIONAL for being repugnant to the letter and spirit of Section 16, Article XVIII of the 1987 Constitution. Fernan, C.J., Narvasa, Feliciano and Regalado, JJ., concur. CRUZ, J., concurring:chanrob1es virtual 1aw library I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While additional comments may seem superfluous in view of the exhaustiveness of his ponencia, I nevertheless offer the following brief observations for whatever they may be worth.chanrobles virtual lawlibrary Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the ongoing government reorganization valid because it is merely a continuation of the

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reorganization begun during the transition period. The reason for this conclusion is the phrase "and the reorganization following the ratification of the Constitution," that is to say, after February 2, 1987, appearing in the said provision. The consequence (and I hope I have not misread it) is that the present reorganization may still be undertaken with the same "absoluteness" that was allowed the revolutionary reorganization although the Freedom Constitution is no longer in force. Reorganization of the government may be required by the legislature even independently of specific constitutional authorization, as in the case, for example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the reorganization decreed by Article III of the Freedom Constitution was unlimited as to its method except only as it was later restricted by President Aquino herself through various issuances, particularly E.O. No. 17. But this reorganization, for all its permitted summariness, was not indefinite. Under Section 3 of the said Article III, it was allowed only up to February 29, 1987 (which we advanced to February 2, 1987, when the new Constitution became effective). The clear implication is that any government reorganization that may be undertaken thereafter must be authorized by the legislature only and may not be allowed the special liberties and protection enjoyed by the revolutionary reorganization. Otherwise, there would have been no necessity at all for the time limitation expressly prescribed by the Freedom Constitution. I cannot accept the view that Section 16 is an authorization for the open-ended reorganization of the government "following the ratification of the Constitution." I read the provision as merely conferring benefits — deservedly or not — on persons separated from the government as a result of the reorganization of the government, whether undertaken during the transition period or as a result of a law passed thereafter. What the provision grants is privileges to the retirees, not power to the government. It is axiomatic that grants of power are not lightly inferred, especially if these impinge on individual rights, and I do not see why we should depart from this rule. To hold that the present reorganization is a continuation of the one begun during the transition period is to recognize the theory of the public respondent that all officers and employees not separated earlier remain in a hold-over capacity only and so may be replaced at any time even without cause. That is a dangerous proposition that threatens the security and stability of every civil servant in the executive department. What is worse is that this situation may continue indefinitely as the claimed "progressive" reorganization has no limitation as to time. Removal imports the forcible separation of the incumbent before the expiration of his term and can be done only for cause as provided by law. Contrary to common belief, a reorganization does not result in removal but in a different mode of terminating official relations known as abolition of the office (and the security of tenure attached thereto.) The erstwhile holder of the abolished office cannot claim he has been removed without cause in violation of his constitutional security of tenure. The reason is that the right itself has disappeared with the abolished office as an accessory following the principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana v. Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.) This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based

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on a valid purpose, such as the promotion of efficiency and economy in the government through a pruning of offices or the streamlining of their functions. (Cervantes v. AuditorGeneral, 91 Phil. 359.) Normally, a reorganization cannot be validly undertaken as a means of purging the undesirables for this would be a removal in disguise undertaken en masse to circumvent the constitutional requirement of legal cause. (Eradication of graft and corruption was one of the expressed purposes of the revolutionary organization, but this was authorized by the Freedom Constitution itself. In short, a reorganization, to be valid, must be done in good faith. (Urgelio v. Osmeña, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Cariño v. ACCFA, 18 SCRA 183.) A mere recitation — no matter how lengthy — of the directives, guidelines, memoranda, etc. issued by the government and the action purportedly taken thereunder does not by itself prove good faith. We know only too well that these instructions, for an their noble and sterile purposes, are rarely followed in their actual implementation. The reality in this case, as the majority opinion has pointed out and as clearly established in the hearing we held, is that the supposed reorganization was undertaken with an eye not to achieving the avowed objectives but to accommodating new appointees at the expense of the dislodged petitioners. That was also the finding of the Civil Service Commission, to which we must accord a becoming respect as the constitutional office charged with the protection of the civil service from the evils of the spoils system.chanroblesvirtuallawlibrary:red The present administration deserves full support in its desire to improve the civil service, but this objective must be pursued in a manner consistent with the Constitution. This praiseworthy purpose cannot be accomplished by an indiscriminate reorganization that will sweep in its wake the innocent along with the redundant and inept, for the benefit of the current favorites. Endnotes:

1. Proc. No. 3, (PROVISIONAL CONST.), art. II, sec. 1(a). 2. Supra, art. III, secs. 1-4. 3. Proc. No. 1 (1986). 4. CONST. (1986), supra, art. 1, sec 3. 5. Supra. 6. The various "OIC cases", among them, Solis v. Pimentel, G.R. No. 73970, April 10, 1986; Palma v. Banata, G.R. No. 74720, August 31, 1987; Association of Barangay Councils of Las Piñas v. Juntilla, G.R. No. 78965, November 17, 1987; Ramos v. Lorenzana, G.R. No. 80282 November 26, 1987; Del Monte v. Ferrer, G.R. 78963, January 13, 1988; Yasay v. Flores, G.R. No. 81047, January 13, 1988; Yasay v. Flores, G.R. 81047, January 7, 1988; ending with De Leon v. Esguerra, No. 78059, August 31, 1987, 153 SCRA 602. 7. Jose v. Arroyo, G.R. No. 78435, August 11, 1987; Palma-Fernandez v. De la Paz, No. 78496, August 15, 1988, 160 SCRA 751.

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8. Exec. Ord. No. 17, sec. 3. 9. 88 O.G. 2009-2024 (Apr., 1987). 10. Exec. Ord. No. 127, supra, secs. 33-38. 11. De Leon v. Esguerra, supra. The writer of this opinion dissented, and maintained that the new Constitution was ratified on February 11, 1987. 12. Rollo, G.R. No. 85310, 317-31. 13. Id., 317. 14. Id., 8. 15. Rollo, G.R. No. 81954; rollo, G.R. No. 81967, 27; rollo, G.R. No. 82023, 37; see also rollo, id., G.R. No. 85310, 8. 16. The last eighteen are the successful employees in the appeal with the Civil Service Commission (subject of G.R. No. 85310) whose reinstatement the Commission ordered pending further proceedings herein. We consider them impleaded as parties-respondents in G.R. No. 85310. Also, the Customs employees involved have been impleaded as parties in more than one petition either as petitioners or respondents. 17. Rollo, id., G.R. No. 85310, 8; according, however, to the petitioners in G.R. 86241, a total of 397 employees were terminated. Id., 260; former Sen. Ambrosio Padilla, amicus curiae, placed the figure at 493 (G.R. No. 85310, id., 993). 18. Rollo, id., G.R. No. 85310, 79; also rollo, G.R. No. 85335, 36. 19. Rollo, id., G.R. No. 85310, 424. 20. Rollo, G.R. No. 86241, 144. 21. Senen Dimaguila and Romulo Badillo earlier instituted in this Court G.R. Nos. 81968 and 81955 but were allowed, by our Resolution of July 5, 1988, to withdraw and join the appeal subject of the Civil Service Commission’s Resolution of November 11, 1988. See rollo, G.R. No. 82023, 169. 22. 84 O.G. Supp. 1-4 (June, 1988). 23. Supra, 3. 24. CONST. (1987), art. XVIII, sec. 16. 25. This was raised by the Civil Service Commission in G.R. No. 86241. Failure to exhaust administrative remedies was raised in G.R. No. 81954 and 81917 by the Solicitor General.

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26. Sarmiento III v. Mison, No. L-79974, December 17, 1987, 153 SCRA 549, 551-552. 27. Pres. Decree No. 807, sec. 39. The provision reads: "Appeals. — (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. Notice of the appeal shall be filed with the disciplining office, which shall forward the records of the case, together with the notice of appeal, to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any. The notice of appeal shall specifically state the date of the decision appealed from and the date of receipt thereof. It shall also specifically set forth clearly the grounds relied upon for excepting from the decision; (b) A petition for reconsideration shall be based only on any of the following grounds: (1) new evidence has been discovered which materially affects the decision rendered; (2) the decision is not supported by the evidence on record; or (3) errors of law or irregularities have been committed prejudicial to the interest of the respondent: Provided, That only one petition for reconsideration shall be entertained."cralaw virtua1aw library 28. Rep. Act No. 6656, supra, sec. 8. The provision reads: "Sec. 8. An officer or employee who is still not satisfied with the decision of the appointing authority may further appeal within ten (10) days from receipt thereof to the Civil Service Commission which shall render a decision thereon within thirty (30) days and whose decision shall be final and executory."cralaw virtua1aw library 29. CONST., art. IX, sec. 7. The provision reads: "Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."cralaw virtua1aw library 30. Rollo, id., G.R. No. 85310, 82. 31. Id., 415. 32. CONST. (1987), supra. 33. See Aratuc v. Commission on Elections, Nos. L-49705-09, 49717-21, February 8, 1979, 88 SCRA 251. 34. Supra, 271. 35. Supra. 36. Aratuc, supra, 270. 37. CONST. (1987), supra, art. IX(c), sec. 2(2). To be more precise, the 1987 Constitution gives the Commission "exclusive original jurisdiction over all [election] contests."cralaw

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virtua1aw library 38. Supra, art. IX, sec. 7. 39. Aratuc, supra, 271; Emphasis supplied. 40. Rep. Act No. 6656, supra, sec. 8. 41. RULES OF COURT, Rule 65, sec. 1. 42. CONST. (1987), art. IX, sec. 7, supra. 43. Phil. American Life Ins. Co. v. Social Security Com., No. L- 20383, May 24, 1967, 20 SCRA 162. 44. Exec. Ord. No. 127, supra, sec. 59. 45. Supra. 46. Rollo, id., G.R. No. 81954, 36. 47. Exec. Ord. No. 127, supra, sec. 34; rollo, id., G.R. No. 81954. 48. Exec. Ord. No. 127, supra, sec. 59. 49. Rollo, id., G.R. No. 81954, 12; emphasis in the original. 50. CONST. (1986), Supra, art. IX, sec. 2. 51. CONST. (1987), supra, art IX(B), sec. 2(3). 52. August 8, 1986. 53. Supra, sec. 1(a). 54. G.R. No. 78435, August 11, 1987. 55. Supra, 3. 56. CONST. (1987), supra, art. XVIII, sec. 16. 57. Rollo, id, G.R. No. 81954, 216; rollo, id., G.R. No. 81967, 64; rollo, id., G.R. No. 82023, 76. 58. Supra. 59. See Exec. Ord. No. 17, supra, sec. 1. 60. Rollo, id., G.R. No. 85310, 18; rollo, id., G.R. No. 86241, 14.

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61. Id.; id., 13. 62. Id., 37; id., 33. 63. CONST. (1987), art. XVIII, sec. 16, supra. 64. See fn. 11. 65. CONST. (1935), art. XVI, sec. 4. 66. CONST. (1973), art. XVII, sec. 9. 67. CONST. (1986); art. III, sec. 2, supra. 68. Ginson v. Municipality of Murcia, No. L-46585, February 8, 1988, 157 SCRA 1; De la Llana v. Alba, No. 57883, March 12, 1982, 112 SCRA 294; Cruz v. Primicias, Jr., No. L-28573, June 13, 1968, 23 SCRA 998. 69. III RECORD OF THE CONSTITUTIONAL COMMISSION, 1615-1616 (1986). 70. De Leon v. Esguerra, supra; Palma-Fernandez v. De la Paz, supra. 71. Exec. Ord. No. 17, supra. ** Paradoxically, Executive Order No. 17 would have provided a "cause" for removal. 72. OP Memo (October 14, 1987). 73. Supra, see fn. 7. 74. Arroyo, supra, 3. 75. The petitioner was Leonardo Jose, a Collector III at the Bureau of Customs. 76. Supra, 2. 77. 55 Phil. 565 (1930). 78. Supra. 79. Art. III, sec. IX(B), sec 2(3). 80. Supra. In Palma-Fernandez, we upheld claims of security of tenure in the absence of a bona fide reorganization. In that case, there was no valid abolition of an office but merely, a change in the name of position. We did not foreclose therein the validity of a removal "not for cause," provided that there is a valid reorganization. 81. Ginson v. Municipality of Murcia, supra; De la Llana v. Alba Supra; Cruz v. Primicias, Jr.,

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supra. 82. Palma-Fernandez, supra. In that case, the office of "Chief of Clinic" was purportedly abolished and in its place an office of "Assistant Director for Professional Services" was created. We held that the two positions "are basically one and the same except for the change of nomenclature." (757.) 83. Ginson, supra; Cruz, supra. *** Although as we also said, Executive Order No. 17 itself imposed a "cause" for removal under the Freedom Constitution. 84. Rep. Act No. 6156, supra. 85. See G.R. Nos. 81964, 81967, id., 10-11 86. G.R. No. 86421, id., 31. 87. OP Memo (Oct., 14, 1987), supra. 88. See Free Telephone Workers Union v. Minister of Labor and Employment, No. 58184, October 30, 1981, 108 SCRA 757. 89. Supra. With respect to Vicente Feria, Jr., the records reveal that his appointment was extended on April 22, 1986. (G.R. No. 81967, id., 7.) For that reason, he cannot be said to be an "incumbent" for purposes of reorganization, to whom a reappointment may be issued. Because his appointment came after the promulgation of the Freedom Constitution, he is, to all intents and purposes, an appointee as a result of reorganization. 90. Supra, 757. 91. Supra, sec. 9. 92. Supra, sec. 13. 93. Supra, sec. 2. MELENCIO-HERRERA, J., dissenting:chanrob1es virtual 1aw library 1. Executive Orders Nos. 116 (Agriculture and Food); 117 (Education, Culture and Sports); 119 (Health); 120 (Tourism); 123 (Social Welfare and Development); 124 (Public Works and Highways); 125 (Transportation and Communication) 126 (Labor and Employment); 128 (Science and Technology; 129 (Agrarian Reform); 131 (Natural Resources); 132 (Foreign Affairs); and 133 (Trade and Industry).

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EN BANC [G.R. No. 57883. March 12, 1982.] GUALBERTO J. DE LA LLANA, Presiding Judge, Branch II of the City Court of Olongapo, ESTANISLAO L. CESA, JR., FIDELA Y. VARGAS, BENJAMIN C. ESCOLANGO, JUANITO C. ATIENZA, MANUEL REYES ROSAPAPAN, JR., VIRGILIO E. ACIERTO, and PORFIRIO AGUILLON AGUILA, Petitioners, v. MANUEL ALBA, Minister of Budget, FRANCISCO TANTUITCO, Chairman, Commission on Audit, and RICARDO PUNO, Minister of Justice, Respondents. Fidela Vargas, Leonardo S. Gonzales and Raul Gonzales, for Petitioners. Solicitor General Estelito Mendoza and Assistant Solicitor General Reynato S. Puno forRespondents. SYNOPSIS Petitioners assailed the constitutionality of Batas Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary, Appropriating Funds Therefore and for other Purposes," the same being contrary to the security of tenure provision of the Constitution as it separates from the judiciary Justices and judges of inferior courts from the Court of Appeals to municipal circuit courts except the occupants of the Sandiganbayan and the Court of Tax Appeals, unless appointed to the inferior courts established by such Act. They likewise impute lack of good faith in its enactment and characterize as undue delegation of legislative power to the President his authority to fix the compensation and allowances of the Justices and judges thereafter appointed and the determination of the date when the reorganization shall be deemed completed. The Solicitor General maintains that there is no valid justification for the attack on the constitutionality of the statute, it being a legitimate exercise of the power vested in the Batasang Pambansa to reorganize the judiciary, the allegations of absence of good faith as well as the attack on the independence of the judiciary being unwarranted and devoid of any support in law. After an intensive and rigorous study of all the legal aspects of the case, the Supreme Court dismissed the petition, the unconstitutionality of Batas Pambansa Blg. 129 not having been shown. It held that the enactment thereof was in answer to a pressing and urgent need for a major reorganization of the judiciary; that the attendant abolition of the inferior courts which shall cause their incumbents to cease from holding office does not impair the independence of the judiciary and the security of tenure guarantee as incumbent justices and judges with good performance and clean records can be named anew in legal contemplation without interruption in the continuity of their service; that the provision granting the President authority to fix the compensation and allowances of the Justices and judges survives the test of undue delegation of legislative power, a standard having been clearly adopted therefor; that the reorganization provided by the challenged Act will be carried out in accordance with the President’s constitutional duty to take care that the laws be faithfully executed, and the judiciary’s commitment to guard constitutional rights. The petition was dismissed. Associate Justice Claudio Teehankee dissented in a separate opinion; Justices Felix V. Makasiar and Venicio Escolin concurred with the main opinion;

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Justice Hermogenes Concepcion concurred in the result; Justices Antonio P. Barredo, Ramon C. Aquino, Ramon C. Fernandez, Juvenal K Guerrero, Ameurfina Melencio-Herrera and Vicente G. Ericta concurred in separate opinions; Justices Vicente Abad-Santos and Efren I. Plana submitted separate concurring and dissenting opinions. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; PARTIES; CAPACITY TO SUE; PETITIONERS’ LEGAL STANDING DEMONSTRATED. — The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de Ia Llana is concerned, he certainly falls within the principle set forth in Justice Laurel’s opinion in People v. Vera, 65 Phil. 56 (1937). Thus: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." The other petitioners as members of the bar and officers of the court cannot be considered as devoid of "any personal and substantial interest" on the matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on Elections, L-40004, Jan. 31, 1975; "Then there is the attack on the standing of petitioners, as vindicating at most what they consider a public right and not protecting their rights as individuals. This is to conjure the specter of the public right dogma at an inhibition to parties intent on keeping public officials staying on the path of constitutionalism. As was so well put by Jaffe: `The protection of private right is an essential constituent of public interest and, conversely, without a well-ordered state there could be no enforcement of private rights. Private and public interests are, both in a substantive and procedural sense, aspects of the totality of the legal order.’ Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply demonstrated. 2. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980; ENACTMENT THEREOF IN ANSWER TO A PRESSING AND URGENT NEED; GOOD FAITH OBSERVED IN ITS ENACTMENT. — The enactment of Batas Pambansa Blg. 129 would firstly, result in the attainment "of more efficiency in the disposal of cases. Secondly, the improvement in the quality of justice dispensed by the courts is expected as a necessary consequence of the easing of the court’s dockets. Thirdly, the structural changes introduced in the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure, are designated to suit the court system to the exigencies of the present day Philippine society, and hopefully, of the foreseeable future." It may be observed that the volume containing the minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive study before the act was signed by the President on August 14, 1981. With such a background, it become quite manifest how lacking in factual basis is the allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is the good faith that characterized its enactment from its inception to the affixing of the Presidential signature.chanroblesvirtuallawlibrary 3. ID.; ID.; ID.; RESULTING ABOLITION OF COURTS IN GOOD FAITH, WITH DUE RECOGNITION OF THE SECURITY OF TENURE GUARANTEE; VALIDITY OF ABOLITION OF AN OFFICE, SETTLED RULE. — Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no

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infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr., L-28573, June 13, 1968, reiterated such a doctrine: "We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. . . . And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith." The above excerpt was quoted with approval in Bendanillo, Sr. v. Provincial Governor, L-28614, Jan. 17, 1974, two earlier cases enunciating a similar doctrine having preceded it. As with the offices in the other branches of the government, so it is with the Judiciary. The test remains whether the abolition is in good faith. As that element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more apparent. 4. ID.; ID; ID.; ENACTMENT THEREOF MAINTAINS UNIMPAIRED THE INDEPENDENCE OF THE JUDICIARY; TERMINATION BY VIRTUE OF THE ABOLITION OF THE OFFICE DOES NOT IMPAIR SECURITY OF TENURE; SUPREME COURT TO BE CONSULTED IN THE IMPLEMENTATION OF THE REORGANIZATION OF THE JUDICIARY. — Petitioners contend that the abolition of the existing Inferior Courts collides with the security of tenure enjoyed by incumbent Justices and judges under Article X, Section 7 of the Constitution. There was a similar provision the 1935 Constitution. It did not, however, go as far as conferring on this Tribunal the power to supervise administratively inferior courts. Moreover, this Court is empowered "to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal. "Thus it possesses the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. Removal is, of course, to be, distinguished from termination by virtue of the abolition of the office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the stand-point of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of ‘Inferior Courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the Judiciary. In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded, the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not render advisory opinions. No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power. Rather what is sought to be achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing the Inferior Courts, the power of removal of the present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernible except to those predisposed to view it with distrust. Moreover, such a construction would be in accordance with the basic

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principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred. There is an obvious way to do so. The principle that the Constitution enters into and forms part of every act to avoid any unconstitutional taint must be applied. 5. ID.; ID.; ID.; AUTHORITY OF THE PRESIDENT TO FIX THE COMPENSATION AND ALLOWANCES OF JUSTICES AND JUDGES NOT AN UNDUE DELEGATION OF LEGISLATIVE POWER; EXISTENCE OF A STANDARD TO AVOID THE TAINT OF UNDUE DELEGATION CLEAR. — Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is quite clear. The questioned provision reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges, Municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such compensation and allowances as may be authorized by the President along the guidelines set forth in Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." (Chapter IV, Sec. 41 of Batas Pambansa Blg. 129) The existence of a standard is thus clear. The basic postulate that underlies the doctrine of non-delegation is that it is the legislative body which is entrusted with the competence to make laws and to alter and repeal them, the test being the completeness of the statute in all its terms and provisions when enacted. As pointed out in Edu v. Ericta, L-32096, Oct. 24, 1970, "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repeal. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole."cralaw virtua1aw library 6. ID.; ID.; ID.; NO AMBIGUITY EXISTS IN THE EXECUTION OF THE REORGANIZATION LAW. — Another objection based on the absence in the statute of what petitioners refer to as a "definite time frame limitation" is equally bereft of merit. They ignore the categorical language of this provision: "The Supreme Court shall submit to the President, within thirty (30) days from the date of the effectivity of this Act, a staffing pattern for all courts constituted pursuant to this Act which shall be the basis of the implementing order to be issued by the President in accordance with the immediately succeeding section." (Sec. 43, Batas Pambansa Blg. 129) The first sentence of the next Section is even more categorical: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President." (Sec. 44, Batas Pambansa Blg. 129) Certainly petitioners cannot be heard to argue that the President is insensible to his constitutional duty to take care that the laws be faithfully executed. In the meanwhile, the existing Inferior Courts affected continue functioning as before, "until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office. "There is no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold office." No fear need be

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entertained by incumbents whose length of service, quality of performance, and clean record justify their being named anew, in legal contemplation without any interruption in the continuity of their service. It is equally reasonable to assume that from the ranks of lawyers, either in the government service, private practice, or law professors will come the new appointees. In the event that in certain cases a little more time is necessary in the appraisal of whether or not certain incumbents deserve reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its implementation by the Executive. There is pertinence to this observation of Justice Holmes that even acceptance of the generalization that courts ordinarily should not supply omissions in a law, a generalization qualified as earlier shown by the principle that to save a statute that could be done, "there is no canon against using common sense in construing laws as saying what they obviously mean." (Cf, Roschen v. Ward, 279 US 337, 339 [1929])chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 7. ID.; ID.; ID.; PARTICIPATION OF SEVERAL JUSTICES IN THE PREPARATION OF AN ALTERNATIVE PLAN FOR REORGANIZATION NOT OBJECTIONABLE; SUPREME COURT DIRECTLY INVOLVED WITH JUDICIAL REFORM. — On the morning of the hearing of the petition, petitioners sought to disqualify the Chief Justice and Associate Justices Ramon Aquino and Ameurfina Melencio-Herrera because the first named was the Chairman and the other two, members of the Committee on Judicial Reorganization. The motion was denied. It was made clear then and there that not one of the three members of the Court had any hand in the framing or in the discussion of Batas Pambansa Blg. 129. They were not consulted. They did not testify. The challenged legislation is entirely the product of the efforts of the legislative body. Their work was limited, as set forth in the Executive Order, to submitting alternative plan for reorganization. That is more in the nature of scholarly studies. Ever since 1973, this Tribunal has had administrative supervision over inferior courts. It has had the opportunity to inform itself as to the way judicial business is conducted and how it may be improved. Even prior to the 1973 Constitution, either the then Chairman or members of the Committee on Justice of the then Senate of the Philippines consulted members of the Court in drafting proposed legislation affecting the judiciary. It is not inappropriate to cite this excerpt from an article in the 1975 Supreme Court Review: "In the Twentieth century the Chief Justice of the United States has played a leading part in judicial reform. A variety of conditions have been responsible for the development of this role, and foremost among them has been the creation of explicit institutional structures designed to facilitate reform." Also: "Thus the Chief Justice cannot avoid exposure to and direct involvement in judicial reform at the federal level and, to the extent issues of judicial federalism arise, at the state level as well." (Fish, William Howard Taft and Charles Evan Hughes, 1975 Supreme Court Review 123) 8. ID.; ID.; ID.; GUARANTEE OF JUDICIAL INDEPENDENCE OBSERVED. — It is a cardinal article of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or impliedly certain powers. Those they exercise not for their own benefit but for the body politic. The Constitution does not speak in the language of ambiguity: "A public office is a public trust." (Art. XIII, Sec. I) That is more than a moral adjuration. It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is from that standpoint that the security of tenure provision to assure judicial independence is to be viewed. It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be

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inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. As thus viewed, it is not solely for their welfare. The challenged legislation was thus subjected to the most rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allows the erosion of that ideal so firmly embedded in the national consciousness. 9. ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE PRESERVED DESPITE THE REORGANIZATION OF INFERIOR COURTS. — At emphasized by former Chief Justice Paras in Ocampo v. Secretary of Justice, 57 O.G. 147(1955) "there is no surer guarantee of judicial independence than the God-given character and fitness of those appointed to the Bench. The judges may be guaranteed a fixed tenure of office during good behaviour, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the Judiciary will be nothing more than a myth or any empty ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress — we do not say unlimited but as herein exercised — to reorganize inferior courts."cralaw virtua1aw library 10. ID.; ID.; ID.; UPHOLDING THE CONSTITUTIONALITY THEREOF WILL NOT RESULT IN DELETERIOUS CONSEQUENCES TO THE ADMINISTRATION OF JUSTICE. — There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious consequences to the administration of justice. It does not follow that the abolition In good faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor should there be any fear that less than good faith will attend the exercise of the appointing power vested in the Executive. It cannot be denied that an independent and efficient Judiciary is something to the credit of any administration. Well and truly has it been said that the fundamental principle of separation of powers assumes, and justifiably so, that the three departments are as one in their determination to pursue the ideals and aspirations and to fulfill the hopes of the sovereign people as expressed in the Constitution. Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, 57 Phil. 600 (1932) said: "Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act." To that basic postulate underlying our constitutional system, this Court remains committed. BARREDO, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980 (BATAS PAMBANSA BLG. 129); JUDICIAL REORGANIZATION NOT CONTRARY TO THE INDEPENDENCE OF THE JUDICIARY PRINCIPLE. — It being conceded that the power to create or establish carries with it the power to abolish, and it is a legal axiom, or at least a pragmatic reality, that the tenure of the holder of an office must of necessity end when his office no longer exists, We have no alternative than to hold that petitioners’ invocation of the independence-of-thejudiciary principle of the Constitution is unavailing in the cases at bar. To insist that what Batas Pambansa 129 is doing is just a renaming, and not a substantial and actual modification or alteration of the present judicial structure or system, assuming a close scrutiny might somehow support such a conclusion, is pure wishful thinking, it being explicitly and

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unequivocally provided in the Section in question that said courts "are deemed abolished" and further, as if to make it most unmistakably emphatic, that "incumbents thereof shall cease to hold office." Dura lex, sed lex. 2. ID.; ID.; ID.; JUDICIAL REORGANIZATION, AN URGENT NEED; TWO-FOLD OBJECTIVES OF THE LAW ALIGNED WITH THE FOUNDATION OF THE PRINCIPLE OF INDEPENDENCE OF THe JUDICIARY. — Judicial reorganization becomes urgent and inevitable not alone because of structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force, but also when it becomes evident that a good number of those occupying positions in the judiciary, make a mockery of justice and take advantage of their office for selfish personal ends and yet, those in authority cannot expeditiously cope with the situation under existing laws and rules. It is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, for the most ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to all temptations of graft and corruption, including the usual importunings and the fearsome albeit improper pressures of the powers that be. I am certain that Filipino people feel happy that Batas Pambansa 129 encompasses both of these objectives which indeed are aligned with the foundation of the principle of independence of the judiciary.chanrobles law library 3. ID.; CONSTITUTION; CHARTER TIMELESS EXCEPT FOR ADOPTION OF MEASURES DURING VERY UNUSUAL INSTANCES; INTEGRITY OF THE FUNDAMENTAL LAW UNDIMINISHED THEREBY. — The Constitution is not just a cluster of high sounding verbiages spelling purely idealism and nobility in the recognition of human dignity, protection of individual liberties and providing security and promotion of the general welfare under a government of laws. The fundamental law of the land is a living instrument which translates and adapts itself to the demands of obtaining circumstances. It is written for all seasons, except for very unusual instances that human ratiocination cannot justify to be contemplated by its language even if read in its broadest sense and in the most liberal way. Verily, it is paramount and supreme in peace and in war, but even in peace grave critical situations arise demanding recourse to extraordinary solutions. Paraphrasing the Spanish adage, "Grandes males, grandes remedios," such inordinary problems justify exceptional remedies. And so, history records that in the face of grave crises and emergencies, the most constitutionally idealistic countries have, at one time or another, under the pressure of pragmatic considerations, adopted corresponding realistic measures, which perilously tether along the periphery of their Charters, to the extent of creating impressions, of course erroneous, that the same had been transgressed, although in truth their integrity and imperiousness remained undiminished and unimpaired. 4. ID.; JUDICIARY; JUDICIAL REORGANIZATION; BATAS PAMBANSA BLG. 129 CONSTITUTIONALLY PERMISSIBLE FOR THE ATTAINMENT OF THE OBJECTS IT SEEKS TO PURSUE. — If indeed there could be some doubt as to the correctness of this Court’s judgment that Batas Pambansa 129 is not unconstitutional, particularly its Sec. 44, I am convinced that the critical situation of our judiciary today calls for solutions that may not in the eyes of some conform strictly with the letter of the Constitution but indubitably justified by its spirit and intent. The Charter is not just a construction of words to whose literal ironclad meanings we must feel hidebound, without regard to every Constitution’s desirable inherent nature of adjustability and adaptability to prevailing situations so that the spirit and fundamental intent

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and objectives of the framers may remain alive. Batas Pambansa 129 is one such adaptation that comes handy for the attainment of the transcendental objectives it seeks to pursue. While, to be sure, it has the effect of factually easing out some justices and judges before the end of their respective constitutional tenure sans the usual administrative investigation, the desirable end is achieved thru means that, in the light of the prevailing conditions, is constitutionally permissible. 5. ID.; ID.; ID.; BATAS PAMBANSA 129 DOES NOT RENDER MEANINGLESS THE INDEPENDENCE OF THE JUDICIARY; ABOLITION OF EXISTING COURTS ALLOWED BY THE CONSTITUTION. — Notwithstanding this decision, the independence of the judiciary in the Philippines is far from being insubstantial, much less meaningless and dead. Batas Pambansa 129 has precisely opened our eyes to how, despite doubts and misgivings, the Constitution can be so construed as to make it possible for those in authority to answer the clamor of the people for an upright judiciary and overcome constitutional roadblocks more apparent than real.chanrobles.com:cralaw:red 6. ID.; ID.; ID.; PRESIDENTIAL APPOINTEES TO THE BENCH WILL BE CAREFULLY CONSIDERED. — By this decision, the Court has in factual effect albeit not in constitutional conception yielded generally to the Batasang Pambansa, and more specifically to the President, its own constitutionally conferred power of removal of judges. Section 44 of the Batasan Act declares that all of them shall be deemed to have ceased to hold office, leaving it to the President to appoint those whom he may see fit to occupy the new courts. Thus, those who will not be appointed can be considered as "ceasing to hold their respective offices," or, as others would say they would be in fact removed. How the President will make his choice is beyond Our power to control. But even if some may be eased out even without being duly informed of the reason therefor, much less being given the opportunity to be heard, the past actuations of the President on all matters of deep public interest should serve as sufficient assurance that when he ultimately acts, he will faithfully adhere to his solemn oath "to do justice to every man," hence, he will equip himself first with the fullest reliable information before he acts. AQUINO, J., concurring:chanrob1es virtual 1aw library 1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; DECLARATORY RELIEF AND PROHIBITION NOT THE PROPER REMEDY TO TEST THE CONSTITUTIONALITY OF A LAW; NO JUSTICIABLE CONTROVERSY IN CASE AT BAR. — The petition should have been dismissed outright because this Court has no jurisdiction to grant declaratory relief and prohibition is not the proper remedy to test the constitutionality of the law. The petition is premature. No jurisdictional question is involved. There is no justiciable controversy wherein the constitutionality of the law is in issue. It is presumed to be constitutional. The lawmaking body before enacting it looked into the constitutional angle. 2. ID.; ID.; ID.; PARTIES; PETITIONERS WITHOUT PERSONALITY TO ASSAIL THE CONSTITUTIONALITY OF THE JUDICIARY REORGANIZATION LAW. — Seven of the eight petitioners are practising lawyers. They have no personality to assail the constitutionality of the law even as taxpayers. The eighth petitioner, Gualberto J. de la Llana, a city judge, has no cause of action for prohibition. He is not being removed from his position. 3. CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL REORGANIZATION; BATAS PAMBANSA BLG.

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129; ENACTMENT THEREOF IN GOOD FAITH. — The Judiciary Reorganization Law was enacted in utmost good faith and not "to cloak an unconstitutional and evil purpose." In enacting the said law, the lawmaking body acted within the scope of its constitutional powers and prerogatives. GUERRERO, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980; OBJECTIVES. — The institutional reforms and changes envisioned by the law are clearly conducive to the promotion of national interests. The objectives of the legislation, namely: (a) An institutional restructuring by the creation of an Intermediate Appellate Court, thirteen (13) Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts; (b) A re-apportionment of jurisdiction geared towards greater efficiency; (c) A simplification of procedures; and (d) The abolition of the inferior courts created by the Judiciary Act of 1948 and other statutes, as approved by the Congress of the Philippines are undoubtedly intended to improve the regime of justice and thereby enhance public good and order. Indeed, the purpose of the Act as further stated in the Explanatory Note, which is "to embody reforms in the structure, organization and composition of the Judiciary, with the aim of improving the administration of justice, of decongesting judicial dockets, and coping with the more complex problems on the present and foreseeable future" cannot but "promote the welfare of society, since that is the final cause of law." (Cardozo, the Nature of the Judicial Process, p. 66) 2. ID.; ID.; ID.; LAW CONSTITUTIONAL FROM THE STANDPOINT OF GENERAL UTILITY AND FUNCTIONAL VALUE. — From the standpoint of the general utility and functional value of the Judiciary Reorganization Act, there should be no difficulty, doubt or disbelief in its legality and constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The notorious and scandalous congestion of court dockets is too well-known to be ignored as are the causes which create and produce such anomaly. Evident is the need to look for devices and measures that are more practical, workable and economical. 3. ID.; ID.; ID.; ENACTMENT THEREOF PRESUMED REGULAR AND DONE IN GOOD FAITH. — In the light of the known evils and infirmities of the judicial system, it would be absurd and unreasonable to claim that the legislators did not act upon them in good faith and honesty of purpose and with legitimate ends. It is presumed that official duty has been regularly performed. The presumption of regularity is not confined to the acts of the individual officers but also applies to the acts of boards, such as administrative board or bodies, and to acts of legislative bodies. Good faith is always to be presumed in the absence of proof to the contrary, of which there is none in the case at bar. It could not be otherwise if We are to accord as We must, full faith and credit to the lawmakers’ deep sense of public service and the judicious exercise of their high office as the duly-elected representatives of the people. 4. ID.; ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS; SUPREME COURT CANNOT INQUIRE INTO THE WISDOM OF THE LAW. — In Morfe v. Mutuc, L-20387, Jan. 31, 1968, the Supreme Court held: "It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern. The Courts are not supposed to override legitimate policy and . . . never inquire into the wisdom of the law." Chief Justice Fernando who penned the Morfe decision writes in The Constitution of the Philippines that while" (i)t is thus settled, to paraphrase Chief

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Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of action taken, may be the basis for declaring a statute invalid," he adds that it is "useful to recall what was so clearly stated by Laurel that ‘the Judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.’" In any case, petitioners have not shown an iota of proof of bad faith. There is no factual foundation of bad faith on record. I do not consider the statement in the sponsorship speech for Cabinet Bill No. 42 of Minister of Justice Ricardo J. Puno that the Bill would be a more efficient vehicle of "eliminating incompetent and unfit Judges" as indicative of impermissible legislative motive. 5. ID.; ID.; ID.; SECURITY OF TENURE; NATURE AND CONCEPT OF A PUBLIC OFFICE. — The Justices and judges directly affected by the law, being lawyers, should know or are expected to know the nature and concept of a public office. It is created for the purpose of effecting the ends for which government has been instituted, which are for the common good, and not the profit, honor or private interest of any one man, family or class of men. In our form of government, it is fundamental that public offices are public trust, and that the person to be appointed should be selected solely with a view to the public welfare. In the last analysis, a public office is a privilege in the gift of the State. 6. ID.; ID.; ID.; ID.; ID.; NO VESTED INTEREST EXISTS IN AN OFFICE; JUDICIAL APPOINTMENT TERMINATES WITH THE ABOLITION OF THE COURT. — There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. When an office is created by the Constitution, it cannot be abolished by the legislature, but when created by the State under the authority of the Constitution, it may be abolished by statute and the incumbent deprived of his office. Acceptance of a judicial appointment must be deemed as adherence to the rule that "when the court is abolished, any unexpired term is abolished also. The Judge of such a court takes office with that encumbrance and knowledge. The Judge’s right to his full term and his full salary are not dependent alone upon his good conduct, but also upon the contingency that the legislature may for the public good, in ordaining and establishing the courts, from time to time consider his office unnecessary and abolish it. 7. ID.; ID.; ID.; REMOVAL AND RE-APPOINTMENT OF JUDGES UNDER THE JUDICIARY REORGANIZATION ACT, A PRESIDENTIAL POWER AND PREROGATIVE. — The removal from office of an incumbent is merely incidental to the valid act of abolition of the office as demanded by the superior and paramount interest of the people. The bad and the crooked judges must be removed. The good and the straight, sober judges should be reappointed but that is the sole power and prerogative of the President who, I am certain, will act according to the best interest of the nation and in accordance with his solemn oath of office "to preserve and defend its Constitution, execute its laws, do justice to everyone." There and then the proper balance between the desire to preserve private interest and the desideratum of promoting the public good shall have been struck.chanroblesvirtual|awlibrary 8. ID.; ID.; ID.; CONSTRUCTION IN FAVOR OF THE CONSTITUTIONALITY OF THE LAW TO BE ADOPTED. — The Supreme Court has been called the conscience of the Constitution. It may be the last bulwark of constitutional government. It must, however, be remembered "that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a

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degree as courts." (Missouri, K. & T. Co. v. May, 194 U.S. 267, 270) The responsibility of upholding the Constitution rests not on the courts alone but on the legislatures as well. It adheres, therefore, to the well-settled principle that "all reasonable doubts should be resolved in favor of the constitutionality of a statute" for which reason it will not set aside a law as violative of the Constitution "except in a clear case." (People v. Vera [1937], 65 Phil. 56). 9. ID.; ID.; ID.; SOCIAL JUSTIFICATION AND THE FUNCTIONAL UTILITY OF THE LAW SUFFICIENT TO UPHOLD ITS CONSTITUTIONALITY. — I view the controversy presented as a conflict of opinions on judicial independence, whether impaired or strengthened by the law; on reorganization of the courts, whether abolition of office or removal therefrom; and on delegation of legislative power, whether authorized or unauthorized. Without detracting from the merits, the force and brilliance of their advocacies based on logic, history and precedents, I choose to stand on the social justification and the functional utility of the law to uphold its constitutionality. In the light of contemporaneous events from which the New Republic emerged and evolved new ideals of national growth and development, particularly in law and government, a kind or form of judicial activism, perhaps similar to it, is necessary to justify as the ratio decidendi of Our judgment. DE CASTRO, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; CREATION AND ORGANIZATION OF COURTS, A CONSTITUTIONAL PREROGATIVE OF THE LEGISLATURE. — A creation and organization of courts inferior to the Supreme Court is a constitutional prerogative of the legislature. This prerogative is plenary and necessarily implies the power to reorganize said courts, and in the process, abolish them to give way to new or substantially different ones. To contend otherwise would be to forget a basic doctrine of constitutional law that no irrepealable laws shall be passed.chanroblesvirtual|awlibrary 2. ID.; ID.; ID.; POWER TO CREATE STATUTORY COURTS INCLUDES THE POWER TO ABOLISH THEM; JUDICIAL SECURITY OF TENURE NOT A LEGAL IMPEDIMENT TO THE EXERCISE THEREOF. — The power to create courts and organize them is necessarily the primary authority from which would thereafter arise the security of tenure of those appointed to perform the functions of said courts. In the natural order of things, therefore, since the occasion to speak of security of tenure of judges arises only after the courts have first been brought into being, the right to security of tenure takes a secondary position to the basic and primary power of creating the courts to provide for a fair and strong judicial system. If the legislature, in the exercise of its authority, deems it wise and urgent to provide for a new set of courts, and in doing so, it feels the abolition of the old courts would conduce more to its objective of improving the judiciary and raising its standard, the matter involved is one of policy and wisdom into which the courts, not even the Supreme Court, cannot inquire, much less interfere with. By this secondary position it has to the primary power of the legislature to create courts, the security of tenure given to the incumbents should not be a legal impediment to the exercise of that basic power of creating the statutory courts which, by necessary implication, includes the power to abolish them in order to create new ones. This primary legislative power is a continuing one, and the resultant right of security of tenure of those appointed to said courts could not bring about the exhaustion of that power. Unquestionably, the legislature can repeal its own laws, and that power can never be exhausted without, as a consequence, violating a fundamental precept of constitutional and representative government that no irrepealable laws shall be passed.

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3. ID.; ID.; JUDICIARY REORGANIZATION ACT OF 1980; AN EFFECTIVE AND EFFICIENT SYSTEM OF ADMINISTRATION OF JUSTICE MORE IMPORTANT THAN THE SECURITY OF TENURE OF JUDGES. — The passage of the Judiciary Reorganization Act of 1980 is no more than the exercise of the power vested by the Constitution on the legislative body of the Republic. That power carries with it the duty and responsibility of providing the people with the most effective and efficient system of administration of justice. This is by far of more imperative and transcendental importance than the security of tenure of judges which, admittedly, is one of the factors that would conduce to independence of the judiciary — but first of all, a good, efficient and effective judiciary. A judiciary wanting in these basic qualities does not deserve the independence that is meant only for a judiciary that can serve best the interest and welfare of the people which is the most primordial and paramount consideration, not a judiciary in which the people’s faith has been eroded, a condition which the security of tenure, in some instances, may even be contributory. 4. ID.; ID.; ID.; ID.; INFRINGEMENT OF THE RIGHT OF SECURITY OF TENURE JUSTIFIED BY THE EXERCISE OF POLICE POWER. — When two interests conflict as what had given rise to the present controversy — the duty of the legislature to provide society with a fair, efficient and effective judicial system, on one hand, and the right of judges to security of tenure, on the other, the latter must of necessity yield to the former. One involves public welfare and interest more directly and on a greater magnitude than the right of security of tenure of the judges which is, as is easily discernible, more of a personal benefit to just a few, as only the judge affected could seek judicial redress of what he conceives to be its violation. Herein lies the propriety of the exercise of "police power" of the State, if this concept which underlies even the Constitution, has to be invoked as a constitutional justification of the passage of the Act in question. That is, if a conflict between the primary power of the legislature to create courts, and mere consequential benefit accorded to judges and justices after the creation of the courts is indeed perceivable, which the writer falls to see, or, at least, would disappear upon a reconciliation of the two apparently conflicting interests which, from the above disquisition, is not hard to find. It is, without doubt, in the essence of the exercise of police power that a right assessable by individuals may be infringed in the greater interest of the public good and general welfare. This is demonstrated in how the rights and freedoms enumerated in the Bill of Rights enjoyable by the entire people, not just be a handful in comparison, are made subject to the lawful exercise of the police power of the State. 5. ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS DOES NOT AMOUNT TO UNLAWFUL REMOVAL OF JUDGES. — The provision of Article XVII, Section 10 of the Constitution gives to judicial officials no more than a guarantee that their retirement age as fixed in the Constitution shall not be alterable at mere legislative pleasure. The equivalent provision in the 1935 Constitution was inserted for the first time because the retirement age before then was provided merely by statute not by the Constitution. If it comes to their removal or suspension, what gives them constitutional protection is the aforequoted provision which does not contemplate abolition of office when done in good faith, for removal implies the existence of the office, not when it is abolished. As has been held, abolition of office for no reason related to public welfare or for the good of the service, let alone when done in bad faith, amounts to an unlawful removal. The abolition of the courts as declared in the Act as a result of a reorganization of the judiciary, as the title of the law curtly but impressively announces, can by no means, from any viewpoint, be so branded. And whether by said reorganization, the present courts would be deemed abolished, as the law expresses such an unmistakable intent,

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the matter is one for the sole and exclusive determination of the legislature. It rests entirely on its discretion whether by the nature and extent of the changes it has introduced, it has done enough to consider them abolished. To give the Supreme Court the power to determine the extent or nature of the changes as to their structure, distribution and jurisdiction, before the clear intent to abolish them, or to declare them so abolished, is given effect, would be to allow undue interference in the function of legislation. This would be contrary to the primary duty of courts precisely to give effect to the legislative intent as expressed in the law or as may be discovered therefrom. 6. ID.; ID.; ID.; ID.; JUDICIAL INQUIRY INTO THE ABOLITION OF COURTS NOT PROPER. — The abolition of the courts is a matter of legislative intent into which no judicial inquiry is proper, except perhaps if that intent is so palpably tainted with constitutional repugnancy, which is not so in the instant case. We have, therefore, no occasion to speak of removal of judges when the reorganization of the judiciary would result in the abolition of the courts other than the Supreme Court and the Court of Tax Appeals. Hence, the provision of the Constitution giving to the Supreme Court power to dismiss a judge by a vote of eight justices does not come into the vortex of the instant controversy. Its possible violation by the assalied statute cannot happen, and may, therefore, not constitute an argument against the constitutionality of the law.chanroblesvirtuallawlibrary:red 7. ID.; ID.; ID.; ARBITRARINESS IN THE IMPLEMENTATION OF THE LAW SUBJECT TO JUDICIAL REDRESS. — Only in the implementation of the law may there possibly be a taint of constitutional repugnancy, as when a judge of acknowledged honesty, industry and competence is separated, because an act of arbitrariness would thereby be committed, but the abolition of the courts as declared by the law it not by itself or per se unconstitutional. Consequently, the law, the result of serious and concerned study by a highly competent committee, deserves to be given a chance to prove its worth in the way of improving the judiciary. If in its implementation any one, if at all, feels aggrieved, he can always seek judicial redress, if he can make out a case of violation of his right of security of tenure with uncontrovestible clarity, as when the separation is very arbitrary in the peculiar circumstances of his case, for an act of arbitrariness, under any constitution, is unpardonable. 8. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; DISMISSAL OF A PREMATURE PETITION. — The petition should be dismissed for being premature. It asks this Court to exercise its power of judicial inquiry, the power to declare a law unconstitutional when it conflicts with the fundamental law (People v. Vera, 63 Phil. 36). This power has well-defmed limits, for it can be exercised only when the following requisites are present, to wit: (1) There must be an actual case or controversy; (2) The question of constitutionality must be raised by the proper party; (3) He should do so at the earliest opportunity; and (4) The determination of the constitutionality of the statute must be necessary to a final determination of the case. The petition does not present as actual controversy nor was it filed by the proper parties. 9. ID.; ID.; ID.; ID.; PETITIONERS WITHOUT LEGAL PERSONALITY TO QUESTION THE CONSTITUTIONALITY OF THE JUDICIARY REORGANIZATION LAW. — The main ground for which the constitutionality of the Judiciary Reorganization Act of 1980 is assailed is that it is violative of the security of tenure of justices and judges. The only persons who could raise the question of constitutionality of the law, therefore, are the actual incumbents of the courts who would be separated from the service upon the abolition of the courts affected by the law, on the theory as advanced by petitioners that their judicial security of tenure would be violated.

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Olongapo City Judge de la Llana, the only judge among the petitioners, has not been separated from the service. Nor is his separation already a certainty, for he may be appointed to the court equivalent to his present court, or even promoted to a higher court. Only when it has become certain that his tenure has been terminated will an actual controversy arise on his allegation of a fact that has become actual, not merely probable or hypothetical. The present petition may neither be allowed as a taxpayer suit. A taxpayer may bring an action to raise the question of constitutionality of a statute only when no one else can more appropriately bring the suit to defend a right exclusively belonging to him, and, therefore, would localize the actual injury to his person, and to no other. For a "proper" party to invoke the power of judicial inquiry, as one of the requisites in the exercise of such power, does not mean one having no better right, one more personalized, than what he has as a member of the public in general. With the incumbent judges undoubtedly being the ones under petitioners’ theory, who would suffer direct and actual injury, they should exclude mere taxpayers who cannot be said to suffer as "direct" and "actual" an injury as the judges and justices by the enforcement of the assailed statute, from the right to bring the suit. 10. ID.; ID.; ID.; JUDICIARY REORGANIZATION LAW OF 1980 NOT UNCONSTITUTIONAL. — It would not be proper to declare the law void at this stage, before it has even been given a chance to prove its worth, as the legislature itself and all those who helped by their exhaustive and scholarly study, felt it to be an urgent necessity, and before any of the proper parties who could assail its constitutionality would know for a fact, certain and actual, not merely probable or hypothetical, that they have a right violated by what they could possibly contend to be unconstitutional enforcement of the law, not by a law that is unconstitutional unto itself. The writer is for giving the law a chance to be put into application so as not to douse great popular expectations for the count to regain their highest level of efficiency and reputation for probity. Inevitably, this is to be so since only when the law is fully implemented will all the courts affected be declared abolished, undoubtedly to avoid an interregnum when the country is without any court, except the Supreme Court, the Court of Tax Appeals and the Sandigan. Only then will it be known whether an actual controversy would arise because any of the incumbents have been left out in the restructured judiciary.chanrobles virtual lawlibrary 11. ID.; ID.; ID.; ID.; INTERPRETATION THAT UPHOLDS THE CONSTITUTIONALITY OF THE LAW SHOULD PREVAIL. — A law should, by all reasonable intendment and feasible means, be saved from the doom of unconstitutionality, the rule corollary thereto being that if a law is susceptible to two interpretations, one of which would make it constitutional, that interpretation should be adopted that will not kill the law. 12. ID.; ID.; ID.; ID.; ADEQUATE REMEDY IN LAW AVAILABLE TO THOSE WHO MAY BE INJURED THEREBY. — While in the implementation of the law, constitutional repugnancy may not entirely be ruled out, a categorical ruling hereon not being necessary or desirable at the moment, the law itself is definitely not unconstitutional. Any of the incumbent judges who feel injured after the law shall have been implemented has adequate remedy in law, with full relief as would be proper. But surely, the benefits envisioned by the law in the discharge of one of the basic duties of government to the people — the administration of justice — should not be sacrificed, as it would be, if the law is, as sought in the present petition, declared void right now, on the claim of a few of being allegedly denied a right, at best of doubtful character, for the claim would seem to rest on an unsupportable theory that they have a vested right to a public office.

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13. ID.; ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 NOT SELF-EXECUTORY; REORGANIZATION LAW DISTINGUISHED FROM REPUBLIC ACT 1186. — The law in question is not self-executing in the sense that upon its effectivity, certain judges and justices cease to be so by direct action of the law. This is what distinguishes the Act in question from R.A. No. ll86 involved in the case of Ocampo v. Secretary of Justice, 50 O.G. 147 which by its direct action, no act of implementation being necessary, all the judges whose positions were abolished, automatically ceased as such. The Act in question, therefore, is not as exposed to the same vulnerability to constitutional attack as R.A. No. 1186 was. Yet by the operation of the Constitution with its wise provision on how a law may be declared unconstitutional, R.A. No. 1186 stood the test for it to be enforced to the fullness of its intent, which was, as in the law under consideration, identified with public interest and general welfare, through a more efficient and effective judicial system as the Judiciary Reorgarnization Act of 1980 seeks to establish. 14. ID.; ID.; ID.; ID.; ACHIEVEMENT OF THE PRIMARY PURPOSE OF IMPROVING THE JUDICIARY TIlE PREVAILING FACTOR IN UPHOLDING THE CONSTITUTIONALITY OF THE LAW. — The question before this Court is a simple matter of choosing between protecting some judges from possible separation, as the implementation of the law to achieve its primary purpose of improving the judiciary may have to result in, or serving the interest of the entire society through an honest, efficient and effective judiciary. For, it is unthinkable that what is for the good of the people as a whole could have been meant by the Constitution to be sacrificed for the sake of only a few. The greatest good for the greatest number is an unwritten rule, more firm and enduring than any of the postulates spread in our written Constitution. MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980; LEGISLATIVE POWER TO ABOLISH COURTS CO-EXTENSIVE WITH THE POWER TO CREATE THEM. — It is a fundamental proposition that the legislative power to create courts ordinarily includes the power to organize and to reorganize them, and that the power to abolish courts is generally co-extensive with the power to create them. The power to abolish was not intended to be qualified by the permanence of tenure. (Opinion of Chief Justice Ricardo Paras in Ocampo v. Secretary of Justice, 51 O.G. 147 [1955], citing McCulley v. State, 53 SW 134 Halsey v. Gaines, 2 Lea 316). The right of Judges to hold office during good behavior until they reach the age of 70 years, or become incapacitated to discharge the duties of their office, does not deprive Congress of its power to abolish, organize or reorganize inferior courts. (Brillo v. Enage, 94 Phil. 732, 735, citing Zandueta v. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub. Officer, 904-5). Judges of those courts take office with that encumbrance and knowledge. 2. ID.; ID.; ID.; TENURE OF JUDGES AND TENURE OF COURTS DISTINGUISHED. — Section 1, Article X refers to the "Judiciary" as a fundamental department of Government, Section 7 of the same Article refers to the tenure of office of "individual" Judges (inclusive of Justices of inferior Courts); that is to say, tenure of office is a matter concerning the individual Judge. This "individuality" character of Section 7 is supported by the clause that the Supreme Court has the power to discipline individual judges of inferior courts. 3. ID.; ID.; LEGISLATIVE EXERCISE OF THE POWER TO REORGANIZE COURTS NOT HAMPERED BY THE SECURITY OF TENURE GUARANTEE; JUDGES ARE ENTAILED TO THEIR COURTS BUT COURTS ARE NOT ENTAILED TO THEIR JUDGES. — A legislature is not bound to

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give security of tenure to courts. Courts can be abolished. In fact, the entire judicial system can be changed. If that system can no longer admit of change, woe to the wheels of progress and the imperatives of growth in the development of the Judiciary. To hold that tenure of judges is superior to the legislative power to reorganize is to render impotent the exercise of that power. Under Section 7, Article X, Judges are entailed to their count, from which they cannot be separated before retirement age except as a disciplinary action for bad behavior. Under Section 1, Courts are not entailed to their judges, because the power of the legislative to establish inferior court presupposes the power to abolish those courts. If an inferior court is abolished, the judge presiding that court will necessarily have to lose his position because the abolished court is not entailed to him. 4. ID.; ID.; ID.; ID.; CONSTITUTIONAL GUARANTEE OF TENURE OF JUDGES APPLIES ONLY AS THEIR COURTS EXIST. — The constitutional guarantee of tenure of Judges applies only as their Courts exist. As long as those Courts exist, the Judges cannot be ousted without just cause; that is the client of the constitutional provision relative to security of tenure of Judges. Upon declaration of the completion of the reorganization as provided for in the Reorganization Act, the affected Courts "shall be deemed automatically abolished." There being no Courts, there are no offices for which tenure of Judges may be claimed. By the abolition of those offices, the rights to them are necessarily extinguished (Manalang v. Quitoriano, 94 Phil. 903 [(1954)]. 5. ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 AN ANSWER TO AN URGENT PUBLIC NEED; GOOD FAITH IN THE ENACTMENT THEREOF PRESUMED. — The challenged law was enacted by the Batasang Pambansa in response to an urgent and pressing public need and not for the purpose of affecting adversely the security of tenure of all Judges or legislating them out to the detriment of judicial independence. It should not be said of the Batasang Pambansa that its power of abolition of Courts has been used to disguise an unconstitutional and evil purpose to defeat the security of tenure of Judges. The Judiciary Reorganization Act of 1981 sufficiently complies with the bona fide rule in the abolition of public office. Besides, every presumption of good faith in its actuations must be accorded a coordinate and co-equal branch of government, supreme within the limits of its own sphere, until that presumption is clearly overcome. There is no showing that the Reorganization Act was motivated for personal or political reasons as to justify the interference by the Court (Garvey v. Lowell, 109 Mass. 47, 85 N.E. 182, 127 A.S.R. 468; State v. Eduards, 40 Mont. 287; 106 Pat. 695, 19 R.C.L. 236; Llanto v. Dimaporo, 16 5CRA 599 [[1966]). Public interest and public good, as the legislative body views it, must be balanced with tenure of Judges, which is an individual right. Reverting to Section 1 and Section 7 of Article X, the former is the weightier, because the "Judiciary" is of more importance to the welfare of the country than the tenure of office of an individual Judge. If a Judge is removed without cause, there can be damage to the public welfare to some extent, but maintenance of a Court that does not meet the requirement of progressive Government, can cause incalculable prejudice to the people. 6. ID.; ID.; ID.; REORGANIZATION OF THE JUDICIAL SYSTEM DOES NOT CONFLICT WITH THE SUPREME COURT’S POWER TO DISCIPLINE JUDGES. — Where the legislature has willed that the Courts be abolished, the power to discipline cannot post an obstacle to the abolition. The power to discipline can come into play only when there is removal from an existing judicial office, but not when that office is abolished. The reorganization of the judicial system with the abolition of certain courts is not an exercise of the power to discipline the Judges of the abolished courts.chanrobles.com.ph : virtual law library

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7. ID.; ID.; ID.; ABOLITION OF COURTS NOT A DEPRIVATION OF DUE PROCESS OF LAW. — The abolition would be no deprivation either of due process of law. A public office cannot be regarded as the "property" of the incumbent. A pubily office is not a contract (Segovia v. Noel, 47 Phil. 543 [[1925]). A public office is a public trust (Section 1, Article XIII, 1973 Constitution). It is a privilege in the gift of the State (Brown v. Russel, 166 Mast. 14, 43 NE 1005, 32 LRA 253 cited also in Tañada & Carreon, Political Law of the Philippines, Vol. 2, p. 537). The officers are the servants of the people and not their rulers (22 R.C.L. 378-379, cited in Martin, Administrative Law, Law on Public officers and Election Law, p. 112, 1970 ed.). Besides, it bears stressing that there is no removal from office but abolition of the office itself. 8. ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 ENACTED IN THE PURSUIT OF DEVELOPMENTAL GOALS WITHIN THE JUDICIARY. — The questioned statute is in keeping with major reforms in other departments of government. "The thrust is on development." It is "the first major reorganization after four generations." It does not provide for a piecemeal change, which could be ineffective. It goes to the roots and does not just scratch the surface of our judicial system. Its main objectives are an improved administration of justice, the "attainment of more efficiency in the disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not send to the proper meting out of justice." These aims are policy matters of necessity in the pursuit of developmental goals within the judiciary. 9. ID.; ID.; ID.; INNOVATIVE FEATURES CONTAINED IN THE REORGANIZATION LAW. — There are innovative features in the Act that commend themselves: (a) the confusing and illogical areas of concurrent jurisdiction between trial Courts have been entirely eliminated; (b) Under Section 39, there is a uniform period for appeal of fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from; a record on appeal is no longer required to take an appeal. The entire original record is now to be transasitted; (c) Under Section 40, in deciding appealed cases, adoption by reference of findings of fact and conclusions of law as set forth in the decision, order, or resolution of decisions in appealed cases; (d) Section 42 provides for a monthly longevity pay equivalent to 5% of the monthly basic pay for Justices and Judges of the courts herein created for each five years of continuous, efficient, and meritorious service rendered in the Judiciary, Provided that, in no case shall the total salary of each Justice or Judge concerned, after this longevity pay is added, exceed the salary of the Justice or Judge next in rank. Thus, Justices and Judges who may not reach the top, where unfortunately there is not enough room for all, may have the satisfaction of at least approximating the salary scale of those above him depending on his length of service. 10. ID.; ID.; ID.; SAFEGUARDS TO BE UNDERTAKEN IN THE IMPLEMENTATION OF THE LAW. — While the law itself as written is constitutional, the manner in which it will be administered should not be tainted with unconstitutionality (Myles Salt Co. v. Board of Commrs., 239 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an unconstitutional exercise of power the following safeguards are recommended and/or expected to be undertaken: (a) the President can be expected to indicate a reasonable time frame for the completion of the reorganization provided for in the Act and the issuance of the corresponding implementing order; (b) appointments and their effectivity should be simultaneous with, or as close as possible, to the declaration by the President of the completion of the reorganization under Section 44 to avoid any detriment to the smooth and continuous functioning of the judicial machinery; and (c) the services of those not separated should be deemed uninterrupted, as

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recommended by the Committee on Judicial Reorganization. 11. ID.; ID.; ID.; STAFFING PATTERN; NAMES OF JUDGES TO BE EXCLUDED THEREFROM; EXECUTIVE CHOICE TO BE RESPECTED. — Justice Herrera disagrees with the suggestion of one of the amici curiae that the staffing pattern be made to include the names of Judges. The staffing pattern for Judges it already clearly and explicitly provided in the law itself which enumerates the various Judges and Justices in their hierarchical order. Furthermore, to include she superior positions of Judges would depart from the traditional concept of a staffing pattern, which refers more to personnel organization and corresponding salaries of inferior employees. It is also constitutionally objectionable in that it would interfere with the prerogative of appointment intrinsically executive in nature (Guevara v. Inocentes, 16 SCRA 379 [1966]; Government of the Philippines v. Springer, 50 Phil. 259 [1927]). The President may not be deprived of, nor be limited in, the full use of his discretion in the appointment of persons to any public office. Nothing should so trench upon executive choice as to be, in effect, judicial designation. 12. ID.; ID.; ID.; NEW APPOINTMENTS TO STRENGTHEN THE JUDICIAL SYSTEM. — Reliance can be placed on the good faith of the President that all the deserving, upon considerations of "efficiency, integrity, length of service and other relevant factors," shall be appointed to a strengthened and revitalized judicial system in the interest of public service; that appointments will not be unduly delayed, and that appointees will be evaluated thoroughly to ensure quality and impartiality in the men and women who will keep vigil over our judicial ramparts.chanroblesvirtuallawlibrary ERICTA, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW; LEGISLATIVE POWER TO CREATE COURTS INCLUDES THE POWER TO ABOLISH THE SAME. — The constitution grants to the Batasang Pambansa the power to create courts inferior to the Supreme Court (Article X, Section 1). All existing inferior courts were created by law. No law is irrepealable. The power to create an office includes the power to abolish the same. (Urgelio v. Osmeña, 9 SCRA 317; Maca v. Ochave, 20 SCRA 142) 2. ID.; ID.; ID.; ID.; REMOVAL FROM OFFICE AND ABOLITION OF OFFICE, DISTINGUISHED. — Security of tenure cannot be invoked when there is no removal of a public officer or employee but an abolition of his office. (Manalang v. Quitoriano, 94 Phil. 903; Cruz v. Primicias, 23 SCRA 998; Baldoz v. Office of the President, 78 SCRA 334, 362). A distinction should be made between removal from office and abolition of an office. Removal implies that the office subsists after ouster, while, in abolition, the office no longer exists thereby terminating the right of the incumbent to exercise the rights and duties of the office. (Canonigo v. Ramiro, 31 SCRA 278) 3. ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS PASSES THE TEST OF GOOD FAITH. — The power of the legislative branch of the government to abolish courts inferior to the Supreme Court has long been established. (Ocampo v. Secretary of Justice, 31 O.G. 147) What is only needed is that the abolition passes the test of good faith. It need only be shown that said abolition of the courts is merely incidental to a bona fide reorganization. (Urgelio v. Osmeña, 9 SCRA 317)

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4. ID.; ID.; ID.; PUBLIC WELFARE TO PREVAIL OVER THE INDIVIDUAL INTEREST OF JUDGES. — In the implementation of the law, some Judges and Justices may be adversely affected. But in a conflict between public interest and the individual interest of some Judges and Justices, the public weal must prevail. The welfare of the people is the supreme law. 5. ID.; ID.; ID.; APPOINTMENTS TO THE NEW COURTS, A PRESIDENTIAL PREROGATIVE. — The implementation of the law will entail appointments to the new courts. The power of appointment is the exclusive prerogative of the President. The implementation of the law should be left exclusively to the wisdom, patriotism and statesmanship of the President. ABAD SANTOS, J., concurring and dissenting:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980 (BATAS PAMBANSA BLG. 129); LAW NOT UNCONSTITUTIONAL. — I agree with the learned Chief Justice of the Philippines that Batas Pambansa Blg. 129 is not unconstitutional. 2. ID.; ID.; ID.; ID.; PRIOR CONSULTATION WITH THE SUPREME COURT SHOULD NOT BE REQUIRED OF THE PRESIDENT IN THE IMPLEMENTATION OF THE LAW. — It has already been ruled that the statute does not suffer from any constitutional infirmity because the abolition of certain judicial offices was done in good faith. This being the case, I believe that the Executive is entitled to exercise its constitutional power to fill the newly created judicial positions without any obligation to consult with this Court and to accord its views the fullest consideration. To require consultation will constitute an invasion of executive territory which can be resented and even repelled. The implicit suggestion that there could be an unconstitutional implementation of the questioned legislation is not congruent with the basic conclusion that it is not unconstitutional. PLANA, J., concurring and dissenting:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY REORGANIZATION LAW; POWER TO CREATE COURTS INCLUDES THE POWER TO ABOLISH OR REPLACE THEM; BATAS PAMBANSA BLG. 129 ENACTED IN GOOD FAITH. — As the lawmaking body has the power to create inferior courts and define, prescribe and apportion their jurisdiction, so it has the power to abolish or replace them with other courts at long as the act is done in good faith and not for the purpose of attaining an unconstitutional end. Good faith has thus become the crucial issue in the case at bar. 2. ID.; ID.; ID.; PRESIDENT NOT OBLIGED TO CONSULT WITH THE SUPREME COURT IN THE IMPLEMENTATION OF THE LAW. — The President is under no obligation to consult with the Supreme Court; and the Supreme Court as such is not called upon to give legal advice to the President. Indeed, as the Supreme Court itself has said, it cannot give advisory opinions (Bacolod-Murcia Planters’ Assoc., Inc. v. Bacolod-Murcia Milling Co., 30 SCRA 67; NWSA v. Court of Industrial Relations, 90 SCRA 629) even to the President. 3. ID.; ID.; ID.; FIXING OF COMPENSATION AND ALLOWANCES FOR MEMBERS OF THE JUDICIARY DOES NOT CONSTITUTE AN UNDUE DELEGATION UNTO THE PRESIDENT OF LEGISLATIVE POWER; PRINCIPLE OF SEPARATION OF POWERS UNDER THE 1973 CONSTITUTION. — Under the Old Constitution, when the abiding rule was separation of legislative and executive powers, there was good reason to maintain the doctrine of non-

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delegation of legislative power. Otherwise, the principle of separation of governmental powers could be negated via unbridled delegation of legislative power. The 1973 Constitution has however radically changed the constitutional set-up. There is now a commingling or fusion of executive and legislative powers in the hands of the same group of officials. Cabinet members play a leading role in the legislative process, and members of the Batasan actively discharge executive functions. The Prime Minister indeed must come from its ranks. Under the circumstances, there is really not much sense in rigidly insisting on the principle of nondelegation of legislative power, at least vis-a-vis the Executive Department. In a very real sense, the present Constitution has significantly eroded the hoary doctrine of non-delegation of legislative power, although it has retained some provisions of the old Constitution which were predicated on the principle of non-delegation, this time perhaps not so much to authorize shifting of power and thereby correspondingly reduce the incidence of "undue" delegation of legislative power, as to avert the abdication thereof. TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980 (BATAS PAMBANSA BLG.129); RESULTANT ABOLITION OF COURTS; EXPRESS GUARANTY OF SECURITY OF TENURE OVERRIDES THE IMPLIED AUTHORITY OF REMOVING JUDGES BY LEGISLATION. — The reasoning that the express guaranty of tenure protecting incumbent judges during good behaviour unless removed from office after hearing and due process or upon reaching the compulsory retirement age of seventy years must override the implied authority of removing by legislation the judges has been further strengthened and placed beyond doubt by the new provisions of the 1973 Constitution that transferred the administrative supervision over all courts and their personnel from the Chief Executive through the then Secretary of Justice to the Supreme Court (Art. X, Sec. 6, 1973 Constitution) and vested in the Supreme Court exclusively the power to discipline judges of inferior courts, and, by a vote of at least eight members, order their dismissal, which power was formerly lodged by the Judiciary Act in the Chief Executive.chanroblesvirtuallawlibrary 2. ID.; ID.; ID.; ID.; ID.; 1973 CONSTITUTION RULES OUT OUSTER OF JUDGES BY LEGISLATION BY VESTING IN THE SUPREME COURT THE POWER TO REMOVE AND DISCIPLINE JUDGES. — If the framers of the 1973 Constitution wished to dispel the strong doubts against the removal of incumbent judges through legislative action by abolition of their courts, then they would have so clearly provided for such form of removal in the 1973 Constitution, but on the contrary as already stated they ruled out such removal or ouster of judges by legislative action by vesting exclusively in the Supreme Court the power of discipline and removal of judges of all inferior courts. 3. ID.; ID.; ID.; REORGANIZATION ACT DOES NOT CHANGE THE BASIC STRUCTURE OF EXISTING COURTS. — The questioned Act effects certain changes and procedural reforms with more specific delineation of jurisdiction but they do not change the basic structure of the existing courts. The present Municipal Courts, Municipal Circuit Courts and City Courts are restructured and redesignated as Municipal Trial Courts and Municipal Circuit Trial Courts and Metropolitan Trial Courts in the challenged Act. The Courts of First Instance, Circuit Criminal Courts, Juvenile & Domestic Relations Courts and Courts of Agrarian Relations are all restructured and redesigned to be known by the common name of Regional Trial Courts with provision for certain branches thereof "to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases and/or such other special

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cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice" (Sec. 23, B.P. Blg. 129) and the Court of Appeals is restructured and redesignated as the Intermediate Appellate Court with an increase in the number of Appellate Justices from the present 43 to 30 but with a reduction of the number of divisions from 13 (composed of 3 Justices each) to 10 (composed of 3 members each) such that it is feared that there is created a bottleneck at the appellate level in the important task discharged by such appellate courts as reviewers of facts. 4. ID.; ID.; ID.; ID.; "NEWCOURTS" SUBSTANTIALLY THE "OLD COURTS" WITH ONLY A CHANGE OF NAME. — Justice Teehankee views that the candid admission by the Chief Justice in his opinion for the Court "that he entertained doubts as to whether the intermediate court of appeals provided for is a new tribunal" is equally applicable to all the other mentioned courts provided for in the challenged Act as "new courts." And the best proof of this is the plain and simple transitory provision in Section 44 thereof that upon the President’s declaration of completion of the reorganization (whereby the "old courts" shall "be deemed automatically abolished and the incumbents thereof shall cease to hold office")," (T)he cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment, property and the necessary personnel," together with the "applicable appropriations." This could not have been possible without a specification and enumeration of what specific cases of the "old courts" would be transferred to the particular "new courts," had these "new courts" not been manifestly and substantially the "old courts" with a change of name — or as described by Justice Barredo to have been his first view, now discarded, in his separate opinion; "just a renaming, and not a substantial and actual modification or alteration of the present judicial structure or system" or "a rearrangement or remodelling of the old structure."cralaw virtua1aw library 5. ID.; ID.; ID.; ABOLITION OF COURTS AND CONSEQUENT OUSTER OF INCUMBENT JUDGES FROM OFFICE; GUARANTY OF TENURE OF JUDGES ESSENTIAL FOR A FREE AND INDEPENDENT JUDICIARY; REORGANIZATION SHOULD ALLOW THE INCUMBENTS TO REMAIN IN OFFICE UNLESS REMOVED FOR CAUSE. — The good faith in the enactment of the challenged Act must need be granted. What must be reconciled is the legislative power to abolish courts as implied from the power to establish them with the express constitutional guaranty of tenure of the judges which is essential for a free and independent judiciary. Adherents of the Rule of Law are agreed that indispensable for the maintenance of the Rule of Law is free and independent judiciary, sworn to protect and enforce it without fear or favor — "free, not only from graft, corruption, ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be," to quote again from Justice Barredo’s separate opinion. Hence, my adherence to the 7-member majority opinion of former Chief Justice Bengzon in the case of Ocampo v. Secretary of Justice, G.R. No. L-1790, Jan. 18, 1933, as restated by the Philippine Association of Law Professors headed by former Chief Justice Roberto Concepcion that "any reorganization should at least allow the incumbents of the existing courts to remain in office (the appropriate counterpart "new courts’) unless they are removed for cause."cralaw virtua1aw library 6. ID.; ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE EXTENDS TO THE ENTIRE COURT SYSTEM; VIEWS OF AMICI CURIAE THEREON. — Former U.P. Law Dean Irene Cortes in her memorandum as amicus curiae stated "for the judiciary whose independence is not only eroded but is in grave danger of being completely destroyed, judicial independence is not a

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guarantee intended for the Supreme Court alone, it extends to the entire court system and is even more vital to the courts at the lowest levels because there are more of them and they operate closest to the people," and "particularly under the present form of modified parliamentary government with legislative and executive functions overlapping and in certain areas merging, the judiciary is left to perform the checking function in the performance of which its independence assumes an even more vital importance." The extensive memoranda filed by Dean Cortes and other amici curiae such as former Senator Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent further destruction of judicial independence," former Senator Lorenzo Sumulong, President of the Philippine Constitution Association who advocates for the Court’s adoption of the Bengzon majority opinion in the Ocampo case so as to abide by "the elementary rule in the interpretation of constitutions that effect should be given to all parts of the Constitution" and that the judges’ security of tenure guaranty should not be "rendered meaningless and inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers’ Association who submits that the total abolition of all courts below the Supreme Court (except the Sandiganbayan and the Court of Tax Appeals) and the removal of the incumbent Justices and Judges violates the independence of the judiciary, their security of tenure and right to due process guaranteed them by the Constitution" and Atty. Raul M. Gonzales, president of the National Bar Association of the Philippines who invokes the Declaration of Delhi at the ICJ Conference in 1939, that "The principles of unremovability of the Judiciary and their Security of Tenure until death or until a retiring age fluted by statute is reached, is an important safeguard of the Rule of Law" have greatly helped in fortifying my views. 7. ID.; ID.; ID.; ID.; ID.; TRANSITORY PROVISIONS OF THE 1973 CONSTITUTION RENDERED NUGATORY JUDGES’ SECURITY OF TENURE; RESTORATION OF GUARANTY; AN URGENT NEED FOR A FREE AND INDEPENDENT JUDICIARY. — The judges’ security of tenure was rendered nugatory by the Transitory Provisions of the 1973 Constitution which granted the incumbent President the unlimited power to remove and replace all judges and officials (as against the limited one-year period for the exercise of such power granted President Quezon in the 1935 Constitution upon establishment of the Philippine Commonwealth). Upon the declaration of martial law in September, 1972, justices and judges of all courts, except the Supreme Court, had been required to hand in their resignation. There is listed a total of 33 judges who were replaced or whose resignations were accepted by the President during the period from September, 1972 to April, 1976. The power to replace even the judges appointed after the effectivity on January 17, 1973 Constitution is yet invoked on behalf of the President in the pending case of Tapucar v. Famador, G.R. No. 53467 filed on March 27, 1980 notwithstanding the held view that such post-1973 Constitution appointed judges are not subject to the Replacement Clause of the cited Transitory Provision, . . . . And now comes this total abolition of 1,663 judicial positions (and thousands of personnel positions) unprecedented in its sweep and scope. The urgent need is to strengthen the judiciary with the restoration of the security of tenure of judges, which is essential for a free and independent judiciary as mandated by the Constitution, not to make more enfeebled an already feeble judiciary, possessed neither of the power of the sword nor the purse, as decried by former Chief Justice Bengzon in his Ocampo majority opinion.chanroblesvirtuallawlibrary 8. ID.; ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE TO BE PRESERVED ESPECIALLY IN VIEW OF THE EXISTING STRONG TIES BETWEEN THE EXECUTIVE AND LEGISLATIVE DEPARTMENTS. — In Fortun v. Labang, 104 SCRA 607 (May 27, 1981), it was stressed that with the provision transferring to the Supreme Court administrative supervision.over the Judiciary, there is a

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greater need "to preserve unimpaired the independence of the judiciary, especially so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches," with the further observation that "many are the ways by which such independence could be eroded."cralaw virtua1aw library 9. ID.; ID.; ID.; ID.; ID.; MOVE TO RID THE JUDICIARY OF INCOMPETENT AND CORRUPT JUDGES; DUE PROCESS MUST BE OBSERVED IN THE IMPLEMENTATION OF THE PURGE. — Former Senator Diokno in his memorandum anticipates the argument that "great ills demand drastic cures" thus; "Drastic, yes — but not unfair nor unconstitutional. One does not improve courts by abolishing them, any more than a doctor cures a patient by killing him. The ills the judiciary suffers from were caused by impairing its independence; they will not be cured by totally destroying that independence. To adopt such a course could only breed more perversity in the administration of justice, just as the abuses of martial rule have bred more subversion." Finally, as stated by the 1975 Integrated Bar of the Philippines 2nd House of Delegates, "It would, indeed, be most ironical if Judges who are called upon to give due process cannot count it on themselves. Observance of procedural due process in the separation of misfits from the Judiciary is the right way to attain a laudible objective."cralaw virtua1aw library 10. ID.; ID.; ID.; ID.; ID.; ID.; ID.; JUDGES TO BE REMOVED ONLY AFTER A FAIR HEARING. — As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal principles of fairness and due process and the opportunity to be heard and defend themselves against the accusations made against them and not to be subjected to harassment and humiliation, and the Court will repudiate the "oppressive exercise of legal authority." More so, are judges entitled to such due process when what is at stake is their constitutionally guaranteed security of tenure and non-impairment of the independence of the judiciary and the proper exercise of the constitutional power exclusively vested in the Supreme Court to discipline and remove judges after fair hearing. 11. .ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; SUPREME COURT TO EXERCISE ITS POWER OF DISCIPLINE AND DISMISSAL OF ALL JUDGES OF INFERIOR COURTS. — Judges of inferior courts should not be summarily removed and branded for life in such reorganization on the basis of confidential adverse reports as to their performance, competence or integrity, save those who may voluntarily resign from office upon being confronted with such reports against them. The trouble with such ex-parte reports, without due process or hearing, has been proven from our past experience where a number of honest and competent judges were summarily removed while others who were generally believed to be basket cases have remained in the service. The power of discipline and dismissal of judges of all inferior courts, from the Court of Appeals down, has been vested by the 1973 Constitution in the Supreme Court, and if the judiciary is to be strengthened, it should be left to clean its own house upon complaint and with the cooperation of the aggrieved parties and after due process and hearing. 12. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; INCUMBENT JUDGES TO BE RETAINED IN THE "NEW COURTS." — The constitutional confrontation and conflict may well be avoided by holding that since the changes and provisions of the challenged Act do not substantially change the nature and functions of the "new courts" therein provided as compared to the "abolished old court" but provide for procedural changes fixed delineation of jurisdiction and increases in the number of courts for a more effective and efficient disposition of court cases, the incumbent

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judges’ guaranteed security of tenure require that they be retained in the corresponding "new courts." DECISION FERNANDO, C.J.: This Court, pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate case, has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled "An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes." The task of judicial review, aptly characterized as exacting and delicate, is never more so than when a conceded legislative power, that of judicial reorganization, 1 may possibly collide with the time-honored principle of the independence of the judiciary 2 as protected and safeguarded by this constitutional provision: "The Members of the Supreme Court and judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal." 3 For the assailed legislation mandates that Justices and judges of inferior courts from the Court of Appeals to municipal circuit courts, except the occupants of the Sandiganbayan and the Court of Tax Appeals, unless appointed to the inferior courts established by such Act, would be considered separated from the judiciary. It is the termination of their incumbency that for petitioners justifies a suit of this character, it being alleged that thereby the security of tenure provision of the Constitution has been ignored and disregarded.chanrobles virtual lawlibrary That is the fundamental issue raised in this proceeding, erroneously entitled Petition for Declaratory Relief and/or for Prohibition 4 considered by this Court as an action for prohibition, seeking to enjoin respondent Minister of the Budget, respondent Chairman of the Commission on Audit, and respondent Minister of Justice from taking any action implementing Batas Pambansa Blg. 129. Petitioners 5 sought to bolster their claim by imputing lack of good faith in its enactment and characterizing as an undue delegation of legislative power to the President his authority to fix the compensation and allowances of the Justices and judges thereafter appointed and the determination of the date when the reorganization shall be deemed completed. In the very comprehensive and scholarly Answer of Solicitor General Estelito P. Mendoza, 6 it was pointed out that there is no valid justification for the attack on the constitutionality of this statute, it being a legitimate exercise of the power vested in the Batasang Pambansa to reorganize the judiciary, the allegations of absence of good faith as well as the attack on the Independence of the judiciary being unwarranted and devoid of any support in law. A Supplemental Answer was likewise filed on October 8, 1981, followed by a Reply of petitioners on October 13. After the hearing in the morning and afternoon of October 15, in which not only petitioners and respondents were heard through counsel but also the amici curiae, 7 and thereafter submission of the minutes of the proceeding on the debate on Batas Pambansa Blg. 129, this petition was deemed submitted for decision. The importance of the crucial question raised called for intensive and rigorous study of all the legal aspects of the case. After such exhaustive deliberation in several sessions, the exchange

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of views being supplemented by memoranda from the members of the Court, it is our opinion and so hold that Batas Pambansa Blg. 129 is not unconstitutional. 1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice Laurel’s opinion in People v. Vera. 8 Thus: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." 9 The other petitioners as members of the bar and officers of the court cannot be considered as devoid of "any personal and substantial interest" on the matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on Elections: 10 "Then there is the attack on the standing of petitioners, as vindicating at most what they consider a public right and not protecting their rights as individuals. This is to conjure the specter of the public right dogma as an inhibition to parties intent on keeping public officials staying on the path of constitutionalism. As was so well put by Jaffe: ‘The protection of private rights is an essential constituent of public interest and, conversely, without a well-ordered state there could be no enforcement of private rights. Private and public interests are, both in a substantive and procedural sense, aspects of the totality of the legal order.’ Moreover, petitioners have convincingly shown that in their capacity as taxpayers, their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach followed in Pascual v. Secretary of Public Works, foreshadowed by the very decision of People v. Vera where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents, however, would hark back to the American Supreme Court doctrine in Mellon v. Frothingham, with their claim that what petitioners possess ‘is an interest which is shared in common by other people and is comparatively so minute and indeterminate as to afford any basis and assurance that the judicial process can act on it.’ That is to speak in the language of a bygone era, even in the United States. For as Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not breached has definitely been lowered." 11 2. The imputation of arbitrariness to the legislative body in the enactment of Batas Pambansa Blg. 129 to demonstrate lack of good faith does manifest violence to the facts. Petitioners should have exercised greater care in informing themselves as to its antecedents. They have laid themselves open to the accusation of reckless disregard for the truth. On August 7, 1980, a Presidential Committee on Judicial Reorganization was organized. 12 This Executive Order was later amended by Executive Order No. 619-A, dated September 5 of that year. It clearly specified the task assigned to it: "1. The Committee shall formulate plans on the reorganization of the Judiciary which shall be submitted within seventy (70) days from August 7, 1980 to provide the President sufficient options for the reorganization of the entire Judiciary which shall embrace all lower courts, including the Court of Appeals, the Courts of First Instance, the City and Municipal Courts, and all Special Courts, but excluding the Sandiganbayan." 13 On October 17, 1980, a Report was submitted by such Committee on Judicial Reorganization. It began with this paragraph: "The Committee on Judicial Reorganization has the honor to submit the following Report. It expresses at the outset its appreciation for the opportunity accorded it to study ways and means for what today is a basic and urgent need, nothing less than the restructuring of the judicial system. There are problems, both grave and pressing, that call for remedial measures. The felt necessities of the time, to borrow a phrase from Holmes, admit of no delay, for if no step be taken and at the earliest opportunity, it is not too much to say that the people’s faith in the administration of

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justice could be shaken. It is imperative that there be a greater efficiency in the disposition of cases and that litigants, especially those of modest means — much more so, the poorest and the humblest — can vindicate their rights in an expeditious and inexpensive manner. The rectitude and the fairness in the way the courts operate must be manifest to all members of the community and particularly to those whose interests are affected by the exercise of their functions. It is to that task that the Committee addresses itself and hopes that the plans submitted could be a starting point for an institutional reform in the Philippine judiciary. The experience of the Supreme Court, which since 1973 has been empowered to supervise inferior courts, from the Court of Appeals to the municipal courts, has proven that reliance on improved court management as well as training of judges for more efficient administration does not suffice. Hence, to repeat, there is need for a major reform in the judicial system. It is worth noting that it will be the first of its kind since the Judiciary Act became effective on June 16, 1901." 14 It went on to say: "It does not admit of doubt that the last two decades of this century are likely to be attended with problems of even greater complexity and delicacy. New social interests are pressing for recognition in the courts. Groups long inarticulate, primarily those economically underprivileged, have found legal spokesmen and are asserting grievances previously ignored. Fortunately, the judiciary has not proved inattentive. Its task has thus become even more formidable. For so much grist is added to the mills of justice. Moreover, they are likely to be quite novel. The need for an innovative approach is thus apparent. The national leadership, as is well-known, has been constantly on the search for solutions that will prove to be both acceptable and satisfactory. Only thus may there be continued national progress." 15 After which comes: "To be less abstract, the thrust is on development. That has been repeatedly stressed — and rightly so. All efforts are geared to its realization." Nor, unlike in the past, was it to be "considered as simply the movement towards economic progress and growth measured in terms of sustained increases in per capita income and Gross National Product (GNP)." 16 For the New Society, its implication goes further than economic advance, extending to "the sharing, or more appropriately, the democratization of social and economic opportunities, the substantiation of the true meaning of social justice." 17 This process of modernization and change compels the government to extend its field of activity and its scope of operations. The efforts towards reducing the gap between the wealthy and the poor elements in the nation call for more regulatory legislation. That way the social justice and protection to labor mandates of the Constitution could be effectively implemented" 18 There is likelihood then "that some measures deemed inimical by interests adversely affected would be challenged in court on grounds of validity. Even if the question does not go that far, suits may be filed concerning their interpretation and application. . . . There could be pleas for injunction or restraining orders. Lack of success of such moves would not, even so, result in their prompt final disposition. Thus delay in the execution of the policies embodied in law could thus be reasonably expected. That is not conducive to progress in development." 19 For, as mentioned in such Report, equally of vital concern is the problem of clogged dockets, which "as is well known, is one of the utmost gravity. Notwithstanding the most determined efforts exerted by the Supreme Court, through the leadership of both retired Chief Justice Querube Makalintal and the late Chief Justice Fred Ruiz Castro, from the time supervision of the courts was vested in it under the 1973 Constitution, the trend towards more and more cases has continued." 20 It is understandable why. With the accelerated economic development, the growth of population, the increasing urbanization, and other similar factors, the judiciary is called upon much oftener to resolve controversies. Thus confronted with what appears to be a crisis situation that calls for a remedy, the Batasang Pambansa had no choice. It had to act, before the ailment became even worse. Time was of the essence, and yet it did not hesitate to be duly mindful, as it ought to be, of the extent of its coverage before enacting Batas Pambansa

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Blg. 129. 3. There is no denying, therefore, the need for "institutional reforms," characterized in the Report as "both pressing and urgent." 21 It is worth noting, likewise, as therein pointed out, that a major reorganization of such scope, if it were to take place, would be the most thorough after four generations. 22 The reference was to the basic Judiciary Act enacted in June of 1901, 23 amended in a significant way, only twice previous to the Commonwealth. There was, of course, the creation of the Court of Appeals in 1935, originally composed "of a Presiding Judge and ten appellate Judges, who shall be appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly." 24 It could "sit en banc, but it may sit in two divisions, one of six and another of five Judges, to transact business, and the two divisions may sit at the same time." 25 Two years after the establishment of independence of the Republic of the Philippines, the Judiciary Act of 1948 26 was passed. It continued the existing system of regular inferior courts, namely, the Court of Appeals, Courts of First Instance, 27 the Municipal Courts, at present the City Courts, and the Justice of the Peace Courts, now the Municipal Circuit Courts and Municipal Courts. The membership of the Court of Appeals has been continuously increased. 28 Under a 1978 Presidential Decree, there would be forty-five members, a Presiding Justice and forty-four Associate Justices, with fifteen divisions. 29 Special courts were likewise created. The first was the Court of Tax Appeals in 1954, 30 next came the Court of Agrarian Relations in 1955, 31 and then in the same year a Court of the Juvenile and Domestic Relations for Manila in 1955, 32 subsequently followed by the creation of two other such courts for Iloilo and Quezon City in 1966. 33 In 1967, Circuit Criminal Courts were established, with the Judges having the same qualifications, rank, compensation, and privileges as judges of Courts of First Instance. 34 4. After the submission of such Report, Cabinet Bill No. 42, which later became the basis of Batas Pambansa Blg. 129, was introduced. After setting forth the background as above narrated, its Explanatory Note continues: "Pursuant to the President’s instructions, this proposed legislation has been drafted in accordance with the guidelines of that report with particular attention to certain objectives of the reorganization, to wit, the attainment of more efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meting out of justice. In consultation with, and upon a consensus of, the governmental and parliamentary leadership, however, it was felt that some options set forth in the Report be not availed of. Instead of the proposal to confine the jurisdiction of the intermediate appellate court merely to appellate adjudication, the preference has been opted to increase rather than diminish its jurisdiction in order to enable it to effectively assist the Supreme Court. This preference has been translated into one of the innovations in the proposed Bill." 35 In accordance with the parliamentary procedure, the Bill was sponsored by the Chairman of the Committee on Justice, Human Rights and Good Government to which it was referred. Thereafter, Committee Report No. 225 was submitted by such Committee to the Batasang Pambansa recommending the approval with some amendments. In the sponsorship speech of Minister Ricardo C. Puno, there was reference to the Presidential Committee on Judicial Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial Reorganization submitted its report to the President which contained the ‘Proposed Guidelines for Judicial Reorganization.’ Cabinet Bill No. 42 was drafted substantially in accordance with the options presented by these guidelines. Some options set forth in the aforesaid report were not availed of upon consultation with and upon consensus of the government and parliamentary leadership. Moreover, some amendments to the bill were adopted by the Committee on Justice, Human Rights and Good Government, to which the bill was referred,

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following the public hearings on the bill held in December of 1980. The hearings consisted of dialogues with the distinguished members of the bench and the bar who had submitted written proposals, suggestions, and position papers on the bill upon the invitation of the Committee on Justice, Human Rights and Good Government." 36 The sponsor stressed that the enactment of such Cabinet Bill would result in the attainment "of more efficiency in the disposal of cases [and] the improvement in the quality of justice dispensed by the courts" expected to follow from the dockets being less clogged, with the structural changes introduced in the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure, [being] designated to suit the court system to the exigencies of the present day Philippine society, and hopefully, of the foreseeable future." 37 It may be observed that the volume containing the minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive study before the act was signed by the President on August 14, 1981. With such a background, it becomes quite manifest how lacking in factual basis is the allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is the good faith that characterized its enactment from its inception to the affixing of the Presidential signature. 5. Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine: "We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved, but the validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. . . . And, of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith." 39 The above excerpt was quoted with approval in Bendanillo, Sr. v. Provincial Governor, 40 two earlier cases enunciating a similar doctrine having preceded it. 41 As with the offices in the other branches of the government, so it is with the judiciary. The test remains whether the abolition is in good faith. As that element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more apparent. The concurring opinion of Justice Laurel in Zandueta v. De la Costa 42 cannot be any clearer. In this quo warranto proceeding, petitioner claimed that he, and not respondent, was entitled to the office of judge of the Fifth Branch of the Court of First Instance of Manila. The Judicial Reorganization Act of 1936, 43 a year after the inauguration of the Commonwealth, amended the Administrative Code to organize courts of original jurisdiction likewise called, as was the case before, Courts of First Instance. Prior to such statute, petitioner was the incumbent of one such court. Thereafter, he received an ad interim appointment, this time to the Fourth Judicial District, under the new legislation. Unfortunately for him, the Commission on Appointments of the then National Assembly disapproved the same, with respondent being appointed in his place. He contested the validity of the Act insofar as it resulted in his being forced to vacate his position. This Court did not rule squarely on the matter. His petition was dismissed on the ground of estoppel. Nonetheless, the separate concurrence in the result of Justice Laurel, to repeat, reaffirms in no uncertain terms the standard of good faith as the test of the validity of an act abolishing an inferior court, and this too with due recognition of the security of tenure guarantee. Thus: "I am of the opinion that Commonwealth Act No. 145 in so far as it

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reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and constitutional. This conclusion flows from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of the Constitution vests in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme Court. It is admitted that Section 9 of the same Article of the Constitution provides for the security of tenure of all the judges. The principles embodied in these two sections of the same Article of the Constitution must be coordinated and harmonized. A mere enunciation of a principle will not decide actual cases and controversies of every sort. (Justice Holmes in Lochner v. New York, 198 U.S., 45; 49 Law. ed., 937)" 44 Justice Laurel continued: "I am not insensible to the argument that the National Assembly may abuse its power and move deliberately to defeat the constitutional provision guaranteeing security of tenure to all judges. But, is this the case? One need not share the view of Story, Miller and Tucker on the one hand, or the opinion of Cooley, Watson and Baldwin on the other, to realize that the application of a legal or constitutional principle is necessarily factual and circumstantial and that fixity of principle is the rigidity of the dead and the unprogressive. I do say, and emphatically, however, that cases may arise where the violation of the constitutional provision regarding security of tenure is palpable and plain, and that legislative power of reorganization may be sought to cloak an unconstitutional and evil purpose. When a case of that kind arises, it will be the time to make the hammer fall and heavily. But not until then. I am satisfied that, as to the particular point here discussed, the purpose was the fulfillment of what was considered a great public need by the legislative department and that Commonwealth Act No. 145 was not enacted purposely to affect adversely the tenure of judges or of any particular judge. Under these circumstances, I am for sustaining the power of the legislative department under the Constitution. To be sure, there was greater necessity for reorganization consequent upon the establishment of the new government than at the time Acts Nos. 2347 and 4007 were approved by the defunct Philippine Legislature, and although in the case of these two Acts there was an express provision providing for the vacation by the judges of their offices whereas in the case of Commonwealth Act No. 145 doubt is engendered by its silence, this doubt should be resolved in favor of the valid exercise of the legislative power." 45 6. A few more words on the question of abolition. In the abovecited opinion of Justice Laurel in Zandueta, reference was made to Act No. 2347 46 on the reorganization of the Courts of First Instance and to Act No. 4007 47 on the reorganization of all branches of the government, including the courts of first instance. In both of them, the then Courts of First Instance were replaced by new courts with the same appellation. As Justice Laurel pointed out, there was no question as to the fact of abolition. He was equally categorical as to Commonwealth Act No. 145, where also the system of the courts of first instance was provided for expressly. It was pointed out by Justice Laurel that the mere creation of an entirely new district of the same court is valid and constitutional, such conclusion flowing "from the fundamental proposition that the legislature may abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or otherwise thereby necessitating new appointments and commissions." 48 The challenged statute creates an intermediate appellate court, 49 regional trial courts, 50 metropolitan trial courts of the national capital region, 51 and other metropolitan trial courts, 52 municipal trial courts in cities, 53 as well as in municipalities, 54 and municipal circuit trial courts. 55 There is even less reason then to doubt the fact that existing inferior courts were abolished. For the Batasang Pambansa, the establishment of such

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new inferior courts was the appropriate response to the grave and urgent problems that pressed for solution. Certainly, there could be differences of opinion as to the appropriate remedy. The choice, however, was for the Batasan to make, not for this Court, which deals only with the question of power. It bears mentioning that in Brillo v. Enage 56 this Court, in a unanimous opinion penned by the late Justice Diokno, citing Zandueta v. De la Costa, ruled: "La segunda cuestion que el recurrido plantea es que la Carta de Tacloban ha abolido el puesto. Si efectivamente ha sido abolido el cargo, entonces ha quedado extinguido el derecho de recurrente a acuparlo y a cobrar el salario correspondiente. McCulley v. State, 46 LRA, 567. El derecho de un juez de desempenarlo hasta los 70 años de edad o se incapacite no priva al Congreso de su facultad de abolir, fusionar o reorganizar juzgados no constitucionales." 57 Nonetheless, such well-established principle was not held applicable to the situation there obtaining, the Charter of Tacloban City creating a city court in place of the former justice of the peace of court. Thus: "Pero en el caso de autos el Juzgado de Tacloban no ha sido abolido. Solo se le ha cambiado el nombre con el cambio de forma del gobierno local." 58 The present case is anything but that. Petitioners did not and could not prove that the challenged statute was not within the bounds of legislative authority.chanroblesvirtuallawlibrary 7. This opinion then could very well stop at this point. The implementation of Batas Pambansa Blg. 129, concededly a task incumbent on the Executive, may give rise, however, to questions affecting a judiciary that should be kept independent. The all embracing scope of the assailed legislation as far as all inferior courts from the Court of Appeals to municipal courts are concerned, with the exception solely of the Sandiganbayan and the Court of Tax Appeals, 59 gave rise, and understandably so, to misgivings as to its effect on such cherished ideal. The first paragraph of the section on the transitory provision reads: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." 60 There is all the more reason then why this Court has no choice but to inquire further into the allegation by petitioners that the security of tenure provision, an assurance of a judiciary free from extraneous influences, is thereby reduced to a barren form of words. The amended Constitution adheres even more clearly to the long-established tradition of a strong executive that antedated the 1935 Charter. As noted in the work of former Vice-Governor Hayden, a noted political scientist, President Claro M. Recto of the 1934 Constitutional Convention stressed such a concept in his closing address. The 1935 Constitution, he stated, provided for "an Executive power which, subject to the fiscalization of the Assembly, and of public opinion, will not only know how to govern, but will actually govern, with a firm and steady hand, unembarrassed by vexatious interferences by other departments, by unholy alliances with this and that social group." 61 The above excerpt was cited with approval by Justice Laurel in Planas v. Gil. 62 The 1981 Amendments embody the same philosophy, this notwithstanding that once again the principle of separation of powers, to quote from the same jurist as ponente in Angara v. Electoral Commission, 63 "obtains not through express provision but by actual division." 64 The President, under Article VII, "shall be the head of state and chief executive of the Republic of the Philippines." 65 Moreover, all the powers he possessed under the 1935 Constitution are vested in him anew "unless the Batasang Pambansa provides otherwise." 66 Article VII of the 1935 Constitution speaks categorically: "The Executive power

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shall be vested in a President of the Philippines." 67 As originally framed, the 1973 Constitution created the position of President as the "symbolic head of state." 68 In addition, there was a provision for a Prime Minister as the head of government to exercise the executive power with the assistance of the Cabinet. 69 Clearly, a modified parliamentary system was established. In the light of the 1981 amendments though, this Court in Free Telephone Workers Union v. Minister of Labor 70 could state: "The adoption of certain aspects of a parliamentary system in the amended Constitution does not alter its essentially presidential character." 71 The retention, however, of the position of the Prime Minister with the Cabinet, a majority of the members of which shall come from the regional representatives of the Batasang Pambansa and the creation of an Executive Committee composed of the Prime Minister as Chairman and not more than fourteen other members at least half of whom shall be members of the Batasang Pambansa, clearly indicate the evolving nature of the system of government that is now operative. 72 What is equally apparent is that the strongest ties bind the executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority party. It is understandable then why in Fortun v. Labang, 73 it was stressed that with the provision transferring to the Supreme Court administrative supervision over the Judiciary, there is a greater need "to preserve unimpaired the independence of the judiciary, especially so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches." 74 8. To be more specific, petitioners contend that the abolition of the existing inferior courts collides with the security of tenure enjoyed by incumbent Justices and judges Under Article X, Section 7 of the Constitution. There was a similar provision in the 1935 Constitution. It did not, however, go as far as conferring on this Tribunal the power to supervise administratively inferior courts. 75 Moreover, this Court is empowered "to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal." 76 Thus it possesses the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. 77 Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not render advisory opinions. No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power. Rather what is sought to be achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing the inferior courts, the power of removal of the

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present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernible except to those predisposed to view it with distrust. Moreover, such a construction would be in accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred. 78 There is an obvious way to do so. The principle that the Constitution enters into and forms part of every act to avoid any unconstitutional taint must be applied. Nuñez v. Sandiganbayan, 79 promulgated last January, has this relevant excerpt: "It is true that other Sections of the Decree could have been so worded as to avoid any constitutional objection. As of now, however, no ruling is called for. The view is given expression in the concurring and dissenting opinion of Justice Makasiar that in such a case to save the Decree from the dire fate of invalidity, they must be construed in such a way as to preclude any possible erosion on the powers vested in this Court by the Constitution. That is a proposition too plain to be contested. It commends itself for approval." 80 Nor would such a step be unprecedented. The Presidential Decree constituting Municipal Courts into Municipal Circuit Courts, specifically provides: "The Supreme Court shall carry out the provisions of this Decree through implementing orders, on a province-toprovince basis." 81 It is true there is no such provision in this Act, but the spirit that informs it should not be ignored in the Executive Order contemplated under its Section 44. 82 Thus Batas Pambansa Blg. 129 could stand the most rigorous test of constitutionality. 83 9. Nor is there anything novel in the concept that this Court is called upon to reconcile or harmonize constitutional provisions. To be specific, the Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. As noted in the preceding paragraph, the termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence. That is why it has long been well-settled under the constitutional system we have adopted that this Court cannot, whenever appropriate, avoid the task of reconciliation. As Justice Laurel put it so well in the previously cited Angara decision, while in the main, "the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government, the overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins." 84 It is well to recall another classic utterance from the same jurist, even more emphatic in its affirmation of such a view, moreover buttressed by one of those insights for which Holmes was so famous: "The classical separation of government powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Montesquieu, or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down ‘with mathematical precision and divide the branches into watertight compartments’ not only because ‘the great ordinances of the Constitution do not establish and divide fields of black and white’ but also because ‘even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.’" 85 This too from Justice Tuazon, likewise expressing with force and clarity why the need for reconciliation or balancing is well-nigh unavoidable under the fundamental principle of separation of powers: "The constitutional structure is a complicated system, and overlappings of governmental functions are recognized, unavoidable, and inherent necessities of governmental coordination." 86 In the same way that the academe has

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noted the existence in constitutional litigation of right versus right, there are instances, and this is one of them, where, without this attempt at harmonizing the provisions in question, there could be a case of power against power. That we should avoid.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 10. There are other objections raised but they pose no difficulty. Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is quite clear. The questioned provision reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, and Municipal Circuit Trial Judges shall receive such compensation and allowances as may be authorized by the President along the guidelines set forth in letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." 87 The existence of a standard is thus clear. The basic postulate that underlies the doctrine of non-delegation is that it is the legislative body which is entrusted with the competence to make laws and to alter and repeal them, the test being the completeness of the statute in all its terms and provisions when enacted. As pointed out in Edu v. Ericta: 88 "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole." 89 The undeniably strong links that bind the executive and legislative departments under the amended Constitution assure that the framing of policies as well as their implementation can be accomplished with unity, promptitude, and efficiency. There is accuracy, therefore, to this observation in the Free Telephone Workers Union decision: "There is accordingly more receptivity to laws leaving to administrative and executive agencies the adoption of such means as may be necessary to effectuate a valid legislative purpose. It is worth noting that a highly-respected legal scholar, Professor Jaffe, as early as 1947, could speak of delegation as the ‘dynamo of modern government.’" 90 He warned against a "restrictive approach" which could be "a deterrent factor to much-needed legislation." 91 Further on this point from the same opinion: "The spectre of the non-delegation concept need not haunt, therefore, party caucuses, cabinet sessions or legislative chambers." 92 Another objection based on the absence in the statute of what petitioners refer to as a "definite time frame limitation" is equally bereft of merit. They ignore the categorical language of this provision: "The Supreme Court shall submit to the President, within thirty (30) days from the date of the effectivity of this act, a staffing pattern for all courts constituted pursuant to this Act which shall be the basis of the implementing order to be issued by the President in accordance with the immediately succeeding section." 93 The first sentence of the next Section is even more categorical: "The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President." 94 Certainly, petitioners cannot be heard to argue that the President is insensible to his constitutional duty to take care that the laws be faithfully executed. 95 In the meanwhile, the existing inferior courts affected

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continue functioning as before, "until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." 96 There is no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold office." No fear need be entertained by incumbents whose length of service, quality of performance, and clean record justify their being named anew, 97 in legal contemplation, without any interruption in the continuity of their service. 98 It is equally reasonable to assume that from the ranks of lawyers, either in the government service, private practice, or law professors will come the new appointees. In the event that in certain cases, a little more time is necessary in the appraisal of whether or not certain incumbents deserve reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its implementation by the Executive. There is pertinence of this observation of Justice Holmes that even acceptance to the generalization that courts ordinarily should not supply omissions in a law, a generalization qualified as earlier shown by the principle that to save a statute that could be done, "there is no canon against using common sense in consuming laws as saying what they obviously mean." 99 Where then is the unconstitutional flaw? 11. In the morning of the hearing of this petition on September 8, 1981, petitioners sought to have the writer of this opinion and Justices Ramon C. Aquino and Ameurfina Melencio-Herrera disqualified because the first-named was the Chairman and the other two, members of the Committee on Judicial Reorganization. At the hearing, the motion was denied. It was made clear then and there that not one of the three members of the Court had any hand in the framing or in the discussion of Batas Pambansa Blg. 129. They were not consulted. They did not testify. The challenged legislation is entirely the product of the efforts of the legislative body. 100 Their work was limited, as set forth in the Executive Order, to submitting alternative plans for reorganization. That is more in the nature of scholarly studies. That they undertook. There could be no possible objection to such activity. Even since 1973, this Tribunal has had administrative supervision over inferior courts. It has had the opportunity to inform itself as to the way judicial business is conducted and how it may be improved. Even prior to the 1973 Constitution, it is the recollection of the writer of this opinion that either the then Chairman or members of the Committee on Justice of the then Senate of the Philippines 101 consulted members of the Court in drafting proposed legislation affecting the judiciary. It is not inappropriate to cite this excerpt from an article in the 1975 Supreme Court Review: "In the twentieth century the Chief Justice of the United States has played a leading part in judicial reform. A variety of conditions have been responsible for the development of this role, and foremost among them has been the creation of explicit institutional structures designed to facilitate reform." 102 Also: "Thus the Chief Justice cannot avoid exposure to and direct involvement in judicial reform at the federal level and, to the extent issues of judicial federalism arise, at the state level as well." 103 12. It is a cardinal article of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or impliedly certain powers. Those they exercise not for their own benefit but for the body politic. The Constitution does not speak in the language of ambiguity: "A public office is a public trust." 104 That is more than a moral adjuration. It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is from that standpoint that the security of tenure provision to assure judicial independence is to

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be viewed. It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. As thus viewed, it is not solely for their welfare. The challenged legislation was thus subjected to the most rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allows the erosion of that ideal so firmly embedded in the national consciousness. There is this further thought to consider. Independence in thought and action necessarily is rooted in one’s mind and heart. As emphasized by former Chief Justice Paras in Ocampo v. Secretary of Justice, 105 "there is no surer guarantee of judicial independence than the God-given character and fitness of those appointed to the Bench. The judges may be guaranteed a fixed tenure of office during good behavior, but if they are of such stuff as allows them to be subservient to one administration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be nothing more than a myth or an empty ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of the power of Congress — we do not say unlimited but as herein exercised — to reorganize inferior courts." 106 That is to recall one of the greatest Common Law jurists, who at the cost of his office made clear that he would not just blindly obey the King’s order but "will do what becomes [him] as a judge." So it was pointed out in the first leading case stressing the independence of the judiciary, Borromeo v. Mariano. 107 The ponencia of Justice Malcolm identified good judges with "men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and self-respecting human units in a judicial system equal and coordinate to the other two departments of government." 108 There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious consequences to the administration of justice. It does not follow that the abolition in good faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor should there be any fear that less than good faith will attend the exercise of the appointing power vested in the Executive. It cannot be denied that an independent and efficient judiciary is something to the credit of any administration. Well and truly has it been said that the fundamental principle of separation of powers assumes, and justifiably so, that the three departments are as one in their determination to pursue the ideals and aspirations and to fulfill the hopes of the sovereign people as expressed in the Constitution. There is wisdom as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, 109 a decision promulgated almost half a century ago: "Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act." 110 To that basic postulate underlying our constitutional system, this Court remains committed. WHEREFORE, the unconstitutionality of Batas Pambansa Blg. 129 not having been shown, this petition is dismissed. No costs.chanroblesvirtuallawlibrary Makasiar and Escolin, JJ., concur.

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Concepcion, Jr., J., concurs in the result, the abolition being in good faith. Fernandez, J., concurs provided that in the task of implementation by the Executive as far as the present Justices and judges who may be separated from their service, it would be in accordance with the tenets of constitutionalism if this Court be consulted and that its view be respected. Separate Opinions BARREDO, J., concurring:chanrob1es virtual 1aw library I join the majority of my brethren in voting that the Judiciary Reorganization Act of 1980, Batas Pambansa Blg. 129, is not unconstitutional as a whole nor in any of its part. The issue of unconstitutionality raised by petitioners relates particularly to Section 44 of the Act which reads as follows:jgc:chanrobles.com.ph "SEC. 44. Transitory provisions. — The provisions of this Act shall be immediately carried out in accordance with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Circuit Courts shall continue to function as presently constituted and organized, until the completion of the reorganization provided in this Act as declared by the President. Upon such declaration, the said courts shall be deemed automatically abolished and the incumbents thereof shall cease to hold office. The cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment, property and the necessary personnel. "The applicable appropriations shall likewise be transferred to the appropriate courts constituted pursuant to this Act, to be augmented as may be necessary from the funds for organizational changes as provided in Batas Pambansa Blg. 80. Said funding shall thereafter be included in the annual General Appropriations Act."cralaw virtua1aw library It is contended by petitioners that the provision in the above section which mandates that "upon the declaration (by the President that the reorganization contemplated in the Act has been completed), the said courts (meaning, the Court of Appeals and all other lower courts, except the Sandiganbayan and the Court of Tax Appeals) shall be deemed abolished and the incumbents thereof shall cease to hold office" trenches on all the constitutional safeguards and guarantees of the independence of the judiciary, such as the security of tenure of its members (Section 7, Article X of the Philippine Constitution of 1973), the prerogative of the Supreme Court to administratively supervise all courts and the personnel thereof (Section 6, Id.) and principally, the power of the Supreme Court "to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal." (Section 7, Id.) On the other hand, respondents maintain that thru the above-quoted Section 44, the Batasan did nothing more than to exercise the authority conferred upon it by Section 1 of the same Article of the Constitution which provides that" (T)he Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law." In other words,

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since all inferior courts are, constitutionally speaking, mere creatures of the law (of the legislature), it follows that it is within the legislature’s power to abolish or reorganize them even if in so doing, it might result in the cessation from office of the incumbents thereof before the expiration of their respective constitutionally-fixed tenures. Respondents emphasize that the legislative power in this respect is broad and indeed plenary. Viewing the problem before Us from the above perspectives, it would appear that our task is either (1) to reconcile, on the one hand, the parliament’s power of abolition and reorganization with, on the other, the security of tenure of members of the judiciary and the Supreme Court’s authority to discipline and remove judges or (2) to declare that either the power of the Supreme Court or of the Batasan is more paramount than that of the other. I believe, however, that such a manner of looking at the issue that confronts Us only confuses and compounds the task We are called upon to perform. For how can there be a satisfactory and rational reconciliation of the pretended right of a judge to continue as such, when the position occupied by him no longer exists? To suggest, as some do, that the solution is for the court he is sitting in not to be deemed abolished or that he should in some way be allowed to continue to function as judge until his constitutional tenure expires is obviously impractical, if only because we would then have the absurd spectacle of a judiciary with old and new courts functioning under distinct set-ups, such as a district court continuing as such in a region where the other judges are regional judges or of judges exercising powers not purely judicial which is offensive to the Constitution. The other suggestion that the incumbent of the abolished court should be deemed appointed to the corresponding new court is even worse, since it would deprive the appointing authority, the President, of the power to make his own choices and would, furthermore, amount to an appointment by legislation, which is a constitutional anachronism. More on this point later.chanroblesvirtuallawlibrary Inasmuch as pursuant to the analysis of the majority of the Members of this Court, in fact and in law, the structure of judicial system created by Batas Pambansa 129 is substantially different from that under the Judiciary Act of 1948, as amended, hence the courts now existing are actually being abolished, why do We have to indulge in any reconciliation or feel bound to determine whose power, that of the Batasang Pambansa or that of this Court, should be considered more imperious? It being conceded that the power to create or establish carries with it the power to abolish, and it is a legal axiom, or at least a pragmatic reality, that the tenure of the holder of an office must of necessity end when his office no longer exists, as I see it, We have no alternative than to hold that petitioners’ invocation of the independence-ofthe-judiciary principle of the Constitution is unavailing in the cases at bar. It is as simple as that. I might hasten to add, in this connection, that to insist that what Batas Pambansa 129 is doing is just a renaming, and not a substantial and actual modification or alteration of the present judicial structure or system, assuming a close scrutiny might somehow support such a conclusion, is pure wishful thinking, it being explicitly and unequivocally provided in the section in question that said courts "are deemed abolished" and further, as if to make it most unmistakably emphatic, that "the incumbents thereof shall cease to hold office." Dura lex, sed lex. As a matter of fact, I cannot conceive of a more emphatic way of manifesting and conveying the determined legislative intent about it. Now, why am I yielding to the above reasoning and conclusion? Why don’t I insist on championing the cause of the independence of the judiciary by maintaining that the constitutional safeguards thereof I have already enumerated earlier must be respected in any reorganization ordained by the parliament? My answer is simple. Practically all the Members of

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the Court concede that what is contemplated is not only general reorganization but abolition — in other words, not only a rearrangement or remodelling of the old structure but a total demolition thereof to be followed by the building of a new and different one. I am practically alone in contemplating a different view. True, even if I should appear as shouting in the wilderness, I would still make myself a hero in the eyes of many justices and judges, members of the bar and concerned discerning citizens, all lovers of the judicial independence, but understandably, I should not be, as I am not, disposed to play such a role virtually at the expense not only of my distinguished colleagues but of the Batasang Pambansa that framed the law and, most of all, the President who signed and, therefore, sanctioned the Act as it is, unless I am absolutely sure that my position is formidable, unassailable and beyond all possible contrary ratiocination, which I am not certain of, as I shall demonstrate anon. To start with, the jurisprudence, here and abroad, touching on the question now before Us cannot be said to be clear and consistent, much less unshakable and indubitably definite either way. None of the local cases 1 relied upon and discussed by the parties and by the Members of the Court during the deliberations, such as Borromeo, 2 Ocampo, 3 Zandueta, 4 Brillo, 5 etc. can, to my mind, really serve as reliable pole stars that could lead me to certainty of correctness. Of course, my instinct and passion for an independent judiciary are uncompromising and beyond diminution. Indeed, my initial reactions, publicly known, about Batas Pambansa 129 explaining academically its apparent tendency to invade the areas of authority of the Supreme Court, not to speak of its dangerously impairing the independence of the judiciary, must have, I imagine, created the impression that I would vote to declare the law unconstitutional. But, during the deliberations of the Court, the combined wisdom of my learned colleagues was something I could not discount or just brush aside. Pondering and thinking deeper about all relevant factors, I have come to the conviction that at least on this day and hour there are justifiable grounds to uphold the Act, if only to try how it will operate so that thereby the people may see that We are one with the President and the Batasan in taking what appear to be immediate steps needed to relieve the people from a fast spreading cancer in the judiciary of our country. Besides, the Philippines has somehow not yet returned to complete normalcy. The improved national discipline, so evident during the earlier days of martial law, has declined at a quite discernible degree. Different sectors of society are demanding urgent reforms in their respective fields. And about the most vehement and persistent, loud and clear, among their gripes, which as a matter of fact is common to all of them, is that about the deterioration in the quality of performance of the judges manning our courts and the slow and dragging pace of pending judicial proceedings. Strictly speaking, this is, to be sure, something that may not necessarily be related to lack of independence of the judiciary. It has more to do with the ineptness and/or corruption among and corruptibility of the men sitting in the courts in some parts of the country. And what is worse, while in the communities concerned, the malady is known to factually exist and is actually graver and widespread, very few, if any, individuals or even associations and organized groups, truly incensed and anxious to be of help, have the courage and possess the requisite legal evidence to come out and file the corresponding charges with the Supreme Court. And I am not yet referring to similar situations that are not quite openly known but nevertheless just as deleterious. On the other hand, if all these intolerable instances should actually be formally brought to the Supreme Court, it would be humanly impossible for the Court to dispose of them with desirable dispatch, what with the

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thousands of other cases it has to attend to and the rather cumbersome strict requirements of procedural due process it has to observe in each and every such administrative case, all of which are time consuming. Verily, under the foregoing circumstances, it may be said that there is justification for the patience of the people about the possibility of early eradication of this disease or evil in our judiciary pictured above to be nearing the breaking point. Withal, we must bear in mind that judicial reorganization becomes urgent and inevitable not alone because of structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force, but also when it becomes evident that a good number of those occupying positions in the judiciary, make a mockery of justice and take advantage of their office for selfish personal ends and yet, as already explained, those in authority cannot expeditiously cope with the situation under existing laws and rules. It is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, as I have just indicated, for the most ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to all temptations of graft and corruption, including the usual importunings and the fearsome albeit improper pressures of the powers that be. I am certain that the Filipino people feel happy that Batas Pambansa 129 encompasses both of these objectives, which indeed are aligned with the foundation of the principle of independence of the judiciary.chanrobles law library The above premises considered, I have decided to tackle our problem from the viewpoint of the unusual situation in which our judiciary is presently perilously situated. Needless to say, to all of us, the Members of the Court, the constitutional guarantees of security of tenure and removal-only-by the Supreme Court, among others, against impairment of the independence of the judiciary, which is one of the bedrocks and, therefore, of the essence in any "democracy under a regime of justice, peace, liberty and equality," (Preamble of the 1973 Constitution), are priceless and should be defended, most of all by the Supreme Court, with all the wisdom and courage God has individually endowed to each of Us. Withal, we are all conscious of the fact that those safeguards have never been intended to place the person of the judge in a singular position of privilege and untouchability, but rather, that they are essentially part and parcel of what is required of an independent judiciary where judges can decide cases and do justice to everyone before them ruat caelum. However, We find Ourselves face to face with a situation in our judiciary which is of emergency proportions and to insist on rationalizing how those guarantees should be enforced under such circumstance seem to be difficult, aside from being controversial. And so, in a real sense, We have to make a choice between adhering to the strictly legalistic reasoning pursued by petitioners, on the one hand, and the broader and more practical approach, which as I have said is within the spirit at least of the Constitution. My concept of the Constitution is that it is not just a cluster of high sounding verbiages spelling purely idealism and nobility in the recognition of human dignity, protection of individual liberties and providing security and promotion of the general welfare under a government of laws. With all emphasis and vehemence, I say that the fundamental law of the land is a living instrument which translates and adapts itself to the demands of obtaining circumstances. It is written for all seasons, except for very unusual instances that human ratiocination cannot justify to be contemplated by its language even if read in its broadest sense and in the most liberal way. Verily, it is paramount and supreme in peace and in war,

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but even in peace grave critical situations arise demanding recourse to extraordinary solutions. Paraphrasing the Spanish adage, "Grandes males, grandes remedios," such in ordinary problems justify exceptional remedies. And so, history records that in the face of grave crises and emergencies, the most constitutionally idealistic countries have, at one time or another, under the pressure of pragmatic considerations, adopted corresponding realistic measures, which perilously tether along the periphery of their Charters, to the extent of creating impressions, of course erroneous, that the same had been transgressed, although in truth their integrity and imperiousness remained undiminished and unimpaired. The Philippines has but recently had its own experience of such constitutional approach. When martial law was proclaimed here in 1972, there were those who vociferously shouted not only that the President had acted arbitrarily and without the required factual bases contemplated in the Commander-in-Chief clause of the 1935 Constitution, but more, that he had gone beyond the traditional and universally recognized intent of said clause by utilizing his martial law powers not only to maintain peace and tranquility and preserve and defend the integrity and security of the state but to establish a New Society. The critics contended that martial law is only for national security, not for the imposition of national discipline under a New Society. Due to its relevancy to Our present discussion, it is well for everyone to bear in mind that in this jurisdiction, this concept of martial law has already been upheld several times by this Court. I, for one, accepted such a construction because I firmly believe that to impose martial law for the sole end of suppressing an insurrection or rebellion without coincidentally taking corresponding measures to eradicate the root causes of the uprising is utter folly, for the country would still continue to lay open to its recurrence. I have made the foregoing discourse, for it is fundamentally in the light of this Court’s doctrines about the imposition of martial law as I have stated that I prefer to base this concurrence. To put it differently, if indeed there could be some doubt as to the correctness of this Court’s judgment that Batas Pambansa 129 is not unconstitutional, particularly its Section 44, I am convinced that the critical situation of our judiciary today calls for solutions that may not in the eyes of some conform strictly with the letter of the Constitution but indubitably justified by its spirit and intent. As I have earlier indicated, the Charter is not just a construction, of words to whose literal ironclad meanings we must feel hidebound, without regard to every Constitution’s desirable inherent nature of adjustability and adaptability to prevailing situations so that the spirit and fundamental intent and objectives of the framers may remain alive. Batas Pambansa 129 is one such adaptation that comes handy for the attainment of the transcendental objectives it seeks to pursue. While, to be sure, it has the effect of factually easing out some justices and judges before the end of their respective constitutional tenure sans the usual administrative investigation, the desirable end is achieved thru means that, in the light of the prevailing conditions, is constitutionally permissible.chanrobles law library : red Before closing, it may not be amiss for me to point out that Batas Pambansa 129, aside from what has been discussed about its effect on the guarantees of judicial independence, also preempts, in some of its provisions, the primary rule-making power of the Supreme Court in respect to procedure, practice and evidence. With the pardon of my colleagues, I would just like to say that the Court should not decry this development too much. After all, the legislature is expressly empowered by the Charter to do so, (Section 5(5), Article X of the Constitution of 1973) so much so, that I doubt if the Court has any authority to alter or modify

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any rule the Batasang Pambansa enunciates. Truth to tell, as Chairman of the Committee on the Revision of the Rules of Court, for one reason or another, principally the lack of a clear consensus as to what some of my colleagues consider very radical proposals voiced by me or my committee, We have regrettably procrastinated long enough in making our procedural rules more practical and more conducive to speedier disposal and termination of controversies by dealing more with substantial justice. So also have We, it must be confessed, failed to come up to expectations of the framers of the Constitution in our ways of disposing of administrative complaints against erring and misconducting judges. Of course, We can excuse Ourselves with the explanation that not only are We overloaded with work beyond human capability of its being performed expeditiously, but that the strict requisites of due process which are time consuming have precluded Us from being more expeditious and speedy. I feel I must say all of these, because if the above-discussed circumstances have not combined to create a very critical situation in our judiciary that is making the people lose its faith and confidence in the administration of justice by the existing courts, perhaps the Court could look with more sympathy at the stand of petitioners. I want all and sundry to know, however, that notwithstanding this decision, the independence of the judiciary in the Philippines is far from being insubstantial, much less meaningless and dead. Batas Pambansa 129 has precisely opened our eyes to how, despite doubts and misgivings, the Constitution can be so construed as to make it possible for those in authority to answer the clamor of the people for an upright judiciary and overcome constitutional roadblocks more apparent than real. To those justices, judges, members of the bar and concerned citizens whose eyes may be dimming with tears of disappointment and disenchantment because of the stand I have chosen to adopt in these cases, may I try to assuage them by joining their fervent prayers that some other day, hopefully in the near future, Divine Providence may dictate to another constitutional convention to write the guarantees of judicial independence with ink of deeper hue and words that are definite, clear, unambiguous and unequivocal, in drawing the line of demarcation between the Parliament and the Judiciary in the manner that in His Infinite wisdom would most promote genuine and impartial justice for our people, free, not only from graft, corruption, ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be. Presently, I am constrained from going along with any other view than that the Constitution allows abolition of existing courts even if the effect has to be the elimination of any incumbent judge and the consequent cutting of his constitutional tenure of office.chanroblesvirtuallawlibrary I cannot close this concurrence without referring to the apprehensions in some quarters about the choice that will ultimately be made of those who will be eased out of the judiciary in the course of the implementation of Batas Pambansa 129. By this decision, the Court has in factual effect albeit not in constitutional conception yielded generally to the Batasang Pambansa, and more specifically to the President, its own constitutionally conferred power of removal of judges. Section 44 of the Batasan’s Act declares that all of them shall be deemed to have ceased to hold office, leaving it to the President to appoint those whom he may see fit to occupy the new courts. Thus, those who will not be appointed can be considered as "ceasing to hold their respective offices," or, as others would say they would be in fact removed. How the President will make his choices is beyond Our power to control. But even if

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some may be eased out even without being duly informed of the reason therefor, much less being given the opportunity to be heard, the past actuations of the President on all matters of deep public interest should serve as sufficient assurance that when he ultimately acts, he will faithfully adhere to his solemn oath "to do justice to every man," hence, he will equip himself first with the fullest reliable information before he acts. This is not only my individual faith founded on my personal acquaintances with the character and sterling qualities of President Ferdinand E. Marcos. I dare say this is the faith of the nation in a man who has led it successfully through crises and emergencies, with justice to all, with malice towards none. I am certain, the President will deal with each and every individual to be affected by this reorganization with the best light that God will give him every moment he acts in each individual case as it comes for his decision. AQUINO, J., concurring:chanrob1es virtual 1aw library I concur in the result. The petitioners filed this petition for declaratory relief and prohibition "to declare the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129) unconstitutional."cralaw virtua1aw library The petition should have been dismissed outright because this Court has no jurisdiction to grant declaratory relief and prohibition is not the proper remedy to test the constitutionality of the law. The petition is premature. No jurisdictional question is involved. There is no justiciable controversy wherein the constitutionality of the said law is in issue. It is presumed to be constitutional. The lawmaking body before enacting it looked into the constitutional angle. Seven of the eight petitioners are practising lawyers. They have no personality to assail the constitutionality of the said law even as taxpayers. The eighth petitioner, Gualberto J. de la Llana, a city judge (who in 1977 filed a petition for declaratory relief assailing Presidential Decree No. 1229, which called for a referendum, De la Llana v. Comelec, 80 SCRA 525), has no cause of action for prohibition. He is not being removed from his position. The Judiciary Reorganization Law was enacted in utmost good faith and not "to cloak an unconstitutional and evil purpose." As ably expounded by the Chief Justice, in enacting the said law, the lawmaking body acted within the scope of its constitutional powers and prerogatives. GUERRERO, J., concurring:chanrob1es virtual 1aw library I concur with my distinguished and learned colleagues in upholding the constitutionality of the Judiciary Reorganization Act of 1980. For the record, however, I would like to state my personal convictions and observations on this case, a veritable landmark case, for whatever they may be worth.chanrobles lawlibrary : rednad The legal basis of the Court’s opinion rendered by our esteemed Chief Justice having been exhaustively discussed and decisively justified by him, a highly-respected expert and authority on constitutional law, it would be an exercise in duplication to reiterate the same cases and

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precedents. I am then constrained to approach the problem quite differently, not through the classic methods of philosophy, history and tradition, but following what the well-known jurist, Dean Pound, said that "the most significant advance in the modern science of law is the change from the analytical to the functional attitude." 1 And in pursuing this direction, I must also reckon with and rely on the ruling that "another guide to the meaning of a statute is found in the evil which it is designed to remedy, and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body." 2 I have no doubt in my mind that the institutional reforms and changes envisioned by the law are clearly conducive to the promotion of national interests. The objectives of the legislation, namely: (a) An institutional restructuring by the creation of an Intermediate Appellate Court, thirteen (13) Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts; (b) A re-apportionment of jurisdiction geared towards greater efficiency; (c) a Simplification of procedures; and (d) The abolition of the inferior courts created by the Judiciary Act of 1948 and other statutes, as approved by the Congress of the Philippines 3 are undoubtedly intended to improve the regime of justice and thereby enhance public good and order. Indeed, the purpose of the Act as further stated in the Explanatory Note, which is "to embody reforms in the structure, organization and composition of the Judiciary, with the aim of improving the administration of justice, of decongesting judicial dockets, and coping with the more complex problems on the present and forseeable future" cannot but "promote the welfare of society, since that is the final cause of law." 4 Hence, from the standpoint of the general utility and functional value of the Judiciary Reorganization Act, there should be no difficulty, doubt or disbelief in its legality and constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The notorious and scandalous congestion of court dockets is too well-known to be ignored as are the causes which create and produce such anomaly. Evident is the need to look for devices and measures that are more practical, workable and economical. 5 From the figures alone (301,497 pending cases in 1976; 351,943 in 1977; 404,686 in 1978; 426,911 in 1979; 441,332 in 1980; and 450,063 as of February 3, 1982) 6 the congested character of court dockets rising year after year is staggering and enormous, looming like a legal monster. But greater than the need to dispense justice speedily and promptly is the necessity to have Justices and Judges who are fair and impartial, honest and incorruptible, competent and efficient. The general clamor that the prestige of the Judiciary today has deteriorated and degenerated to the lowest ebb in public estimation is not without factual basis. Records in the Supreme Court attest to the unfitness and incompetence, corruption and immorality of many dispensers of justice. According to the compiled data, the total number of Justices and Judges against whom administrative charges have been filed for various offenses, misconduct, venalities and other irregularities reaches 322. Of this total, 8 are Justices of the Court of Appeals, 119 CFI Judges, 2 Criminal Circuit Court Judges, 8 Car Judges, 1 Juvenile and Domestic Relations Court Judge, 38 City Judges, and 146 Municipal Judges. The Supreme Court had found 102 of them guilty and punished them with either suspension, admonition, reprimand or fine. The number includes 1 CA Justice, 35 CFI Judges, 1 CCC Judge, 3 CAR Judges, 1 JDRC Judge, 9 City Judges and 53 Municipal

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Judges.chanroblesvirtuallawlibrary Seventeen (17) Judges have been ordered dismissed and separated from the service. And these are 3 CFI, 1 CAR, 1 City Judge and 12 Municipal Judges. Going over these administrative proceedings, it took an average of two-year period from the filing of the charge to the dismissal of the Respondent. In one case, the proceedings were terminated after seven years. How long the pending administrative cases will be disposed of, only time will tell as an increasing number of administrative cases are being filed by victims of judicial misconduct, abuse and arbitrariness. Excepting those who have been punished and dismissed from the service, there are many who have been castigated and censured in final judgments of the Supreme Court upon appeal or review of the decisions, orders and other acts of the respondent courts, Justices and Judges. To cite a few cases, Our decisions have categorically pronounced respondents’ actuations, thus: "deplorable, giving no credit to the Judiciary" 7; "everything was irregular and violative of all pertinent and applicable rules. The whole proceedings looked no more than a prearranged compromise between the accused and the judge to flaunt the law and every norm of propriety and procedure" 8; "there was a deliberate failure of respondent Judge to respect what is so clearly provided in the Rules of Court" 9; "It is unfortunate that respondent Judge failed to acquaint himself with, or misinterpreted, those controlling provisions and doctrines" 10; "The failure of the respondent Municipal Judge to yield obedience to authoritative decisions of the Supreme Court and of respondent Court of First Instance Judge and his deplorable insistence on procedural technicalities was called down in L-49828, July 25, 1981. For peremptorily dismissing the third party complaint on the ground that the motion to dismiss was ‘well-taken’ and respondent Judge did not elaborate, the Court remarked: "May his tribe vanish." 11 In one case, We noted "There is here something unusual, but far from palliating the gravity of the error incurred, it merely exacerbated it. . . . it did render the due process requirement nugatory, for instead of a fair and impartial trial, there was an idle form, a useless ceremony." 12 It is dishonorable enough to be publicly and officially rebuked but to allow these Judges and their ilk to remain and continue to preside in their courtrooms is a disgrace to the Judiciary. It is to be deplored that the Supreme Court has not found time to exercise its power and authority in the premises, for no charges or proceedings have been instituted against them. We have a list of these crooked Judges whose actuations have been found to be patently wrong and manifestly indefensible. There ought to be no objection or compunction in weeding them out from the service. If they are not booted out now, it will take from here to eternity to clean this Augean stable. Candidly, one reason for writing this concurring opinion is to call attention to these evils, abuses and wrongs which are surreptitiously but surely destroying the trust and faith of the people in the integrity of the entire Judiciary. Some members of the Court felt that these revelations would be like washing dirty linen in public. But these facts are of public and official records, nay court cases, and sooner or later, Truth will come out. In the light of these known evils and infirmities of the judicial system, it would be absurd and unreasonable to claim that the legislators did not act upon them in good faith and honesty of purpose and with legitimate ends. It is presumed that official duty has been regularly

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performed. 13 The presumption of regularity is not confined to the acts of the individual officers but also applies to the acts of boards, such as administrative board or bodies. and to acts of legislative bodies. 14 Good faith is always to be presumed in the absence of proof to the contrary, of which there is none in the case at bar. It could not be otherwise if We are to accord as We must, full faith and credit to the lawmakers’ deep sense of public service and the judicious exercise of their high office as the duly-elected representatives of the people.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph It is conceded that the abolition of an office is legal if attendant with good faith. 15 The question of good faith then is the crux of the conflict at bar. Good faith in the enactment of the law does not refer to the wisdom of the measure, the propriety of the Act, or to its expediency. The questions raised by petitioners and amicus curiae for their cause, viz: Why abolish all the courts? Why legislate out the judges? Why not amend the Rules of Court only? Is abolition of all courts the proper remedy to weed out corrupt and misfits in our Judiciary? — may not be inquired into by Us. "It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern." 16 The Courts "are not supposed to override legitimate policy and . . . never inquire into the wisdom of the law." 17 Chief Justice Fernando who penned the Morfe decision, writes that while" (i)t is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid," 18 he adds that it is "useful to recall what was so clearly stated by Laurel that ‘the Judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.’" 19 in any case, petitioners have not shown an iota of proof of bad faith. There is no factual foundation of bad faith on record. And I do not consider the statement in the sponsorship speech for Cabinet Bill No. 42 of Minister of Justice Ricardo J. Puno that the Bill would be a more efficient vehicle of "eliminating incompetent and unfit Judges" as indicative of impermissible legislative motive. 20 It may be true that while the remedy or solution formulated by the legislation will eradicate hopefully or at least minimize the evils and ills that infect and pester the judicial body, it will result in the actual removal of the Justices of the Court of Appeals and Judges of the lower courts. It is also true that whether it is termed abolition of office or removal from office, the end-result is the same — termination of the services of these incumbents. Indeed, the law may be harsh, but that is the law. Dura lex sed lex. The Justices and Judges directly affected by the law, being lawyers, should know or are expected to know the nature and concept of a public office. It is created for the purpose of effecting the ends for which government has been instituted, which are for the common good, and not the profit, honor or private interest of any one man, family or class of men. In our form of government, it is fundamental that public offices are public trust, and that the person to be appointed should be selected solely with a view to the public welfare. 21 In the last analysis, a public office is a privilege in the gift of the State. 22 There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. When an office is created by the Constitution, it cannot be abolished by the legislature, but when

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created by the State under the authority of the Constitution, it may be abolished by statute and the incumbent deprived of his office. 23 Acceptance of a judicial appointment must be deemed as adherence to the rule that "when the court is abolished, any unexpired term is abolished also. The Judge of such a court takes office with that encumbrance and knowledge." 24 "The Judge’s right to his full term and his full salary are not dependent alone upon his good conduct, but also upon the contingency that the legislature may for the public good, in ordaining and establishing the courts, from time to time consider his office unnecessary and abolish it."25cralaw:red The removal from office of the incumbent then is merely incidental to the valid act of abolition of the office as demanded by the superior and paramount interest of the people. The bad and the crooked Judges must be removed. The good and the straight, sober Judges should be reappointed but that is the sole power and prerogative of the President who, I am certain, will act according to the best interest of the nation and in accordance with his solemn oath of office "to preserve and defend its Constitution, execute its laws, do justice to everyone . . ." There and then the proper balance between the desire to preserve private interest and the desideratum of promoting the public good shall have been struck. 26 The Supreme Court has been called the conscience of the Constitution. It may be the last bulwark of constitutional government. 27 It must, however, be remembered ‘that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as courts." 28 The responsibility of upholding the Constitution rests not on the courts alone but on the legislatures as well. It adheres, therefore, to the well-settled principle that "all reasonable doubts should be resolved in favor of the constitutionality of a statute" for which reason it will not set aside a law as violative of the Constitution "except in a clear case." 29 Finally, I view the controversy presented to Us as a conflict of opinions — on judicial independence, whether impaired or strengthened by the law; on reorganization of the courts, whether abolition of office or removal therefrom; and on delegation of legislative power, whether authorized or unauthorized. Without detracting from the merits, the force and brilliance of their advocacies based on logic, history and precedents, I choose to stand on the social justification and the functional utility of the law to uphold its constitutionality. In the light of the contemporaneous events from which the New Republic emerged and evolved new ideals of national growth and development, particularly in law and government, a kind or form of judicial activism, perhaps similar to it, is necessary to justify as the ratio decidendi of Our judgment.chanroblesvirtuallawlibrary This is the time and the moment to perform a constitutional duty to affix my imprimatur and affirmance to the law, hopefully an act of proper judicial statesmanship. ABAD SANTOS, J., concurring and dissenting:chanrob1es virtual 1aw library I agree with the learned Chief Justice of the Philippines that Batas Pambansa Blg. 129 is not unconstitutional. Unlike Oscar Wilde, I choose not to yield to temptation by embellishing my concurrence lest I be accused of bringing coal to Newcastle. Accordingly, I will simply vote to dismiss the petition. However, I cannot agree with the Chief Justice when he says:jgc:chanrobles.com.ph

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". . . In the implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded the fullest consideration. There would be no plausibility then to the allegation that there is an unconstitutional taint to the challenged Act. Moreover, such a construction would be in accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be preferred."cralaw virtua1aw library It has already been ruled that the statute does not suffer from any constitutional infirmity because the abolition of certain judicial offices was done in good faith. This being the case, I believe that the Executive is entitled to exercise its constitutional power to fill the newly created judicial positions without any obligation to consult with this Court and to accord its views the fullest consideration. To require consultation will constitute an invasion of executive territory which can be resented and even repelled. The implicit suggestion that there could be an unconstitutional implementation of the questioned legislation is not congruent with the basic conclusion that it is not unconstitutional. DE CASTRO, J., concurring:chanrob1es virtual 1aw library I concur in the declaration that the law is not unconstitutional. May I, however, submit this separate opinion more to avoid being misunderstood by my brethren in the judiciary as not feeling for them as much concern as I should for their security of tenure which is raised as the main argument against the constitutionality of the law, than by way of giving added force or support to the main opinion so well-written by Our learned Chief Justice in his usual scholarly fashion. I, therefore, limit myself to a discussion that the assailed statute is not unconstitutional without having to suggest how it may be implemented in order that it could stand the most rigid test of constitutionality, for in that area, what is involved is purely an executive act of the President in whose wisdom, patriotism and sense of justice We should trust in how he would fulfill his sworn duties to see that the laws are faithfully executed and to do justice to every man. Moreover, while I also concur in the dismissal of the petition, I do so on the additional ground that petitioners have not fulfilled all the requisites for the exercise by this Court of its power of judicial inquiry — the power to declare a law unconstitutional. I The creation and organization of courts inferior to the Supreme Court is a constitutional prerogative of the legislature. This prerogative is plenary and necessarily implies the power to reorganize said courts, and in the process, abolish them to give way to new or substantially different ones. To contend otherwise would be to forget a basic doctrine of constitutional law that no irrepealable laws shall be passed. 1 The power to create courts and organize them is necessarily the primary authority from which would thereafter arise the security of tenure of those appointed to perform the functions of said courts. In the natural order of things, therefore, since the occasion to speak of security of

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tenure of judges arises only after the courts have first been brought into being, the right to security of tenure takes a secondary position to the basic and primary power of creating the courts to provide for a fair and strong judicial system. If the legislature, in the exercise of its authority, deems it wise and urgent to provide for a new set of courts, and in doing so, it feels the abolition of the old courts would conduce more to its objective of improving the judiciary and raising its standard, the matter involved is one of policy and wisdom into which the courts, not even the Supreme Court, cannot inquire, much less interfere with. By this secondary position it has to the primary power of the legislature to create courts, the security of tenure given to the incumbents should not be a legal impediment to the exercise of that basic power of creating the statutory courts which, by necessary implication, includes the power to abolish them in order to create new ones. This primary legislative power is a continuing one, and the resultant right of security of tenure of those appointed to said courts could not bring about the exhaustion of that power. Unquestionably, the legislature can repeal its own laws, and that power can never be exhausted without, as a consequence, violating a fundamental precept of constitutional and representative government that no irrepealable laws shall be passed. If the creation of courts is a legislative prerogative their abolition is, therefore, a matter of legislative intent. It involves the exercise of legislative power, an act of legislation which generally concerns policy in the formation of which the courts have no say. Initially, when the legislature creates the courts, it suffers from no limitation arising from the necessity of respecting the security of tenure of judges who are not yet there. This inherent character of fullness and plenitude of the power to create and abolish courts does not change when that same power is once more exercised thereafter, as the need therefor is felt. Which only goes to show that when done in good faith and motivated solely by the good and the well-being of the people, the exercise of the power is not meant to be restricted, curtailed, much less exhausted by the so-called judicial security of tenure. The passage of the Judiciary Reorganization Act of 1980 is no more than the exercise of the power vested by the Constitution on the legislative body of the Republic as described above. That power carries with it the duty and responsibility of providing the people with the most effective and efficient system of administration of justice. This is by far of more imperative and transcendental importance than the security of tenure of judges which, admittedly, is one of the factors that would conduce to independence of the judiciary — but first of all, a good, efficient and effective judiciary. A judiciary wanting in these basic qualities does not deserve the independence that is meant only for a judiciary that can serve best the interest and welfare of the people which in the most primordial and paramount consideration, not a judiciary in which the people’s faith has been eroded, a condition which the security of tenure, in some instances, may even be contributory.chanrobles law library In enacting the Judiciary Reorganization Act of 1980, the legislature is presumed to have been motivated by no other objective than to provide the people the kind of judicial machinery that would best serve their interest and welfare, in its belief that the present machinery is falling short of that measure of public service. It should, likewise, be presumed that it has been led to this low estimate of the utility and effectiveness of the present set-up of the judiciary after informing itself, with the facilities at its command, such as the power of legislative investigation, of the actual condition of the courts, particularly as to whether they continue to enjoy the trust, faith and confidence of the public, and what the cause or causes are of their erosion, if not loss, as is the keenly perceptible feeling of the people in general. Responsibility

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for this more or less extensive slowdown of the delivery of judicial service can be laid on no other than neither of the two components of a court — the procedural laws or rules that govern the workings of the courts, or the persons executing or applying them — or both. When two interests conflict as what had given rise to the present controversy — the duty of the legislature to provide society with a fair, efficient and effective judicial system, on one hand, and the right of judges to security of tenure, on the other, the latter must of necessity yield to the former. One involves public welfare and interest more directly and on a greater magnitude than the right of security of tenure of the judges which is, as is easily discernible, more of a personal benefit to just a few, as indeed only the judge affected could seek judicial redress of what he conceives to be its violation. Herein lies the propriety of the exercise of "police power" of the State, if this concept which underlies even the Constitution, has to be invoked as a constitutional justification of the passage of the Act in question. That is, if a conflict between the primary power of the legislature to create courts, and mere consequential benefit accorded to judges and justices after the creation of the courts is indeed perceivable, which the writer fails to see, or, at least, would disappear upon a reconciliation of the two apparently conflicting interests which, from the above disquisition, is not hard to find. It is, without doubt, in the essence of the exercise of police power that a right assertable by individuals may be infringed in the greater interest of the public good and general welfare. This is demonstrated in how the rights and freedoms enumerated in the Bill of Rights enjoyable by the entire people, not just by a handful in comparison, are made subject to the lawful exercise of the police power of the State. Viewed, therefore, from the abovementioned perspective, the general revamp of the judiciary involving both its components — the court as an office or institution, and the judges and justices that man them — should not find any legal obstacle in the security of tenure of judges. This security, after all, is no more than as provided for all other officials and employees in the civil service of the government in Section 3, Article XII-B of the Constitution which provides:jgc:chanrobles.com.ph "No officer or employees in the civil service shall be suspended or dismissed except for cause as provided by law."cralaw virtua1aw library The provision of Article XVII, Section 10 of the Constitution gives to judicial officials no more than a guarantee that their retirement age as fixed in the Constitution shall not be alterable at mere legislative pleasure. The equivalent provision in the 1935 Constitution was inserted for the first time because the retirement age before then was provided merely by statute not by the Constitution. If it comes to their removal or suspension, what gives them constitutional protection is the aforequoted provision which does not contemplate abolition of office when done in good faith, for removal implies the existence of the office, not when it is abolished. Admittedly, as has been held, abolition of office for no reason related to public welfare or for the good of the service, let alone when done in bad faith, amounts to an unlawful removal. 2 The abolition of the courts as declared in the Act as a result of a reorganization of the judiciary, as the Title of the law curtly but impressively announces, can by no means, from any viewpoint, be so branded. And whether by said reorganization, the present courts would be deemed abolished, as the law expresses such an unmistakable intent, the matter is one for the sole and exclusive determination of the legislature. It rests entirely on its discretion whether by the nature and extent of the changes it has introduced, it has done enough to

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consider them abolished. To give the Supreme Court the power to determine the extent or nature of the changes as to their structure, distribution and jurisdiction, before the clear intent to abolish them, or to declare them so abolished, is given effect, would be to allow undue interference in the function of legislation. This would be contrary to the primary duty of courts precisely to give effect to the legislative intent as expressed in the law or as may be discovered therefrom.chanrobles.com:cralaw:red From the above observation, it would be futile to insist that the present courts would not effectively be abolished by the Act in question. It might be to arrogate power for Us to say that the changes the law brings to the present judicial system, do not suffice for this Court to give effect to the clear intent of the legislative body. Where would the agrarian courts, the circuit criminal courts, the JDRC’s be in the judicial structure as envisioned by the law? Are they not abolished by merger with the regional trial courts, which by such merger, and by the other changes introduced by the law, would make said courts different from the present Courts of First Instance which, as a consequence, may then be considered abolished? Integrated as the present courts are supposed to be, changes somewhere in the judicial machinery would necessarily affect the entire system. The fact that the Supreme Court may specially assign courts to function as the special courts just mentioned, does not mean that the changes wrought are only superficial or "cosmetic" as this term has been used so often in the oral argument. Without the new law, these courts will remain fixed and permanent where they are at present. Yet in the course of time, the need for their independent existence may disappear, or that by changed conditions, where they are needed at present at a certain place, the need for them may be somewhere else in later years, if maximum benefit at the least expense is to be achieved, as always should be a most desirable goal and objective of government. Demonstrably then, the abolition of the courts is a matter of legislative intent into which no judicial inquiry, is proper, except perhaps if that intent is so palpably tainted with constitutional repugnancy, which is not so in the instant case. We have, therefore, no occasion, as earlier intimated, to speak of removal of judges when the reorganization of the judiciary would result in the abolition of the courts other than the Supreme Court and the Court of Tax Appeals. Hence, the provision of the Constitution giving to the Supreme Court power to dismiss a judge by a vote of eight justices does not come into the vortex of the instant controversy. Its possible violation by the assailed statute cannot happen, and may, therefore, not constitute an argument against the constitutionality of the law. Former Justice Barrera, in a speech before the Philippine Bar Association, 3 impliedly indorsed the judicial revamp when he enumerated the qualities of a good judge that the appointing power should consider in making new appointments to the judiciary upon its reorganization pursuant to the questioned Act. The words of the eminent jurist may well reflect the favorable reaction of the public in general to what the Act aims to achieve in the name of good and clean government. The present judicial incumbents, who have not in any way, by their acts and behavior while in office, tarnished the good image that the judiciary should have, therefore, have no cause for apprehension that what they are entitled to under the Constitution by way of security of tenure will be denied them, considering the publicly known aim and purpose of the massive judicial revamp, specially as cherished with deep concern by the President who initiated the move when he created the Judiciary Reorganization Committee to recommend needed and appropriate judicial reforms.

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If the only obstacle to a verdict in favor of constitutionality of the law is its possible effect of impairing the security of tenure of the incumbents, We may have the following facts to consider:chanrob1es virtual 1aw library 1. Under the 1973 Constitution all incumbent judges and justices may continue in office until replaced or reappointed by the President. As to those judicial officials, no security of tenure, in the traditional concept, attaches to their incumbency which is, in a real sense, only a holdover tenure. How the President has exercised this immense power with admirable restraint should serve as the strongest guarantee of how justice and fairness will be his sole guide in implementing the law. 2. As to the rest of the incumbents, they are all appointees of Our present President, and he should feel concerned more than anyone else to protect whatever rights they may rightfully claim to maintain their official standing and integrity. They need have no fear of being ignored for no reason at all, much less for mere spirit of vindictiveness or lack of nobility of heart. From the foregoing, it would become apparent that only in the implementation of the law may there possibly be a taint of constitutional repugnancy, as when a judge of acknowledged honesty, industry and competence is separated, because an act of arbitrariness would thereby be committed, but the abolition of the courts as decreed by the law is not by itself or per se unconstitutional. Consequently, the law, the result of serious and concerned study by a highly competent committee, deserves to be given a chance to prove its worth in the way of improving the judiciary. If in its implementation, any one, if at all, feels aggrieved, he can always seek judicial redress, if he can make out a case of violation of his right of security of tenure with uncontrovertible clarity, as when the separation is very arbitrary in the peculiar circumstances of his case, for an act of arbitrariness, under any constitution, is unpardonable. II This petition should also be dismissed for being premature, as is the stand of Justice Aquino. The petition asks this Court to exercise its power of judicial inquiry, the power to declare a law unconstitutional when it conflicts with the fundamental law (People v. Vera, 65 Phil. 56). This power has well-defined limits, for it can be exercised only when the following requisites are present, to wit: (1) There must be an actual case or controversy; (2) The question of constitutionality must be raised by the proper party; (3) He should do so at the earliest opportunity; and (4) The determination of the constitutionality of the statute must be necessary to a final determination of the case. I am of the opinion that the petition does not present an actual controversy nor was it filed by the proper parties.cralawnad The main ground for which the constitutionality of the Judiciary Reorganization Act of 1980 is assailed is that it is violative of the security of tenure of justices and judges. The only persons who could raise the question of constitutionality of the law are, therefore, the actual incumbents of the courts who would be separated from the service upon the abolition of the

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courts affected by the law, on the theory as advanced by petitioners that their judicial security of tenure would be violated. Olongapo City Judge de la Llana, the only judge among the petitioners, has not been separated from the service. Nor is his separation already a certainty, for he may be appointed to the court equivalent to his present court, or even promoted to a higher court. Only when it has become certain that his tenure has been terminated will an actual controversy arise on his allegation of a fact that has become actual, not merely probable or hypothetical. The present petition may neither be allowed as a taxpayer suit. A taxpayer may bring an action to raise the question of constitutionality of a statute only when no one else can more appropriately bring the suit to defend a right exclusively belonging to him, and, therefore, would localize the actual injury to his person, and to no other. For a "proper party" to invoke the power of judicial inquiry, as one of the requisites in the exercise of such power, does not mean one having no better right, one more personalized, than what he has as a member of the public in general. With the incumbent judges undoubtedly being the ones under petitioners’ theory, who would suffer direct and actual injury, they should exclude mere taxpayers who cannot be said to suffer as "direct" and "actual" an injury as the judges and justices by the enforcement of the assailed statute, from the right to bring the suit. The validity of the foregoing observation becomes more evident when We consider that only after the fate of the present incumbents is known, whether they have been actually separated or not, would the present courts be declared abolished. For the law clearly continues their existence until all the new courts have been filled up with new appointments, or at least such number as would be equal to the number of actual incumbents, and they are the very courts to which they may lay claim to the right to continue therein, so that the status of each and everyone of them has thereby been made certain. Only then, upon the actual abolition of the courts, may there possibly be a violation of the security of tenure; as contended, that would give rise to an "actual controversy" in which the "proper party" can be no other than the judges who feel aggrieved by their non-appointment to the new courts. It would, therefore, not be proper to declare the law void at this stage, before it has even been given a chance to prove its worth, as the legislature itself and all those who helped by their exhaustive and scholarly study, felt it to be an urgent necessity, and before any of the proper parties who could assail its constitutionality would know for a fact, certain and actual, not merely probable or hypothetical, that they have a right violated by what they could possibly contend to be an unconstitutional enforcement of the law, not by a law that is unconstitutional unto itself. I am, therefore, for giving the law a chance to be put into application so as not to douse great popular expectations for the courts to regain their highest level of efficiency had reputation for probity. Inevitably, this is to be so since only when the law is fully implemented will all the courts affected be declared abolished, undoubtedly to avoid an interregnum when the country is without any court, except the Supreme Court, the Court of Tax Appeals and the Sandigan. Only then will it be known whether an actual controversy would arise because any of the incumbents have been left out in the restructured judiciary. There would then be also a proper party to assail the constitutionality of the law, conformably to the conditions requisite for the exercise of the power of judicial inquiry which by their stringent character, together with the constitutional prescription of a comparatively higher

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vote to declare a law unconstitutional, reveal a salutary principle of government that a law should, by all reasonable intendment and feasible means, be saved from the doom of unconstitutionality, the rule corollary thereto being that if a law is susceptible to two interpretations, one of which would make it constitutional that interpretation should be adopted that will not kill the law. It is to adhere to the above principles that the submission is made herein, that while in the implementation of the law, constitutional repugnancy may not entirely be ruled out, a categorical ruling hereon not being necessary or desirable at the moment, the law itself is definitely not unconstitutional. 4 Any of the incumbent judges who feel injured after the law shall have been implemented has adequate remedy in law, with full relief as would be proper. But surely, the benefits envisioned by the law in the discharge of one of the basic duties of government to the people — the administration of justice — should not be sacrificed, as it would be, if the law is, as sought in the present petition, declared void right now, on the claim of a few being allegedly denied a right, at best of doubtful character, for the claim would seem to rest on an unsupportable theory that they have a vested right to a public office. Just one more point. The law in question is not self-executing in the sense that upon its effectivity, certain judges and justices cease to be so by direct action of the law. This is what distinguishes the Act in question from R.A. No. 1186 involved in the Ocampo case, 5 which by its direct action, no act of implementation being necessary, all the judges whose positions were abolished, automatically ceased as such. The Act in question, therefore, is not as exposed to the same vulnerability to constitutional attack as R.A. No. 1186 was. Yet by the operation of the Constitution with its wise provision on how a law may be declared unconstitutional, R.A. No. 1186 stood the test for it to be enforced to the fullness of its intent, which was, as in the law under consideration, identified with public interest and general welfare, through a more efficient and effective judicial system as the Judiciary Reorganization Act of 1980 seeks to establish. Hence, the constitutionality of the law should not be assailed, and the law itself, striken down, on the ground that some judges or justices may be removed or separated in violation of their security of tenure. The law does not directly operate with that effect. It is in how the law would be implemented that this feared eventuality may or may not occur. We would then be killing the law on a mere speculation if We do so at this stage. This would be an injudicious act done in reckless disregard of the safeguards built around a law to defend it when its constitutionality is attacked; first, the presumption that a law is constitutional; second, when a law is susceptible to two interpretations one that would make it constitutional, the other, unconstitutional, the former should be adopted; and third, the Constitution itself which ordains that a law may not be declared unconstitutional except on the vote of at least ten (10) members of the Supreme Court, more than what is required for an ordinary decision of the Court en banc. This is not to mention the stringent requisites for the exercise of the power of judicial inquiry as already adverted to, all designed to save the law from the dire fate of unconstitutionality.chanrobles virtual lawlibrary To the writer, the question before this Court is a simple matter of choosing between protecting some judges from possible separation, as the implementation of the law to achieve its primary purpose of improving the judiciary may have to result in, or serving the interest of the entire society through an honest, efficient and effective judiciary. For, it is unthinkable that what is for the good of the people as a whole could have been meant by the Constitution to be

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sacrificed for the sake of only a few. The greatest good for the greatest number is an unwritten rule, more firm and enduring than any of the postulates spread in our written Constitution. This, I might say, is the main theme of this separate opinion, otherwise expressed in the well-known and a time-honored maxim: "Salus populi est suprema lex."cralaw virtua1aw library MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library There is unqualified adherence on my part to the dismissal of the Petition filed in this case. If I am writing this separate concurrence, it is merely to state certain views I entertain in regards to the constitutionality of Batas Pambansa Blg. 129. The controversy in this case involves two constitutional provisions. Article X, Section 1, of the Organic law provides that the legislative has the power to establish inferior Courts by law. Section 7 of the same Article reads:jgc:chanrobles.com.ph "SEC. 7. The Members of the Supreme Court and judges of inferior courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal."cralaw virtua1aw library There should be no conflict between the two provisions. Both should be harmonized. 1. a) It is a fundamental proposition that the legislative power to create Courts ordinarily includes the power to organize and to reorganize them, and that the power to abolish Courts is generally coextensive with the power to create them. The power to abolish was not intended to be qualified by the permanence of tenure (Opinion of Chief Justice Ricardo Paras in Ocampo v. Secretary of Justice, 51 O.G. 147 [1955], citing McCulley v. State, 53 SW 134; Halsey v. Gaines, 2 Lea 316). The right of Judges to hold office during good behavior until they reach the age of 70 years, or become incapacitated to discharge the duties of their office, does not deprive Congress of its power to abolish, organize or reorganize inferior Courts (Brillo v. Enage, 94 Phil. 732, 735, citing Zandueta v. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub. Officer, 904-5). Judges of those Courts take office with that encumbrance and knowledge. "The legislative power to create a court carries with it the power to abolish it. When the court is abolished any unexpired term is abolished also. The judge of such court takes office with that encumbrance and knowledge. Perkins v. Corbin, 45 Ala. 103, 6 Am. Rep. 698, State, ex rel. Thomas v. Gunter, 170 Ala. 165, 54 So 283, Et. Al."cralaw virtua1aw library The importance and the imperative of maintaining the independence of the Judiciary is undisputed. At the same time, the power of Congress under the Constitution cannot be abridged. For, in the last analysis, it is not the security of tenure per se that is the only safeguard to the independence of the Judiciary. It is the character and the mettle of the Judges who sit on the Bench. Has not the impression been created in the public mind that there are those who have abused the prerogatives of their judicial position knowing that they are untouchables by virtue of the permanence of their tenure? b) A distinction should be made between tenure of Judges and tenure of Courts. Section 1

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heretofore mentioned refers to the "Judiciary" as a fundamental department of Government. Section 7 quoted above refers to the tenure of office of "individual" Judges (inclusive of Justices of inferior Courts); that is to say, tenure of office is a matter concerning the individual Judge. This "individuality" character of Section 7 is supported by the clause that the Supreme Court has the power to discipline individual judges of inferior Courts. A legislature is not bound to give security of tenure to Courts. Courts can be abolished. In fact, the entire judicial system can be changed. If that system can no longer admit of change, woe to the wheels of progress and the imperatives of growth in the development of the Judiciary. To hold that tenure of Judges is superior to the legislative power to reorganize is to render impotent the exercise of that power. It may even be stated that, under Section 7, supra, Judges are entailed to their Courts, from which they cannot be separated before retirement age except as a disciplinary action for bad behavior. Under Section 1, Courts are not entailed to their Judges, because the power of the legislative to establish inferior Courts presupposes the power to abolish those Courts. If an inferior Court is abolished, the Judge presiding that Court will necessarily have to lose his position because the abolished Court is not entailed to him. c) The constitutional guarantee of tenure of Judges applies only as their Courts exist. As long as those Courts exist, the Judges cannot be ousted without just cause; that is the extent of the constitutional provision relative to security of tenure of Judges. Upon declaration of the completion of the reorganization as provided for in the Reorganization Act, the affected Courts "shall be deemed automatically abolished." There being no Courts, there are no offices for which tenure of Judges may be claimed. By the abolition of those offices, the rights to them are necessarily extinguished (Manalang v. Quitoriano, 94 Phil. 903 [1954]). 2. I am satisfied that the challenged law was enacted by the Batasang Pambansa in response to an urgent and pressing public need and not for the purpose of affecting adversely the security of tenure of all Judges or legislating them out to the detriment of judicial independence. It should not be said of the Batasang Pambansa that its power of abolition of Courts has been used to disguise an unconstitutional and evil purpose to defeat the security of tenure of Judges. The Judiciary Reorganization Act of 1981 sufficiently complies with the bona fide rule in the abolition of public office, as clearly explained in the main opinion. Besides, every presumption of good faith in its actuations must be accorded a coordinate and coequal branch of government, supreme within the limits of its own sphere, until that presumption is clearly overcome. There is no showing that the Reorganization Act was motivated for personal or political reasons as to justify the interference by the Court (Garvey v. Lowell, 199 Mass 47, 85 N.E. 182, 127 A.S.R. 468; State v. Eduards, 40 Mont. 287; 106 Pac. 695, 19 R.C.L. 236; Llanto v. Dimaporo, 16 SCRA 599 [1966]). Public interest and public good, as the legislative body views it, must be balanced with tenure of Judges, which is an individual right. Reverting to Section 1 and Section 7, supra, the former is the weightier, because the "Judiciary" is of more importance to the welfare of the country than the tenure of office of an individual Judge. If a Judge is removed without cause, there can be damage to the public welfare to some extent, but maintenance of a Court that does not meet the requirements of progressive Government, can cause incalculable prejudice to the people. 3. Nor does a conflict exist with the power of discipline vested in the Supreme Court by the present Constitution reading: the Supreme Court shall have the power "to discipline Judges of

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inferior Courts, and, by a vote of at least 8 members, order their dismissal." Absent the Court, it would be futile to speak of the Supreme Court’s power to discipline. Thus, where the legislature has willed that the Courts be abolished, the power to discipline cannot pose an obstacle to the abolition. The power to discipline can come into play only when there is removal from an existing judicial office, but not when that office is abolished. The reorganization of the judicial system with the abolition of certain Courts is not an exercise of the power to discipline the Judges of the abolished Courts. It is of significance to note that the power of dismissal vested in the Supreme Court by the 1973 Constitution is delimited by its power to discipline. Absent any need for discipline and the power to dismiss does not exist. Being circumscribed in scope, it may well be asked: does the grant of the power of discipline and dismissal in the Supreme Court deprive the executive of the power of removal? Is it not more in keeping with the allocation of powers in our government to state that the Supreme Court shares its power to dismiss with the executive power of removal? For is not the power of removal basically executive in nature, as an incident to the power of appointment, which is the prerogative of the Chief Executive alone? As in the case of appointments, Section 5(6), Article X of the Constitution provides that the Supreme Court shall appoint its officials and employees. However, is not this power shared with the power of appointment of the executive who appoints some of the Court officials? These questions could lend themselves to an in-depth study in the proper case. 4. The abolition would be no deprivation either of due process of law. A public office cannot be regarded as the "property" of the incumbent. A public office is not a contract (Segovia v. Noel, 47 Phil. 543 [1925]). A public office is a public trust (Section 1, Article XIII, 1973 Constitution). It is a privilege in the gift of the State (Brown v. Russel, 166 Mass. 14, 43 NE 1005, 32 LRA 253 cited also in Tañada & Carreon, Political Law of the Philippines, Vol. 2, p. 537). The officers are the servants of the people and not their rulers (22 R.C.L. 378-379, cited in Martin, Administrative Law, Law on Public Officers and Election Law, p. 112, 1970 ed.). Besides, it bears stressing that there is no removal from office but abolition of the office itself. 5. The questioned statute is in keeping with major reforms in other departments of government. "The thrust is on development." It is "the first major reorganization after four generations." It does not provide for a piecemeal change, which could be ineffective. It goes to the roots and does not just scratch the surface of our judicial system. Its main objectives are an improved administration of justice, the "attainment of more efficiency in the disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the proper meting out of justice." These aims are policy matters of necessity in the pursuit of developmental goals within the Judiciary. 6. The Reorganization Act reorganizes the entire judicial system excluding the Supreme Court, which is the only constitutional Court, and the Sandiganbayan. It envisages institutional reforms in the Philippine judiciary. It does not simply change the names of the Courts. The facts herein are dissimilar from those in Brillo v. Enage (94 Phil. 732 [1954]) where the position of Justice of the Peace, although ostensibly abolished, was merely changed to Municipal Judge after the municipality of Tacloban was converted into a city with its own charter. Significant among the institutional changes and procedural reforms are:chanrob1es virtual 1aw library

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The Intermediate Appellate Court This Court is now constituted into ten (10) divisions instead of fifteen (15), five members composing each division, and a majority vote of three members being needed for a decision. This obviates the cumbersome procedure, in case of dissent, of assigning two other members to compose a "division of five." It also allows flexibility in that any three members of a division, arriving at unanimity, can promulgate a decision.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Now provided for is specialization into four (4) Civil Cases Divisions, two (2) Criminal Cases Divisions and four (4) Special Cases Divisions. The specialization is expected to contribute to the expeditious disposal of cases. The Court has been given original jurisdiction to issue Writs of mandamus, prohibition, certiorari,habeas corpus, quo warranto and auxiliary writs or processes whether or not in aid of its appellate jurisdiction. This would undoubtedly ease the burden of the Supreme Court where numerous such cases are filed daily. It has exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or award of quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the exclusive appellate jurisdiction of the Supreme Court in accordance with the Constitution. The Intermediate Appellate Court would now have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings (Sec. 9). This does away with the delays attendant to the remand of cases to the lower trial Courts. Regional Trial Courts There are now thirteen (13) Judicial Regions, the same as the present administrative and Batasang Pambansa Regions, instead of sixteen (16) Judicial Districts. A Judge is appointed to a region, which is his official station. This ensures mobility since a Judge may be assigned anywhere within the Region without applying the constitutional limitation of six months. Additionally, it can remedy temporary inequalities of caseloads in trial Courts. Specialized Courts are integrated into the Regional Trial Courts. Thus, Regional Trial Courts would try all cases within its jurisdiction unless special cases are assigned to them, in which case, they remain as Branches of Regional Trial Courts. Special procedures and technical rules governing special Courts will continue to remain applicable in Branches assigned those special cases. Metropolitan Trial Courts There is one Metropolitan Trial Court with several Branches for large urban areas. The

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appointment of Judges would be to a Metropolitan Trial Court, although a Judge may be assigned by the Supreme Court to any Branch of the Metropolitan Trial Court as demanded by the exigencies of the service. The Supreme Court may designate certain Branches of said Courts to exercise special jurisdiction over certain cases, unlike the present set-up where special jurisdiction applies only to cases of traffic violations. Municipal Trial Courts/Municipal Circuit Trial Courts Municipal Trial Courts may now be designated by the Supreme Court to exercise special jurisdiction over certain cases, thereby resulting in overall flexibility. They can also be circuitized with those in cities not forming part of metropolitan areas. One notable change between the old and the new set-up is that Judges of these Courts will now be Presidential appointees unlike presently where the incumbent Judges are merely designated by the Supreme Court in an Administrative Order to sit in existing Municipal Courts and Municipal Circuit Courts. 7. There are innovative features in the Act that commend themselves:chanrob1es virtual 1aw library a) The confusing and illogical areas of concurrent jurisdiction between the trial Courts have been entirely eliminated. b) Under Section 39, there is a uniform period for appeal of fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from. A record on appeal is no longer required to take an appeal. The entire original record is now to be transmitted. c) Under Section 40, in deciding appealed cases, adoption by reference of findings of fact and conclusions of law as set forth in the decision, order, or resolution appealed from, is also provided for. This will expedite the rendition of decisions in appealed cases. d) Section 42 provides for "a monthly longevity pay equivalent to 5% of the monthly basic pay for Justices and Judges of the courts herein created for each five years of continuous, efficient, and meritorious service rendered in the Judiciary, Provided that, in no case shall the total salary of each Justice or Judge concerned, after this longevity pay is added, exceed the salary of the Justice or Judge next in rank." Thus, Justices and Judges who may not reach the top, where unfortunately there is not enough room for all, may have the satisfaction of at least approximating the salary scale of those above him depending on his length of service. 8. But while the law itself as written is constitutional, the manner in which it will be administered should not be tainted with unconstitutionality (Myles Salt Co. v. Board of Commrs., 292 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an unconstitutional exercise of power the following safeguards are recommended and/or expected to be undertaken:chanrob1es virtual 1aw library

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a) The President can be expected to indicate a reasonable time frame for the completion of the reorganization provided for in the Act and the issuance of the corresponding implementing Order. b) Appointments and their effectivity should be simultaneous with, or as close as possible, to the declaration by the President of the completion of the reorganization under Section 44 to avoid any detriment to the smooth and continuous functioning of the judicial machinery.chanroblesvirtuallawlibrary c) The services of those not separated should be deemed uninterrupted, as recommended by the Committee on Judicial Reorganization (Article XI of its Report). 9. For the speedy implementation of the law, the Supreme Court can be expected to submit to the President within thirty (30) days from the date of finality of its Decision the staffing pattern for all Courts required by Section 43. I am constrained to disagree with the suggestion of one of the amici curiae that the staffing pattern be made to include the names of Judges. The staffing pattern for Judges is already clearly and explicitly provided in the law itself which enumerates the various Judges and Justices in their hierarchical order. Furthermore, to include the superior positions of Judges would depart from the traditional concept of a staffing pattern, which refers more to personnel organization and corresponding salaries of inferior employees. It is also constitutionally objectionable in that it would interfere with the prerogative of appointment intrinsically executive in nature (Guevara v. Inocentes, 16 SCRA 379 [1966]; Government of the Philippines v. Springer, 50 Phil. 259 [1927]). The President may not be deprived of, nor be limited in, the full use of his discretion in the appointment of persons to any public office. Nothing should so trench upon executive choice as to be, in effect, judicial designation. 10. A word of explanation. If I had resolved not to inhibit myself in this case upon motion filed by petitioners, it was because the Committee on Judicial Reorganization, of which I was privileged to be a member, confined its work to the recommendation of options and guidelines in the task of reorganization. The Committee had no part whatsoever in the drafting of the bill nor in the public hearings conducted. In fact, some of its recommendations like the circuitization or regionalization of the Intermediate Appellate Court, the appellation of members of the Judiciary, the confinement of the jurisdiction of the Intermediate Appellate Court merely to appellate jurisdiction, the adoption of the system found in the United Kingdom and in Commonwealth countries of having a Court of general jurisdiction with trial and appellate divisions, were not availed of in the final Act. 11. Lastly, but by no means the least, I entertain no doubt that reliance can be placed on the good faith of the President that all the deserving, upon considerations of "efficiency, integrity, length of service and other relevant factors," shall be appointed to a strengthened and revitalized judicial system in the interest of public service; that appointments will not be unduly delayed: and that appointees will be evaluated thoroughly to ensure quality and impartiality in the men and women who will keep vigil over our judicial ramparts. ERICTA, J., concurring:chanrob1es virtual 1aw library I concur in the view that Judiciary reorganization law is not unconstitutional. It does not

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violate the principle of security of tenure of Judges. The constitution grants to the Batasang Pambansa the power to create courts inferior to the Supreme Court (Article X, Section 1). All existing inferior courts were created by law. No law is irrepealable. The power to create an office includes the power to abolish the same. (Urgelio v. Osmeña, 9 SCRA 317; Maza v. Ochave, 20 SCRA 142).chanrobles.com.ph : virtual law library Security of tenure cannot be invoked when there is no removal of a public officer or employee but an abolition of his office. (Manalang v. Quitoriano, 94 Phil. 903; Cruz v. Primicias, 23 SCRA 998; Baldoz v. Office of the President, 78 SCRA 354, 362) A distinction should be made between removal from office and abolition of an office. Removal implies that the office subsists after ouster, while, in abolition, the office no longer exists thereby terminating the right of the incumbent to exercise the rights and duties of the office. (Canonigo v. Ramiro, 31 SCRA 278) The power of the legislative branch of the government to abolish courts inferior to the Supreme Court has long been established. (Ocampo v. Secretary of Justice, 51 O.G. 147) What is only needed is that the abolition passes the test of good faith. It need only be shown that said abolition of the courts is merely incidental to a bona fide reorganization. (Urgelio v. Osmeña, supra) It is unthinkable to impute bad faith to the Presidential Committee on Judicial Reorganization composed of four (4) distinguished members of the Supreme Court, the Minister of Justice and the Deputy Minister of Justice, and to the members of the Batasang Pambansa whose combined efforts after a careful study and deliberation resulted to the enactment of a bill now signed into law as Batasang Pambansa Blg. 129. In his sponsorship speech, Justice Ricardo C. Puno declared the objectives of the Judiciary Reorganization Law to be the following: (1) the attainment of more efficiency in the disposal of cases; (2) the improvement in the quality of decisions by the courts that will result from the easing of court dockets; and (3) structural changes to meet the exigencies of present day Philippine Society and of the foreseeable future. Admittedly, in the implementation of the law, some Judges and Justices may be adversely affected. But in a conflict between public interest and the individual interest of some Judges and Justices, the public weal must prevail. The welfare of the people is the supreme law. The implementation of the law will entail appointments to the new courts. The power of appointment is the exclusive prerogative of the President. The implementation of the law should be left exclusively to the wisdom, patriotism and statesmanship of the President.chanrobles lawlibrary : rednad PLANA, J., concurring and dissenting:chanrob1es virtual 1aw library As the lawmaking body has the power to create inferior courts and define, prescribe and apportion their jurisdiction, so it has the power to abolish or replace them with other courts as long as the act is done in good faith and not for the purpose of attaining an unconstitutional end. Good faith has thus become the crucial issue in the case at bar. Upon an examination of the legislative history of Batas Pambansa 129, as has been done in the main opinion, it is manifest that actual, not merely presumed good faith attended its

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enactment. On this basis, I concur in the opinion penned by the learned Chief Justice, qualified only by the following observations:chanrob1es virtual 1aw library 1. Executive consultation with the Supreme Court. — I believe the President is under no obligation to consult with the Supreme Court; and the Supreme Court as such is not called upon to give legal advice to the President. Indeed, as the Supreme Court itself has said, it cannot give advisory opinions (Bacolod-Murcia Planters’ Asso., Inc. v. Bacolod-Murcia Milling Co., 30 SCRA 67; NWSA v. Court of Industrial Relations, 90 SCRA 629) even to the President. In the drafting of the present Constitution, there was an attempt to vest the Supreme Court with the function of giving advisory opinions. The framers of the Constitution, however, did not see fit to adopt the proposal. If the President should consult the Supreme Court on the implementation of Batas Pambansa 129 and the Supreme Court should give its advice (leaving aside the question of procedure), I believe the President would be free to follow or disregard the advice; but, in either case, there would be no guarantee that the implementing action would be upheld in one case or stricken down in the other. 2. Undue delegation of legislative powers. — The petitioners have also assailed the constitutionality of Batas Pambansa 129 on the ground that a provision thereof (regarding fixing of compensation and allowances for members of the Judiciary) constitutes an undue delegation unto the President of legislative power. As pointed out in the main opinion, the legislature has provided ample standards or guidelines for the implementation of the delegated power, which makes the delegation inoffensive. I would like to add however some observations on the doctrine of undue delegation of legislative power. Under the old Constitution, when the abiding rule was separation of legislative and executive powers, there was good reason to maintain the doctrine of non-delegation of legislative power. Otherwise, the principle of separation of governmental powers could be negated via unbridled delegation of legislative power. The 1973 Constitution has however radically changed the constitutional set-up. There is now a commingling or fusion of executive and legislative powers in the hands of the same group of officials. Cabinet members play a leading role in the legislative process, and members of the Batasan actively discharge executive functions. The Prime Minister indeed must come from its ranks. Under the circumstances, there is really not much sense in rigidly upholding the principle of non-delegation of legislative power, at least vis-a-vis the Executive Department. In a very real sense, the present Constitution has significantly eroded the hoary doctrine of non-delegation of legislative power, although it has retained some provisions of the old Constitution which were predicated on the principle of nondelegation, this time perhaps not so much to authorize shifting of power and thereby correspondingly reduce the incidence of "undue" delegation of legislative power, as to avert the abdication thereof. "In times of war or other national emergency, the Batasang Pambansa may by law authorize the President for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner

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withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next adjournment." (Art. VIII, Sec. 15.) "The Batasang Pambansa may by law authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts." [Ibid., Sec. 17(2).] TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library Undoubtedly, no more crucial and transcendental issue of such magnitude has confronted the Philippine judiciary than in the present case. The challenged Act, Batas Pambansa Blg. 129 by its title would reorganize all existing courts (except the nine-member Sandiganbayan 1 and the three-member Court of Tax Appeals) and upon declaration by the President of the completion of the reorganization would unprecedentedly deem all the said courts "automatically abolished" en masse and "the incumbents thereof shall cease to hold office." 2 The total abolition involves a total of 1,663 judicial positions with 1,180 incumbent judges (and 483 vacancies) as of January 26, 1982 and the Act would effect an increase of 230 judicial positions raising the total of judicial positions to be filled by new appointments to 1,893. Notwithstanding the great deference due to enactments of the Batasan, I regretably find myself unable to join the ranks of my esteemed colleagues in the majority who uphold the constitutionality of the Act and have voted to dismiss the petition, for the following main considerations and reasons: — 1. I go by the ruling of the numerical majority of seven Justices (namely, Pablo, Cesar Bengzon, Montemayor, Jugo, Bautista, Roberto Concepcion and J.B.L. Reyes, JJ.,) in the leading 1955 case of Ocampo 3 who fell short by one vote to reach the constitutionally required 2/3 majority (at the time 8 out of an 11-member Supreme Court) to declare unconstitutional and invalid Section 3 of Republic Act 1186 abolishing the positions of 18 judges-at-large and 15 cadastral judges and removing or legislating out the incumbent judges from office as against the contrary vote of a minority of 4 Justices (namely, then Chief Justice Paras and Padilla, Alex Reyes and Labrador, JJ.,) with the paradoxical situation that the last three named Justices voted for the validity of the Act as a remedial measure that abolished said positions without permanent station which subjected them to a rigodon de jueces without the consent of the Supreme Court, which they considered as "repulsive to an independent judiciary" and violative of an express prohibitory provision of the 1935 Constitution — while Justice Alex Reyes conceded that otherwise he would go with the majority that "Congress may not, as a general rule, abolish a judicial post without allowing the incumbent to finish his term of office."cralaw virtua1aw library 2. As then Associate, later Chief Justice Cesar Bengzon remarked in his separate opinion —" (T)he [adverse] outcome of this litigation [sanctioning the ouster from office of the ten petitioners who were presiding different Courts of First Instance, some as judges-at-large, others as cadastral judges, upon the enactment on June 19, 1954 of R.A. 1186 abolishing the positions of judges-at-large and cadastral judges] is apt to revive the speculation whether wittingly or unwittingly the Constitution has further weakened the usually weak judicial department because of its ‘innovative’ requirement of a 2/3 majority vote of the Supreme Court to declare a statute unconstitutional, and ‘never in our history has such a number of judges of first instance [totalling 33 positions] been ousted through judicial reorganization.’"

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His rationale that the express constitutional guaranty of security of tenure of judges "during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office" 4 must prevail over the implied constitutional authority to abolish courts and to oust the judges despite their constitutionally-secured tenure bears repeating, thus:jgc:chanrobles.com.ph "A careful analysis will perceive that whereas petitioners invoke an express guaranty or positive definition of their term of office, the respondents rely on implied authority to abolish courts and the positions of the respective judges. Accurately stated, respondents’ defense rests on a second inference deduced from such implied power, because they reason out thusly: Congress has express power to establish courts; therefore it has implicit power to abolish courts and the positions of judges of such abolished courts (first inference); and therefore (second inference) Congress likewise has power to eject the judges holding such positions. "Resultant juridical situation: The implied authority invoked by respondents collides with the express guaranty of tenure protecting the petitioners. Which shall prevail? Obviously the express guaranty must override the implied authority.’Implications can never be permitted to contradict the expressed intent or to defeat its purpose.’. . . x

x

x

"But the collision may be-should be-avoided, and both sections given validity, if one be considered a proviso or exception to the other. In other words, under the Constitution the Congress may abolish existing courts, provided it does not thereby remove the incumbent judges; such abolition to take effect upon termination of their incumbency. The fundamental provisions on the matter are thereby ‘coordinated and harmonized’ as Justice Laurel suggested in his concurring opinion in Zandueta v. De la Costa. To bring about the reconciliations is the great work of jurists. (Cardozo, Paradoxes of Legal Science, p. 6)" 5 3. This reasoning that the express guaranty of tenure protecting incumbent judges during good behavior unless removed from office after hearing and due process or upon reaching the compulsory retirement age of seventy years must override the implied authority of removing by legislation the judges has been further strengthened and placed beyond doubt by the new provisions of the 1973 Constitution that transferred the administrative supervision over all courts and their personnel from the Chief Executive through the then Secretary of Justice to the Supreme Court 6 and vested in the Supreme Court exclusively "the power to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissa l," 7 which power was formerly lodged by the Judiciary Act in the Chief Executive. As former Chief Justice Bengzon stressed in his opinion in Ocampo, the 1934 Constitutional Convention "frowned on removal of judges of first instance through abolition of their offices or reorganization," citing Professor Jose Aruego’s observation that the security of judges’ tenure provision was intended to "help secure the independence of the judiciary" in that "during good behaviour, they may not be legislated out of office by the lawmaking body nor removed by the Chief Executive for any reason and under the guise of any pretense whatsoever; they may stay in office until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. (Aruego, the Framing of the Philippine Constitution, Vol. II, pp. 718-

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719)" He further cited Aruego’s report that a proposed amendment to the effect that the prohibition against transfers of judges to another district without the approval of the Supreme Court 8 "should not be applicable to a reorganization of tribunals of justice or of districts, but the amendment was defeated easily without debate" 9 and logically concluded that" (N)ow, therefore, having vetoed the transfer of judges thru a reorganization, the Convention evidently could not have permitted the removal of judges thru reorganization." chanroblesvirtuallawlibrary Now, if the framers of the 1973 Constitution wished to dispel the strong doubts, to say the least in the light of the 7 to 4 vote in the Ocampo case against removal of incumbent judges through legislative action by abolition of their courts, then they would have so clearly provided for such form of removal in the 1973 Constitution, but on the contrary as already stated they ruled out such removal or ouster of judges by legislative action by vesting exclusively in the Supreme Court the power of discipline and removal of judges of all inferior courts. 4. This being so, the fundamental point emphasized by former Chief Justice Bengzon that abolition of the 33 judicial positions in the Ocampo case was "merely an indirect manner of removing the petitioners-judges" while the "positions [that] were eliminated . . . were in fact substituted or replaced by other positions of judges" applies with greater force in the case at bar which involves an unprecendented total "abolition," thus:" (C)all it reorganization, or legislation or removal or abolition, this law disregards the constitutional assurance that these judges, once appointed, shall hold office during good behaviour . . . unless incapacitated and until retirement]. "The abolition of their offices was merely an indirect manner of removing these petitioners. Remember that on June 19, 1954, there were 107 judges of first instance, district judges, judges-at-large and cadastral judges (Rep. Act 296). After the passage of Republic Act No. 1186 there were 114 positions of judges of first instance. There was no reduction-there was increase-in the number of judges, nor in the number of courts. The positions of Judges-atLarge and Cadastral Judges were eliminated; but they were in fact substituted or replaced by other positions of judges; or if you please, there was a mere change of designation from ‘Cadastral Judge or Judge-at-Large’ to ‘district judge.’ Hence it should be ruled that as their positions had not been ‘abolished’ de facto, but actually retained with another name, these petitioners are entitled to remain in the service. (Brillo v. Enage, G.R. No. L-7115, March 30, 1954.) For it is not permissible to effect the removal of one judge thru the expediency of abolishing his-office even as the office with same power is created with another name. (Brillo v. Enage, Malone v. Williams, 118 Tenn. 391, Gibbe’s Case 4 A.L.R., p. 211) in this view of the picture, we believe, Congress could have, and should have-as suggested by Secretary Tuazon during the hearings in Congress-directed in said Republic Act No. 1186 that ‘the present judges-at-large and cadastral judges shall become district judges presiding such districts as may be fixed by the President with the consent of the Commission on Appointments;’ or by the Secretary of Justice, as originally proposed by Senator Laurel in connection with the same bill. Something similar was done before, and it would not be objectionable as an encroachment on the President’s prerogative of appointment, because such judges had already been appointed to the judiciary before the passage of the act, and the provision may be construed in the light of mere change of official designation plus increase in salary."cralaw virtua1aw library 5. Concededly, the questioned Act effects certain changes and procedural reforms with more

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specific delineation of jurisdiction as mentioned particularly in the majority opinion, but they do not change the basic structure of the existing courts. The present Municipal Courts, Municipal Circuit Courts and City Courts are restructured and redesignated as Municipal Trial Courts and Municipal Circuit Trial Courts and Metropolitan Trial Courts in the challenged Act. The Courts of First Instance, Circuit Criminal Courts, Juvenile and Domestic Relations Courts and Courts of Agrarian Relations are all restructured and redesignated to be known by the common name of Regional Trial Courts with provision for certain branches thereof "to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases .. and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice" 10 and the Court of Appeals is restructured and redesignated as the Intermediate Appellate Court with an increase in the number of Appellate Justices from the present 45 to 50 but with a reduction of the number of divisions from 15 (composed of 3 Justices each) to 10 (composed of 5 members each) such that it is feared that there is created a bottleneck at the appellate level in the important task discharged by such appellate courts as reviewers of facts.chanrobles virtual lawlibrary In my view, the "candid admission" by the Chief Justice in his opinion for the Court "that he entertained doubts as to whether the intermediate court of appeals provided for is a new tribunal" 10a is equally applicable to all the other abovementioned courts provided for in the challenged Act as "new courts." And the best proof of this is the plain and simple transitory provision in Section 44 thereof that upon the President’s declaration of completion of the reorganization (whereby the "old courts" shall "be deemed automatically abolished and the incumbents thereof shall cease to hold office")." (T)he cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment, property and the necessary personnel," together with the "applicable appropriations." This could not have been possible without a specification and enumeration of what specific cases of the "old courts" would be transferred to the particular "new courts," had these "new courts" not been manifestly and substantially the "old courts" with a change of name-or as described by Justice Barredo to have been his first view, now discarded, in his separate opinion: "just a renaming, and not a substantial and actual modification or alteration of the present judicial structure or system" or "a rearrangement or remodeling of the old structure." 11 6. I do not subscribe to the test of good faith or bad faith in the abolition of the courts and consequent ouster of the incumbent judges from office as expounded by the late eminent Justice Jose P. Laurel in his separate concurring opinion in the pre-war case of Zandueta 12 wherein the Court dismissed the petition for quo warranto on the ground of petitioner Zandueta’s estoppel and abandonment of office. 13 Realistically viewed from the basis of the established legal presumptions of validity and constitutionality of statutes (unless set aside by a 2/3 majority of 10 members of the Supreme Court) and of good faith in their enactment, one is hard put to conjure a case where the Court could speculate on the good or bad motives behind the enactment of the Act without appearing to be imprudent and improper and declare that "the legislative power of reorganization (is) sought to cloak an unconstitutional and evil purpose." The good faith in the enactment of the challenged Act must needs be granted. What must be reconciled is the legislative power to abolish courts as implied from the power to establish them with the express constitutional guaranty of tenure of the judges which is essential for a free and independent judiciary. Adherents of the Rule of Law are agreed that indispensable for the maintenance of the Rule of Law is a free and independent judiciary, sworn to protect and enforce it without fear or favor — "free, not only from graft, corruption,

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ineptness and incompetence but even from the tentacles of interference and insiduous influence of the political powers that be," to quote again from Justice Barredo’s separate concurring opinion. 14 Hence, my adherence to the 7-member majority opinion of former Chief Justice Bengzon in the Ocampo case, supra, as restated by the Philippine Association of Law Professors headed by former Chief Justice Roberto Concepcion that "any reorganization should at least allow the incumbents of the existing courts to remain in office [the appropriate counterpart ‘new courts’] unless they are removed for cause."cralaw virtua1aw library 7. The "judges’ broader and stronger guarantees of tenure than ordinary civil servants" as stressed by former Chief Justice Bengzon in his majority opinion in Ocampo is based on the judiciary’s status as a co-equal and coordinate branch of government, whereas the long line of Philippine cases upholding the legislative power to abolish offices refers to officers or employees in the executive branch of government and "the underlying consideration must be borne in mind that Manalang [the aggrieved petitioner] belonged to the Executive Department and because the President approved the law, no question or encroachment by one branch on the other could be apprehended or alleged." 15 This is not a matter of personal privilege for the incumbent judges but as aptly stated by former U.P. Law Dean Irene Cortez in her memorandum as amicus curiae, "for the judiciary whose independence is not only eroded but is in grave danger of being completely destroyed." Dean Cortez aptly stressed that "judicial independence is not a guarantee intended for the Supreme Court alone, it extends to the entire court system and is even more vital to the courts at the lowest levels because there are more of them and they operate closest to the people, "and" (P)articularly under the present form of modified parliamentary government with legislative and executive functions overlapping and in certain areas merging, the judiciary is left to perform the checking function in the performance of which its independence assumes an even more vital importance." chanroblesvirtuallawlibrary The extensive memoranda filed by Dean Cortez and other amici curiae, such as former Senator Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent further destruction of judicial independence," former Senator Lorenzo Sumulong, president of the Philippine Constitution Association who advocates for the Court’s adoption of the Bengzon majority opinion in the Ocampo case so as to abide by "the elementary rule in the interpretation of constitutions that effect should be given to all parts of the Constitution" and that the judges’ security of tenure guaranty should not be "rendered meaningless and inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers’ Association who submit that the total abolition of all courts below the Supreme Court (except the Sandiganbayan and the Court of Tax Appeals) and the removal of the incumbent Justices and Judges "violates the independence of the judiciary, their security of tenure and right to due process guaranteed them by the Constitution" and Atty. Raul M. Gonzales, president of the National Bar Association of the Philippines who invokes the Declaration of Delhi at the ICJ Conference in 1959, that "The principles of unremovability of the Judiciary and their Security of Tenure until death or until a retiring age fixed by statute is reached, is an important safeguard of the Rule of Law" have greatly helped in fortifying my views. 8. I had submitted in my memo of September 4, 1980 to the Presidential Committee on Judicial Reorganization that" (W)hatever reorganization plans the committee may recommend to meet the worldwide problem of congested court dockets, and to improve judicial services in the public interest, it should be borne in mind that the members of the judiciary as the weakest branch of government, yet called upon to safeguard the people’s rights and protect

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them from oppression, official and otherwise, are entitled to security of tenure as guaranteed by the Constitution. Even though the lower courts may be reshuffled or abolished in the process, the mandate and spirit of the Constitution guaranteeing their security of tenure and maintaining the independence of the judiciary should be respected, and they should be retained in the new courts."cralaw virtua1aw library In the same vein, Dean Cortez warned of the dire consequences of giving the questioned provisions of the Act the "absolutist sense which they appear to have at first blush" thus:" (T)o accept legislative power to abolish courts asserted under Batas Pambansa Blg. 129 which sweeps through practically the entire judiciary would be to open the door to future court abolitions in the guise of reorganization. At this stage of our political development, the process of embarking upon a modified parliamentary system may well usher in a situation where despite guarantees of judicial tenure, each ruling party in the legislature or any alliance that can command a majority vote may periodically undertake complete reorganization and remove judges, thus making of the judiciary a veritable straw in the political wind," and" (F)uthermore, what can result in the modified parliamentary system from the close working relationship between executive and legislature is made manifest in Batas Pambansa Blg. 129. If the sweeping revamp provided were to be carried out the President would appoint all of the justices and judges of the courts affected and the whole membership in the judiciary from the highest to the lowest courts would be his appointees. It is relevant to point out that it is precisely a situation like this that the Constitution seeks to avoid when it provides staggered terms for the chairman and members of the constitutional commissions which like the judiciary are guaranteed independence."cralaw virtua1aw library 9. The judges’ security of tenure was rendered nugatory by the Transitory Provisions of the 1973 Constitution which granted the incumbent President the unlimited power to remove and replace all judges and officials 16 (as against the limited one-year period for the exercise of such power granted President Quezon in the 1935 Constitution upon establishment of the Philippine Commonwealth). Upon the declaration of martial law in September, 1972, justices and judges of all courts, except the Supreme Court, had been required to hand in their resignations. There is listed a total of 53 judges who were replaced or whose resignations were accepted by the President during the period from September, 1972 to April, 1976. The power to replace even the judges appointed after the effectivity on January 17, 1973 of the 1973 Constitution is yet invoked on behalf of the President in the pending case of Tapucar v. Famador 17 notwithstanding the generally held view that such post-1973 Constitution appointed judges are not subject to the Replacement Clause of the cited Transitory Provision. (In this case, petitioner judge appointed on January 30, 1976 as judge of the Court of First Instance of Agusan del Norte and Butuan City, Branch I, invoked his constitutional security of tenure and questioned the appointment extended on February 26, 1980 to respondent to replace him, although he had not been removed or otherwise dismissed from his position nor had he resigned thereform. The Court per its March 27, 1980 resolution ordered both to refrain from discharging the functions of the questioned office.) And now comes this total abolition of 1,663 judicial positions (and thousands of personnel positions) unprecedented in its sweep and scope. The urgent need is to strengthen the judiciary with the restoration of the security of tenure of judges, which is essential for a free and independent judiciary as mandated by the Constitution, not to make more enfeebled an already feeble judiciary, possessed neither of the power of the sword nor the purse, as decried by former Chief Justice Bengzon in his Ocampo majority opinion:jgc:chanrobles.com.ph

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"Shall we have judges of the type of Lord Coke? Or judges, who, in his place, would have answered ‘I’ll do what his majesty pleases,’ judges who, afraid of ouster thru a judiciary reshuffle, would rather serve the interest of the party in power or of the political boss, than the interests of justice? "As it is, the Judicial Department is feeble enough. Shall we render it feebler with judges precariously occupying their official seats? Judges performing their duties under the sword of Damocles of future judicial reorganizations?" 10. The Chief Justice, in his opinion for the Court, equally stressed that "what is equally apparent is that the strongest ties bind the executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority party. It is understandable then why in Fortun v. Labang 18 it was stressed that with the provision transferring to the Supreme Court administrative supervision over the Judiciary, there is a greater need ‘to preserve unimpaired the independence of the judiciary, especially so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches,’" 19 with the further observation that "many are the ways by which such independence could be eroded." In the cited case of Judge Fortun (likewise penned by the Chief Justice for the Court), the Court issued a writ of prohibition andcertiorari ordering the dismissal of the criminal complaint filed with respondent fiscal Labang by "disgruntled members of the bar with a record of losing cases" in the judge’s court and imposed the penalty of censure on each and everyone of the private respondents-lawyers for the "unseemly haste" with which they filed the criminal complaint, abetted by "the appearance of sheer vindictiveness or oppressive exercise of state authority." The Court marked the "violation of the cardinal principles of fairness and due process that underlie the Rule of Law. Petitioner-Judge was not heard; he was denied the opportunity to defend himself against the accusation. There was, on the part of private respondents then, a failure to abide by a Resolution of the Integrated Bar stressing that precisely integration could shield ‘the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence,’" and that such subjection of a judge to public "harassment and humiliation . . . can diminish public confidence in the courts." chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 11. This brings us to the allegedly underlying need for B.P. Blg. 129 discussed in the course of committee hearings of Cabinet Bill No. 42 and the deliberation on second reading in the Batasang Pambansa to rid the judiciary of incompetent and corrupt judges and to restore confidence in the integrity of the courts. The purge has been the constant subject of headlines and editorials, with the Ministry of Justice’s Integrity Council reportedly screening and conducting "integrity tests" as to new applicants and the incumbent judges 20 and seeking "confidential information on corrupt and incompetent judges to help the government purge the judiciary." 21 Prime Minister Cesar Virata was quoted as saying that" ‘there will be a purge of the corrupt and the misfits’ when the Judiciary Reorganization Act is signed into law by President Marcos and implemented in coordination with the Supreme Court." 22 The public respondents’ answer sidesteps the issue of such purge contravening the rudiments of a fair hearing and due process and submits that "no term of office is sacrosanct when demanded before the altar of the public good." The metropolitan papers reported the "anxiety gripping the judiciary as the Ministry of Justice has reportedly been asked to collate information ‘on the

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performance of the judges and on the qualifications of those slated to take over the positions of the incompetent, the inefficient or those involved in irregularities.’ As stated in an editorial, ‘Somehow, the uncertainty that now hovers over the judiciary has unduly subjected the judges to mental torture since they do not know when or whether the axe will fall on them. Worse, the sword of Damocles hanging over their heads could provoke them into seeking the help of people claiming to have influence with the powers that be." 23 But Dean Cortez in her memorandum states that "However, nowhere on public record is there hard evidence on this. The only figures given in the course of the committee hearings were to the effect that out of some 1,700 members of the judiciary, between 10 to 15 were of the undesirable category, i.e. misfit, incompetent or corrupt. (Barredo, J., before the Committee on Justice, Human Rights and Good Government, December 4, 1980)," and that" (I)f this be the case, the unprecedented, sweeping and wholesale abolition of judicial offices becomes an arbitrary act, the effect of which is to assert the power to remove all the incumbents guilty or innocent without due process of law." Nor would it be of any avail to beg the question and assert that due process is not available in mass abolitions of courts. Justice Barredo, however, without citing any hard evidence, refers in his separate concurrence to twin objectives of getting rid of "structural inadequacies of the system or of the cumbersomeness and technicality-peppered and dragging procedural rules in force" and of "a good number of those occupying positions in the judiciary (who) make a mockery of justice and take advantage of their office for personal ends." He adds that "it is my personal assessment of the present situation in our judiciary that its reorganization has to be of necessity two-pronged, as l have just indicated, for the most ideal judicial system with the most perfect procedural rules cannot satisfy the people and the interests of justice unless the men who hold positions therein possess the character, competence and sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay, impregnability to all temptations of graft and corruption, including the usual importunings and the fearsome albeit improper pressures of the powers that be," 24 and invokes the adage of "grandes males, grandes remedios" to now uphold the validity of the Act. Cdphil Former Senator Diokno in his memorandum anticipates the argument that "great ills demand drastic cures" thus: "Drastic, yes — but not unfair nor unconstitutional. One does not improve courts by abolishing them, any more than a doctor cures a patient by killing him. The ills the judiciary suffers from were caused by impairing its independence; they will not be cured by totally destroying that independence. To adopt such a course could only breed more perversity in the administration of justice, just as the abuses of martial rule have bred more subversion."cralaw virtua1aw library 12. Finally, as stated by the 1975 Integrated Bar of the Philippines 2nd House of Delegates, "It would, indeed, be most ironical if Judges who are called upon to give due process cannot count it on themselves. Observance of procedural due process in the separation of misfits from the Judiciary is the right way to attain a laudable objective."cralaw virtua1aw library As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal principles of fairness and due process and the opportunity to be heard and defend themselves against the accusations made against them and not to be subjected to harassment and humiliation, and the Court will repudiate the "oppressive exercise of legal authority." More so, are judges entitled to such due process when what is at stake is their constitutionally

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guaranteed security of tenure and non-impairment of the independence of the judiciary and the proper exercise of the constitutional power exclusively vested in the Supreme Court to discipline and remove judges after fair hearing. In sum, I see no reason to change the stand submitted by me to the Presidential Committee on Judicial Reorganization that — Judges of inferior courts should not be summarily removed and branded for life in such reorganization on the basis of confidential adverse reports as to their performance, competence or integrity, save those who may voluntarily resign from office upon being confronted with such reports against them. The trouble with such ex-parte reports, without due process or hearing, has been proven from our past experience where a number of honest and competent judges were summarily removed while others who were generally believed to be basket cases have remained in the service; and The power of discipline and dismissal of judges of all inferior courts, from the Court of Appeals down, has been vested by the 1973 Constitution in the Supreme Court, and if the judiciary is to be strengthened, it should be left to clean its own house upon complaint and with the cooperation of the aggrieved parties and after due process and hearing.chanroblesvirtuallawlibrary The constitutional confrontation and conflict may well be avoided by holding that since the changes and provisions of the challenged Act do not substantially change the nature and functions of the "new courts" therein provided as compared to the "abolished old courts" but provide for procedural changes, fixed delineation of jurisdiction and increases in the number of courts for a more effective and efficient disposition of court cases, the incumbent judges’ guaranteed security of tenure require that they be retained in the corresponding "new courts."cralaw virtua1aw library Endnotes:

1. Article X, Section 1, first sentence of the Constitution reads: "The judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law."cralaw virtua1aw library 2. Cf. Borromeo v. Mariano, 41 Phil. 322 (1921) and People v. Vera, 65 Phil. 56 (1937). 3. Article X, Section 7 of the Constitution. 4. It may be mentioned in passing that petitioners ignored the fact that an action for declaratory relief should be filed in a Court of First Instance and apparently are unaware that there is no such proceeding known in constitutional law to declare an act unconstitutional. So it has been authoritatively ruled even prior to the 1935 Constitution, and much more so after its effectivity and that of the present Constitution. That is the concept of judicial review as known in the Philippines, a principle that goes back to the epochal decision of Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137 (1803). This court, then, as do lower courts, has the duty and the power to declare an act unconstitutional but only as an incident to its

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function of deciding cases. Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil. 56 (1937). 5. Gualberto J. de la Llana is the Presiding Judge of Branch II of the City Court of Olongapo. The other petitioners are all members of the Philippine bar. 6. He was assisted by Assistant Solicitor General Reynato S. Puno. 7. The amici curiae who argued were Senator Lorenzo Sumulong, President, Philippine Constitution Association; Dean Irene Cortes, former Dean, U.P. College of Law; Atty. Bellaflor Angara Castillo, President, U.P. Women Lawyers Circle; Atty. Paz Veto Planas, President, Women Lawyers Association; Atty. Raul Roco, Executive Vice-President, Integrated Bar of the Philippines; Atty. Enrique Syguia, President, Philippine Bar Association; Atty. Rafael G. Suntay, for the Trial Lawyers Association; and Senator Jose W. Diokno submitted memoranda. Atty. Raul Gonzales entered his appearance for petitioner and argued by way of rebuttal. Atty. Ambrosio Padilla likewise submitted a memorandum, which the Court allowed to stay in the records. 8. 65 Phil. 56 (1937). 9. Ibid, 89. 10. L-40004, January 31, 1975, 62 SCRA 275. 11. Ibid., 308. 12. Executive Order No. 611. The writer of this opinion was designated as Chairman, and Minister Ricardo C. Puno as Co-Chairman. Two members of the Court, Justices Ramon C. Aquino and Ameurfina A. Melencio-Herrera, as well as a former member, retired Justice Felix Q. Antonio, were named to such body. Deputy Minister of Justice Jesus Borromeo completed the membership. 13. Executive Order No. 619-A. 14. Report of the Committee on Judicial Reorganization, 5-6. 15. Ibid, 7. 16. Ibid, citing the President’s foreword to The Philippine Development Plan, 2. 17. Ibid. 18. Ibid, 8. The last sentence of this portion of the Report reads: "That is to achieve the democratization and humanization of justice in what has been felicitously referred to by the First Lady as a ‘compassionate society.’" 19. Ibid, 8-9. 20. Ibid, 9-10.

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21. Ibid, 10. 22. Ibid. 23. Act No. 136. Cf. Act No. 2347 and 4007. 24. Commonwealth Act No. 3. 25. Ibid, Sec. 3, Under Commonwealth Act No. 259, the membership of the Court of Appeals was increased to fifteen, with one Presiding Justice and fourteen Associate Justices. Three divisions were created, five members in each division. The Act was approved on April 7, 1938. In 1945 after the liberation of the Philippines, it was abolished by Executive Order No. 37 of President Sergio Osmeña exercising his emergency power under Commonwealth Act No. 671. It was established anew under Republic 52, which took effect on October 4, 1946. 26. Republic Act No. 296. 27. Section 53 of this Act provided: "In addition to the District Judges mentioned in Section forty-nine hereof, there shall also be appointed eighteen Judges-at-large and fifteen Cadastral Judges who shall not be assigned permanently to any judicial district; and who shall render duty in such district or province as may from time to time, be designated by the Department Head." This Section was repealed by Republic Act No. 1186 (1954). 28. Cf. Republic Act No. 520 (1968) and Presidential Decree No. 289 (1973). 29. Presidential Decree No. 1482. 30. Republic Act No. 1125 (1954). 31. Republic Act No. 1267. It was amended by Presidential Decree No. 946 (1976). 32. Republic Act No. 1404. Subsequently, two more branches were added under Presidential Decree No. 1439 (1978). 33. Republic Act Nos. 4834 and 4836. In 1978, there was a Presidential Decree providing for Juvenile and Domestic Relations Courts in thirteen provinces and twenty-seven other cities. 34. Republic Act No. 5179. 35. Explanatory Note, 5-6. 36. Sponsorship Speech of Minister Puno, Volume Four, Third Regular Session, 1980-81, 2013. 37. Ibid. 38. L-28573, June 13, 1968, 23 SCRA 998. 39. Ibid, 1003. Prior to such decision, the following cases had reaffirmed such a principle

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Manalang v. Quitoriano, 94 Phil. 903 (1954); Rodriguez v. Montinola, 94 Phil. 964 (1954); Gacho v. Osmeña Jr., 103 Phil. 837 (1958); Briones v. Osmeña Jr., 105 Phil 588 (1958); Cuneta v. Court of Appeals, 111 Phil. 249 (1961); Facundo v. Hon. Pabalan, 114 Phil. 307 (1962), Alipio v. Rodriguez, 119 Phil. 59 (1963); Llanto v. Dimaporo, 123 Phil. 413 (1966); Ocampo v. Duque, 123 Phil. 842 (1966); Guillergan v. Ganzon, 123 Phil. 1102 (1966); Abanilla v. Ticao, L-22271, July 26, 1966, 17 SCRA 652; Cariño v. ACCFA, L-19808, Sept. 29, 1966, 18 SCRA 183; De la Maza v. Ochave, L-22336, May 23, 1967, 20 SCRA 142, Arao v. Luspo, L-23982, July 21, 1967, 20 SCRA 722. 40. L-28614, January 17, 1974, 55 SCRA 34. 41. Enciso v. Remo, L-23670, September 30, 1969, 29 SCRA 580; Roque v. Ericta, L-30244, September 28, 1973, 53 SCRA 156. Cf. City of Basilan v. Hechanova, L-23841, August 30, 1974, 58 SCRA 711. 42. 66 Phil. 615 (1938). 43. Commonwealth Act No. 145. 44. Ibid, 626. 45. Ibid, 626-627. 46. It likewise abolished the Court of Land Registration (1914). 47. 1932. 48. 66 Phil. 615, 626. 49. Batas Pambansa Blg. 129, Sections 3-12. It may be stated that the writer of this opinion as the Chairman of the Committee on Reorganization, was for the establishment either of (1) a court of general jurisdiction with an appellate as well as a trial division patterned after that of the system of judicature found in the United Kingdom and in many Commonwealth countries or, in the alternative, (2) of a circuit court of appeals. The Committee accepted such proposals and incorporated them in the guidelines. Candor compels the admission that he entertained doubts as to whether the intermediate court of appeals provided for is a new tribunal. It could be considered though as part of an integrated scheme for the judicial reorganization as contemplated by the Batasang Pambansa. 50. Ibid, Sections 13-24. 51. Ibid, Section 27. 52. Ibid, Section 28. 53. Ibid, Section 29. 54. Ibid, Section 30.

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55. Ibid, Section 31. 56. 94 Phil. 732 (1954). 57. Ibid, 734-735. 58. Ibid, 735. 59. According to Batas Pambansa Blg. 129, Section 2: "The reorganization herein provided shall include the Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal Circuit Courts."cralaw virtua1aw library 60. Ibid, Section 44. Its last sentence reads: "The cases pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant to this Act, together with the pertinent functions, records, equipment, property and the necessary personnel."cralaw virtua1aw library 61. Hayden, The Philippines 67 (1945). 62. 67 Phil. 62 (1939). 63. 63 Phil. 139. 64. Ibid, 156. 65. Article VII, Section 1 of the 1973 Constitution. 66. Section 16 of Article VII of the 1973 Constitution reads as follows: "All powers vested in the President of the Philippines under the 1935 Constitution and the laws of the land which are not herein provided for or conferred upon any official shall be deemed and are hereby vested in the President unless the Batasang Pambansa provides otherwise."cralaw virtua1aw library 67. Section 1, Article VII of the 1935 Constitution. 68. Article VII, Section 1 of the Constitution, in its original form. 69. According to Article IX, Section 1 of the 1973 Constitution prior to its being amended last year: "The Executive power shall be exercised by the Prime Minister with the assistance of the Cabinet. The Cabinet, headed by the Prime Minister, shall consist of the heads of ministries as provided by law. The Prime Minister shall be the head of the Government."cralaw virtua1aw library 70. G.R. No. 58184, October 30, 1981. 71. Ibid, 4. That characterization is in accordance with the Anglo-American concept of the distinction between presidential and parliamentary systems. In the work of President Marcos entitled, Marcos: Notes for the Cancun Summit 1981, the Conference appears to have adopted such a distinction. Countries with the presidential systems sent their presidents: C. Bendjedid

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of Algeria; A. Sattar of Bangladesh; J.B. de Oliviera Figuereido of Brazil; F. Mitterand of France; A. Cheng of Guyana; H. Boigny of Ivory Coast; Lopez Portillo of Mexico; A.S. Shagari of Nigeria; Ferdinand E. Marcos of the Philippines; J.K. Nyerere of Tanzania; R. Reagan of the United States; L. Herrera Campins of Venezuela; S. Kraigher of Yugoslavia. Likewise, countries under the parliamentary system sent their Prime Ministers: P.E. Trudeau of Canada; Zhao Ziyang of China; M.H. Thatcher of the United Kingdom; I. Gandhi of India; Z. Zuzuki of Japan; N.O.T. Falldin of Sweden. While called Chancellors, B. Kreisky of Austria and H. Schmidt of Germany hold such a position. Crown Prince Fahd Bin Abdul Aziz of Saudi Arabia does not fall under either category. 72. Article IX, Sections 1 and 3 of the amended Constitution. Section 3 reads in full: "There shall be an Executive Committee to be designated by the President, composed of the Prime Minister as Chairman, and not more than fourteen other members, at least half of whom shall be Members of the Batasang Pambansa. The Executive Committee shall assist the President in the exercise of his powers and functions and in the performance of his duties as he may prescribe."cralaw virtua1aw library 73. L-38383, May 27, 1981, 104 SCRA 607. 74. Ibid, 615. 75. Article X, Section 6, provides: "The Supreme Court shall have administrative supervision over all courts and the personnel thereof."cralaw virtua1aw library 76. Article X, Section 7. 77. According to Section 67 of the Judiciary Act of 1948, as amended: "No District Judge shall be separated or removed from office by the President of the Philippines unless sufficient cause shall exist, in the judgment of the Supreme Court, involving serious misconduct or inefficiency, for the removal of said judge from office after the proper proceedings." Cf. Section 97 as to removal of municipal judges also by the President. Cf. People v. Linsangan, 62 Phil. 646 (1935); De los Santos v. Mallare, 87 Phil. 289 (1950); Martinez v. Morfe, L-34022, March 24, 1972, 44 SCRA 22, and Pamil v. Teleron, L-34854, November 20, 1978, 86 SCRA 413. 78. Cf. Ginsburg, Judicial Repair of Legislation, 28 Cleveland State Law Review, 301-304 (1979). 79. G.R. Nos. 50581-50617, January 30, 1982. 80. Ibid, 12. 81. Section 7, Presidential Decree No. 537 (1974). 82. Tañada v. Cuenco 103 Phil. 1051 (1957) lends itself to the view that in the interpretation of the fundamental law, the literal language is not necessarily controlling, if thereby a constitutional objection could be plausibly raised. 83. The memoranda submitted by the Integrated Bar of the Philippines, the Philippine Bar Association, the Women Lawyers Association of the Philippines, the U.P. Women Lawyers

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Circle, the Philippine Women Lawyers Association, and the Philippine Trial Lawyers Association of the Philippines were for dismissing the petition. The Philippine Lawyers Association was for granting the petition. Amicus curiae Lorenzo Sumulong, President of the Philippine Constitution Association, speaking on his own behalf, was of a similar mind. Amicus curiae Dean Irene Cortes, former Dean of the U.P. College of Law, was for dismissing the petition, while amicus curiae Jose W. Diokno was for granting it. A memorandum allowed to stay in the records by former Senator Ambrosio Padilla was for granting it. The Court acknowledges the aid it received from the memoranda submitted. 84. 63 Phil. 139, 157 (1936). 85. Planas v. Gil, 67 Phil. 62, 73-74 (1939). The quotation from Justice Holmes came from Springer v. Government of the Philippine Islands, 277 US 189, 211 (1928). He and Justice Brandeis dissented, upholding the contention of the Filipino leaders that the President of the Senate and the Speaker of the House of Represented of the then Philippine Legislature could sit in a Board of Control with power to vote government shares in corporations owned or controlled by it. The majority sustained the opposite view, thus giving the then American Governor-General such prerogative. 86. Arnault v. Pecson, 87 Phil. 418, 426 (1950). 87. Chapter IV, Sec. 41 of Batas Pambansa Blg. 129. 88. L-32096, October 24, 1970, 35 SCRA 481. Cf. Agustin v. Edu, L-49112, February 2, 1979, 88 SCRA 195. 89. Ibid, 497. 90. G.R. No. 58184, October 30, 1981, 10. 91. Ibid, 11. 92. Ibid. 93. Batas Pambansa Blg. 129, section 43. 94. Ibid, Section 44. 95. Article VII, Section 16 of the Amended Constitution provides: "All powers vested in the President of the Philippines under the 1935 Constitution and the laws of the land which are not herein provided for or conferred upon any official shall be deemed and are hereby vested in the President unless the Batasang Pambansa provides otherwise." Article VII, Section 10, par. (1) of the Constitution reads: "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed."cralaw virtua1aw library 96. Batas Pambansa Blg. 129, Section 44.

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97. This Court is ready with such a list to be furnished the President. 98. In the language of par. XI of the Proposed Guidelines for Judicial Reorganization: "The services of those not separated shall be deemed uninterrupted. In such cases, efficiency, integrity, length of service and other relevant factors shall be considered."cralaw virtua1aw library 99. Cf. Roschen v. Ward, 279 US 337, 339 (1929). 100. From the standpoint of the writer of this opinion, as earlier noted, the assailed legislation did not go far enough. It is certainly much more, to use the Lasswellian phrase of being a "reverent modification of small particulars." For some it could be characterized as a dose of conservation and a dash or innovation. That is, however, no argument against its validity which, to repeat, is solely a question of power as far as this Court is concerned. 101. Former Senators Salvador H. Laurel and Jose W. Diokno. 102. Fish, William Howard Taft and Charles Evan Hughes, 1975 Supreme Court Review 123. 103. Ibid. Cf. Bickel, Mr. Taft Rehabilitates the Court, 79 Yale Law Journal 1 (1969). 104. Article XIII, Section 1, first sentence of the Constitution reads: "Public office is a public trust."cralaw virtua1aw library 105. 57 O.G. 147 (1955). 106. Ibid. 153. The per curiam minute resolution of the Court reads as follows: "In Ocampo Et. Al. v. The Secretary of Justice Et. Al., G.R. No. L-7910, the petition was denied, without costs, due to insufficient votes to invalidate Section 3 of Republic Act No. 1186. Chief Justice Paras, and Justices Padilla, Reyes (A) and Labrador voted to uphold that particular section; Justices Pablo, Bengzon, Montemayor, Hugo, Bautista, Concepcion and Reyes, J.B.L., believe it is unconstitutional." At 147, Republic Act No. 1186, which took effect on June 19,1954, abolished the positions of Judges-at-Large and Cadastral Judges. There was a vigorous dissent from Justice Bengzon relying on certain American State Supreme Court decisions notably from Indiana and Pennsylvania, but as noted in the opinion of Justice Labrador, they could not be considered as applicable in view of the difference in constitutional provisions. From Justices Montemayor and Bautista also came separate opinions as to its unconstitutionality. 107. 41 Phil. 322 (1921). 108. Ibid, 333. 109. 57 Phil. 600 (1932). 110. Ibid, 605. The reference should now be to the Constitution, rather than an Organic Act of an unincorporated American territory as the Philippines then was. BARREDO, J., concurring:chanrob1es virtual 1aw library

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1. And I am not fond of borrowing ideas from supposed legal acumen of alien judicial figures no matter their recognized reputation. 2. Borromeo v. Mariano, 41 Phil. 330. 3. G.R. No. L-7910, January 18, 1955, 51 O.G. 147. 4. Zandueta v. De la Cuesta, 66 Phil. 615. 5. Brillo v. Mejia, 94 Phil. 732. GUERRERO, J., concurring:chanrob1es virtual 1aw library 1. See Cardozo, The Nature of the Judicial Process, p. 73. 2. Church of the Holy Trinity v. U.S., 143 U.S. 457, cited in Willoughby On the Constitution of the United States, 2nd ed., Vol. 1, p. 61. 3. Explanatory Note, Cabinet Bill No. 42 which became Batas Pambansa Blg. 129, The Judiciary Reorganization Act of 1980. 4. Cardozo, The Nature of the Judicial Process, p. 66. 5. Chief Justice Castro, The Bar and the Congested Dockets, p. 5. 6. See Report of the Presidential Committee on Judicial Reorganization. Also Report of Court Administrator. 7. See L-37399, May 29, 1974, 57 SCRA 123. 8. See L-30355, May 31, 1978, 83 SCRA 437, 450. 9. See L-46542, July 21, 1975, 84 SCRA 198, 203. 10. See L-49995, April 8, 1981. 11. See G.R. No. 54452, July 20, 1981. 12. See L-36161, December 19, 1973. 13. Rule 131, Section 5(m), Revised Rules of Court. 14. 31 C.J.S. 810. 15. Cruz v. Primicias, Jr., L-28573, June 13, 1968, 23 SCRA 998; Bendanillo, Sr. v. Provincial Governor, L-28614, January 17, 1974, 55 SCRA 34; Enciso v. Remo, L-23670, Sept. 30, 1969, 29 SCRA 580; Roque v. Ericta, L-30244, Sept. 28, 1973, 53 SCRA 156. 16. Morfe v. Mutuc, L-20387, Jan. 31, 1968, 22 SCRA 424, 450.

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17. Ibid. 18. Chief Justice Fernando, The Constitution of the Philippines, p. 48. 19. Ibid., p. 46. 20. Journal of the Batasan, Third Regular Session, Feb. 3, 1981, p. 12. 21. Brown v. Russel, 166 Mass. 14, cited in Gonzales, Administrative Law, Law on Public Officers and Election Law, 2nd ed., p. 148. 22. 42 Am. Jur. 881. 23. Ibid. 24. Cherokee, County v. Savage, 32 So. 2nd 803. 25. McCulley v. State. 53 S.W. 134. 26. Answer of Solicitor General, par. 22, p. 29. 27. Laurel, con., Zandueta v. de la Cuesta (1938), 66 Phil. 615. 28. Missouri, K. & T. Co. v. May, 194 U.S. 267, 270; People v. Crane, 214 N.Y. 154, 173, cited in Cardozo, The Nature of the Judicial Process, p. 90. 29. People v. Vera (1937), 65 Phil. 56, See Chief Justice Fernando, The Power of Judicial Review p. 110. DE CASTRO, J., concurring:chanrob1es virtual 1aw library 1. Constitution of the Philippines by Chief Justice Enrique M. Fernando, 1977 Edition, p. 177. 2. Roque v. Ericta, 53 SCRA 156; Abanilla v. Ticao, 17 SCRA 652; Cruz v. Primicias, Jr., 23 SCRA 998; Ocampo v. Duque, 16 SCRA 962; Briones v. Osmeña, 104 Phil. 588; Urgelio v. Osmeña, Jr., 9 SCRA 317; Gacho v. Osmeña, 34 Phil. 208. 3. Delivered on Law Day, September 19, 1981 before the Philippine Bar Association. 4. Cf. G R. No. 58184, Free Telephone Workers Union v. The Honorable Minister of Labor and Employment, promulgated on October 30, 1981. 5. Ocampo v. Secretary of Justice, 50 O.G. 147. TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library 1. With three vacancies.

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2. Section 44, B.P. Blg. 129. 3. Ocampo v. Secretary of Justice, G.R. No. L-1790, Jan. 18, 1955; 51 O.G. 147. 4. Art. X, section 7, 1973 Constitution, as amended (Art. VIII, Sec. 9, 1935 Constitution). 5. Cited in Chief Justice Fernando’s The Constitution, p. 376; emphasis copied. 6. Art. X, Sec. 6, 1973 Constitution. 7. Idem. Art. X, Sec. 7. 8. Art. VIII, Sec. 7, 1935 Constitution. 9. Aruego, Framing of the Phil. Constitution, Vol. I, p. 513. 10. Sec. 23, B.P. Blg. 129. 10-a. At p. 16, fn. 50. 11. At p. 3 thereof. 12. Zandueta v. De la Costa, 66 Phil. 615 (1935). 13. See the Chief Justice opinion, pp. 14-15. 14. At p. 8 thereof. 15. Citing Manalang v. Quitoriano, 50 O.G. 2515. 16. Art. XVII, Sec. 9-10. 17. G.R. No. 53467 filed on March 27, 1980. 18. 104 SCRA 607 (March 27, 1981). 19. Main opinion at p. 21. 20. Phil. Daily Express issue of Aug. 24, 1981. 21. Times Journal issue of Aug. 16, 1981. 22. Evening Post issue of Aug. 11, 1981. 23. Metropolitan papers of Aug. 8, 1980. Times Journal editorial of Aug. 31, 1980. 24. At p. 5.

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EN BANC [G.R. No. L-78946. April 15, 1988.] DR. NENITA PALMA-FERNANDEZ, Petitioner, v. DR. ADRIANO DE LA PAZ, DR. SOSEPATRO AGUILA, and THE SECRETARY OF HEALTH, Respondents. Oscar C. Fernandez for Petitioner. The Solicitor General for Respondents. SYLLABUS 1. ADMINISTRATIVE LAW; DEPARTMENT OF HEALTH; POWER TO APPOINT OR REMOVE OFFICERS AND EMPLOYEES OF HOSPITAL ATTACHED WITH NATIONAL HEALTH FACILITIES, VESTED WITH THE SECRETARY OF HEALTH. — Since the East Avenue Medical Center is one of the National Health Facilities attached to the Department of Health, the power to appoint and remove subordinate officers and employees, like petitioner, is vested in the Secretary of Health, not the Medical Center Chief The latter’s function is confined to recommendation. (Section 79 (D) of the Revised Administrative Code) 2. ID.; ID.; ID.; INCLUDES POWER TO TRANSFER. — Respondent Medical Center Chief’s argument that petitioner was not appointed but was merely transferred in the interest of the public service to the Research Office pursuant to Section 24 (c) of Presidential Decree No. 807, or the Civil Service Decree of the Philippines will not alter the situation. Even a transfer requires an appointment, which is beyond the authority of respondent Medical Center Chief to extend, supra. 3. ID.; LAW ON PUBLIC OFFICERS; TRANSFER WITHOUT CONSENT, TANTAMOUNT TO REMOVAL WITHOUT CAUSE. — The transfer without petitioner’s consent, was tantamount to removal without valid cause, and as such is invalid and without any legal effect (Garcia, Et. Al. v. Lejano, Et Al., 109 Phil. 116). A removal without cause is violative of the Constitutional guarantee that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Article IX, B, Section 2(3), 1987 Constitution). 4. ID.; ID.; HOLD-OVER CAPACITY, TERMINATED BY EFFECTIVITY OF THE 1987 CONSTITUTION. — The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, Et. Al. v. Hon. Benjamin B. Esquerra, Et Al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. 5. REMEDIAL LAW; SPECIAL CIVIL ACTION; QUO WARRANTO; PROPER REMEDY WHEN THERE IS USURPATION OF OFFICE. — Where there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota v. Court of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715).

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6. ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES; EXCEPTIONS. — The doctrine on exhaustion of administrative remedies does not preclude petitioner from seeking judicial relief. This rule is not a hard and fast one but admits of exceptions among which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act is patently illegal" (Carino v. ACCFA, No. L-19808, September 29, 1966, 18 SCRA 183). 7. ID.; ID.; ID.; CASE AT BAR. — The questions involved here are purely legal. The subject Hospital Orders violated petitioner’s constitutional right to security of tenure and were, therefore, "patently illegal." Judicial intervention was called for to enjoin the implementation of the controverted acts. 8. REMEDIAL LAW; SPECIAL CIVIL ACTION; QUO WARRANTO; ONE YEAR PERIOD NOT SUSPENDED BY PENDENCY OF ADMINISTRATIVE REMEDIES. — An action for quo warranto must be filed within one year after the cause of action accrues (Sec. 16, Rule 66, Rules of Court), and the pendency of administrative remedies does not operate to suspend the running of the one-year period (Cornejo v. Secretary of Justice L-32818, June 24, 1974, 57 SCRA 663). DECISION MELENCIO-HERRERA, J.: This is a Petition for Quo Warranto filed by petitioner, Dr. Nenita Palma-Fernandez, claiming entitlement to the position of Assistant Director for Professional Services at the East Avenue Medical Center (formerly Hospital ng Bagong Lipunan) alleged to be unlawfully held by private respondent, Dr. Sosepatro Aguila. The background facts follow:chanrob1es virtual 1aw library On 1 May 1985, petitioner was extended a permanent appointment to the position of Chief of Clinics at the Hospital ng Bagong Lipunan (now East Avenue Medical Center) by then Minister of Health and Chairman of the Board of Governors of the Center, Jesus C. Azurin. Previous to this appointment, Petitioner, a career physician, occupied the positions of Medical Specialist I in 1978, Medical Specialist II from October 1982 to April 1985, until her appointment as Chief of Clinics on 1 May 1985 . Even during her incumbency as Medical Specialist II, petitioner was already designated as Acting Chief of Clinics since September 1983 up to her permanent appointment to said position. As Chief of Clinics, petitioner exercised direct control and supervision over all heads of departments in the Medical Center. In 1986, the new organizational structure of the Center retitled the position of Chief of Clinics to Assistant Director for Professional Services. In partial implementation of this new set-up, respondent Dr. Adriano de la Paz, as Medical Center Chief, issued Hospital Order No. 30, Series of 1986, on 8 August 1986, designating petitioner as Assistant Director of Professional

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Services (Annex 3, Comment, p. 48, Rollo). As such, she continued to exercise direct control and supervision over all heads of departments in the Medical Center. On 30 January 1987, Executive Order No. 119 known as the "Reorganization Act of the Ministry of Health" was promulgated. On 29 May 1987, respondent De la Paz, as Medical Center Chief, designated respondent Dr. Aguila, who was then Medical Specialist I, as Assistant Director for Professional Services "vice Dr. Nenita Palma-Fernandez, who will be transferred to the Research Office." (Hospital Order No. 21, series of 1987, Annex B, Petition). Said order was purportedly issued "in the interest of the hospital service."cralaw virtua1aw library On the same date, Hospital Order No. 22, series of 1987, (Annex C, Petition), was issued by respondent De la Paz, whereby petitioner was relieved "of her present duties and responsibilities as Chief of Clinic and hereby transferred to the Research Office. This order being issued in the interest of the hospital service."cralaw virtua1aw library Upon receipt of Hospital Order No. 22, petitioner filed on 1 June 1987 a letter-protest with respondent Secretary of Health, furnishing copies to respondents De la Paz and Aguila, as well as to the Commissioner of Civil Service and the Chairman of the Government Reorganization Commission.chanroblesvirtualawlibrary Failing to secure any action on her protest within a month’s time, petitioner filed on 8 July 1987 the instant Petition for Quo Warranto with Preliminary Injunction against respondents Dr. de la Paz, Dr. Aguila, and the Secretary of Health. On 14 July 1987, this Court issued a Temporary Restraining Order enjoining the implementation of Hospital Orders Nos. 21 and 22, series of 1987. After considering and deliberating on all Comments, the Reply, and the Rejoinder of the Solicitor General to said Reply, the Court, on 17 March 1988, Resolved to give due course to the Petition, and dispensing with memoranda, declared the case submitted for resolution. The Solicitor General has aptly framed the issues for resolution as follows:chanrob1es virtual 1aw library 1. Whether or not respondent De la Paz has the power or authority to issue the two Hospital Orders in question; 2. Whether or not petitioner has a valid cause of action; and 3. Whether or not the rule on exhaustion of administrative remedies precludes the filing of the instant Petition. The Solicitor General, on behalf of the Secretary of Health, makes common cause with petitioner and answers the first and third issues in the negative, and the second in the affirmative. For their part, Respondents De la Paz and Aguila uphold the opposite views. We rule for Petitioner.

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1. Since the East Avenue Medical Center is one of the National Health Facilities attached to the Department of Health, the power to appoint and remove subordinate officers and employees, like petitioner, is vested in the Secretary of Health, not the Medical Center Chief The latter’s function is confined to recommendation. Thus,. Section 79 (D) of the Revised Administrative Code provides:jgc:chanrobles.com.ph "Section 79 (D). Power to appoint and remove. — The Department Head, upon the recommendation of the Chief of the bureau or office concerned, shall appoint all subordinate officers and employees whose appointment is not expressly vested by law in the President of the Philippines, and may remove or punish them, except as especially provided otherwise, in accordance with the Civil Service Law. . . . "The Department Head also may, from time to time, in the interest of the service, change the distribution among the several bureaus and offices of his Department of the employees or subordinates authorized by law."cralaw virtua1aw library Executive Order No. 119, or the Reorganization Act of the Ministry of Health, likewise states:jgc:chanrobles.com.ph "SEC. 26. New Structure and Pattern. . . . "The new position structure and staffing pattern of the Ministry shall be prescribed by the Minister within one hundred twenty (120) days from the approval of this executive order subject to approval by the Office of Compensation and Classification and the authorized positions created thereunder shall be filled thereafter with regular appointments by him or the President, as the case may be as herein provided. . . ."cralaw virtua1aw library Respondent Medical Center Chief’s argument that petitioner was not appointed but was merely transferred in the interest of the public service to the Research Office pursuant to Section 24 (c) of Presidential Decree No. 807, or the Civil Service Decree of the Philippines 1 will not alter the situation. Even a transfer requires an appointment, which is beyond the authority of respondent Medical Center Chief to extend, supra. Besides, the transfer was without petitioner’s consent, was tantamount to removal without valid cause, and as such is invalid and without any legal effect (Garcia, Et. Al. v. Lejano, Et Al., 109 Phil. 116). A removal without cause is violative of the Constitutional guarantee that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Article IX, B, Section 2(3), 1987 Constitution). Petitioner’s "designation" as Assistant Director for Professional Services on 8 August 1986 in accordance with the organizational structure of the Department of Health under Hospital Order No. 30, Series of 1986, issued by respondent Medical Center Chief did not make her occupancy of that position temporary in character. It bears stressing that the positions of Chief of Clinics and Assistant Director for Professional Services are basically one and the same except for the change in nomenclature. Petitioner’s permanent appointment on 1 May 1985 to the position of Chief of Clinics, therefore, remained effective.chanrobles lawlibrary : rednad Neither can respondent Medical Center Chief rely on Section 2, Article III of the Freedom Constitution and its Implementing Rules and Regulations embodied in Executive Order No. 17,

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Series of 1986. The relevant provision was effective only "within a period of one year from February 25, 1986." 2 The Hospital Orders in question were issued only on 29 May, 1987. Executive Order No. 119, or the "Reorganization Act of the Ministry of Health" promulgated on 30 January 1987, neither justifies petitioner’s removal. The pertinent provision thereof reads:jgc:chanrobles.com.ph "Sec. 26. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution."cralaw virtua1aw library The argument that, on the basis of this provision, petitioner’s term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold-over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, Et. Al. v. Hon. Benjamin B. Esquerra, Et Al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. And while it may be that the designation of respondent Aguila as Assistant Director for Professional Services and the relief of petitioner from the said position were not disapproved by respondent Secretary of Health, it by no means implies that the questioned acts of respondent Medical Center Chief were approved by the former official. 2. It follows from the foregoing disquisition that petitioner has a valid cause of action. Where there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota v. Court of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715). 3. The doctrine on exhaustion of administrative remedies does not preclude petitioner from seeking judicial relief. This rule is not a hard and fast one but admits of exceptions among which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act is patently illegal" (Carino v. ACCFA, No. L-19808, September 29, 1966, 18 SCRA 183). The questions involved here are purely legal. The subject Hospital Orders violated petitioner’s constitutional right to security of tenure and were, therefore, "patently illegal." Judicial intervention was called for to enjoin the implementation of the controverted acts. There was substantial compliance by petitioner with the requirement of exhaustion of administrative remedies since she had filed a letter-protest with the respondent Secretary of Health, with copies furnished the Commissioner of Civil Service, and the Chairman of the Government Reorganization Commission, but the same remained unacted upon and proved an inadequate remedy. Besides, an action for quo warranto must be filed within one year after the cause of action accrues (Sec. 16, Rule 66, Rules of Court), and the pendency of administrative remedies does not operate to suspend the running of the one-year period (Cornejo v. Secretary of Justice L-32818, June 24, 1974, 57 SCRA 663). WHEREFORE, the Writ of Quo Warranto is granted and petitioner, Dr. Nenita Palma-Fernandez,

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is hereby held entitled to the position of Assistant Director of Professional Services of the East Avenue Medical Center up to the expiration of her term. The Temporary Restraining Order heretofore issued enjoining the implementation of Hospital Orders Nos. 21 and 22, both dated 29 May 1987, is hereby made permanent.chanrobles.com : virtual law library SO ORDERED. Teehankee, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Aquino, JJ., concur. Endnotes:

1. "SEC. 24. Personnel Actions. — . . . (c) Transfer. — A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment. It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission. x

x

x

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

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EN BANC [G.R. No. L-13932. December 24, 1959.] JOSE V. DE LOS SANTOS, ET AL., Petitioners, v. HON. NICASIO YATCO, ET AL., Respondents. Anacleto P. Bernardo, for Petitioners. Talileo P. Brion for Respondents. SYLLABUS 1. JUDGMENT; EXECUTION OF; JURISDICTION OF COURT TO QUASH WRIT OF EXECUTION. — A judge has jurisdiction to quash a writ of execution issued by him, especially where it was improvidently issued. In the case at bar, althoug the court has already issued the order of execution, there being opposition on the part of the defendant, who alleged and proved a subsequent verbal agreement amending the compromise agreement, execution could not validly be decreed without a hearing. DECISION BENGZON, J.: Petition for certiorari to revoke the order of the respondent judge cancelling his previous order of execution. For the reasons stated hereinafter, it should be denied. It appears that in Civil Case No. Q-2664 of Quezon City Court of First Instance, the parties submitted on December 9, 1957, a compromise agreement whereby, referring to the sale by installment of a parcel of land made by plaintiffs Pacita V. de los Santos and Jose V. de los Santos to defendant Francisco Mendoñez, they asked the court to render a judgment subject to the following conditions:jgc:chanrobles.com.ph "a. On or before December 26, 1957, defendant shall pay to plaintiffs the amount of P1,000.00; b. Defendant shall pay P300.00 monthly installment within the first five days of every month beginning January, 1958, until the balance shall have been paid in full; c. The balance shall bear interest at 10% per annum; d. That failure of defendant to pay P1,000.00 on or before December 26, 1957 and/or any two (2) successive monthly installments shall be cause for plaintiffs to demand of defendant to immediately vacate the premises with forfeiture in plaintiffs favor of all previous payments

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made; that if defendant will refuse to voluntarily vacate, plaintiffs can ask for execution of judgment against the defendant; e. That plaintiffs shall execute the necessary ABSOLUTE DEED OF SALE of the lot, Lot No. 4, Block No. 13 C of T.C.T. No. 25094, Quezon City Registry, in favor of defendant upon payment in full of the balance."cralaw virtua1aw library Wherefore, the court issued on December 10, 1957, a decision approving the agreement, and saying "judgment is hereby rendered in accordance with the terms and conditions set forth therein, for the parties to comply therewith . . . ."cralaw virtua1aw library On March 10, 1958, plaintiffs in the same case filed a motion for execution, because defendant had allegedly neglected to pay monthly installments since January 1958. Plaintiffs set the motion for hearing on March 15, 1958. However, on March 14, 1958, defendants moved (with the conformity of plaintiffs’ counsel) for postponement to March 22, 1958 "to give the parties sufficient time to come to a more just, fair and equitable agreement." (Annex "E") And the judge postponed, as requested. It is not clear what happened at the hearing on March 22, 1958. According to plaintiffs, Mendoñez admitted he violated the agreement, asked for, and was granted, two days to settle with plaintiffs, but he failed to do so. According to defendant there was a misunderstanding at that hearing. The fact is, the court issued on March 25, 1958, an order of execution. However, defendant Mendoñez filed on April 17, 1958, an urgent motion to quash the writ of execution, asserting under oath that "immediately after the execution of the compromise agreement . . . plaintiff Pacita V. de los Santos and defendant Francisco Mendoñez entered into a verbal agreement whereby the former assured and led defendant to believe that provided he could pay in full and at one time the balance of his indebtedness to her through a GSIS (Government Service Insurance System) loan which she is willing to facilitate for defendant, she would execute the necessary deed of absolute sale in favor of the defendant for Lot No. 4, Block No. 13-C, Pcs-3312-AMD of T.C.T. No. 25094 of Quezon City and would consider the terms and conditions favorable to her in their compromise agreement uneforceable against defendant. . . . ."cralaw virtua1aw library Defendant further alleged, also under oath, among other things, that he applied for and secured the necessary loan from the GSIS; that plaintiffs had been so advised on March 28, 1958; but plaintiff Pacita V. de los Santos "arbitrarily and illegally demands and continuous demanding of defendant that before she complies with the content of said (verbal) agreement, defendant should pay her P1,000.00 by way of attorney’s fees plus the balance of defendant’s indebtedness computed by her in the amount of P14,363.00, excluding interest yet, all to be taken from defendant’s GSIS loan as approved, and that the P1,000.00 already paid by defendant to her as stated in paragraph 4, supra, is considered by her forfeited in her favor. . . . ."cralaw virtua1aw library This urgent motion was taken up on April 19, 1958. After listening to the parties, the judge in open court ordered; "In view of the statement of counsel for plaintiffs that they are still open to an amicable settlement, action on the motion to quash writ of execution of the defendant is held in abeyance for two (2) weeks during which period they can settle the case amicably and report to the Court whatever agreement they may have reached."cralaw virtua1aw library

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On April 28, 1958, defendant manifested in writing that he conferred with plaintiff Pacita V. de los Santos on April 22, 1958, that he made known to her "that he is ready to pay and is offering her the sum of P13,563, his balance indebtedness to her, in accordance with their verbal agreement on December 9, 1957 . . . . Plaintiff Pacita V. de los Santos brushed aside defendant’s offer of payment, and instead, stated that she will abide by their said agreement only if she will be paid P14,500.00. She added that she is demanding now, P14,500.00 after she has forfeited the P1,000.00 already paid by defendant to her, and that she can not allow the P1,000.00 be deducted from the remaining balance of P14,563.00."cralaw virtua1aw library The judge called the parties to a pre-trial or conference on June 2, 1958. Noting defendant’s insistance on non-violation of the compromise agreement, he set the case for hearing on June 3, 1958. On said date according to the Judge, Atty. Bernardo (for plaintiffs) refused to attend the hearing, and defendant proved the material allegations of his urgent motion as hereinabove set forth. Wherefore, convinced that there was no justification for the issuance of the writ of execution, the Hon. Nicasio Yatco, Judge, quashed it by his order of June 4, 1958. Hence this petition for certiorari to revoke that particular order, which petition must necessarily be based on lack of jurisdiction or abuse of discretion. 1 There is no question in this country that a judge has jurisdiction to quash a writ of execution issued by him, particularly where it was improvidently issued. (Dimayuga v. Raymundo, 76 Phil., 143, 42 Off. Gaz., 2121). See also Garcia v. Muñoz, 103 Phil., 628. Was there abuse of discretion? We think not. In the first place, there being opposition on the part of the defendant, who alleged and proved a subsequent verbal agreement amending the compromise, execution could not validly be decreed without a hearing. As we said in Co. v. Lucero, 100 Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a breach of the compromise agreement is alleged, "there arises a cause of action which must be passed upon by the court requiring a hearing to determine whether such breach had really taken place." 2 In the second place, the allegations proved by Mendoñez about their verbal agreement, his having secured a loan from the GSIS and his consequent ability to discharge his obligation seemingly justified the court’s refusal to eject defendant from the premises (on execution) with the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid by defendant as previous instalments of the purchase price, 3 not to mention the loss of defendant’s use of the house and theatre erected on that parcel of land. Upon the other hand, the respondent judge’s action caused no irreparable or undue harm to plaintiffs, because the latter still have the judgment that may be enforced upon any further default of defendant Mendoñez. Note particularly that their unpaid credit continuous to earn 10% interest. Wherefore, as the court had jurisdiction and has committed no grave abuse of discretion, the writ ofcertiorari may not be issued. Petition denied, with costs against petitioners.

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Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, Barrera and Gutierrez David,JJ., concur. Endnotes:

1 The corollary request for mandamus to compel execution depends upon the petition for certiorari. 2 A further issue might possibly be tendered concerning the effect of plaintiffs’ repeated readiness "to come to a more just, fair and equitable agreement" (Annex E) or an "amicable settlement" (Annex X). Did this amount to a waiver of the right to demand execution as a condonation of the default? Cf. Dimayuga v. Raymundo, supra. 3 "With forfeiture in plaintiffs’ favor of all previous payments made" (see compromise agreement)

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Republic of the Philippines SUPREME COURT Manila EN BANC

February 25, 1938

G.R. No. 45937 JUAN CAILLES, petitioner, vs. ARSENIO BONIFACIO, respondent. Emiliano Tria Tirona, Jose V. Rosales, and Galo Acuña for petitioner. Pedro Magsalin, Ruperto Kapunan, Felipe Buencamino, Jr., Francisco Alfonso, Jose Guevara, Guillermo B. Guevara, and Barrera and Reyes for respondent. Office of the Solicitor-General as amicus curiae. LAUREL, J.: This is an original action in the nature of quo warranto instituted by the petitioner under the provisions of section 408 of the Election Law for the purpose of ousting the respondent from the office of provincial governor of Laguna. It is contended that at the time he filed his certificate of candidacy and was elected to office, the respondent was a captain in the reverse force of the Philippine Army and, for this reason, is ineligible to office. Two grounds are advanced in support of this contention: (a) the alleged disqualification of the respondent under section 431 of the Election Law and prohibition against him as member of the armed forces under section 2 of Article XI of the Constitution and section 449 of the Election Law. With reference to the ground, the petition alleges that:

. . . al tiempo de presentado y registrado su candidature al cargo de Gobernador Provicial y al tiempo de su eleccion, el recurrido era Capitan del Ejercito Filipino, si bien pertencia al Cuerpo de Reserva, pero cuyo status es identico al servicio regular activo del Ejercito Filipino, sin haber dimitido de dicho cargo hasta la fecha, y por articulo 431 de la Ley Electoral;

4.º Que por tal motivo no reuniendo el recurrido las debidas calificaciones para ser elector, uno de los requisitos para quo pueda ser legalmente candidato elegible para el cargo de Gobernador Provincial, de acuerdo con el articulo 2071 del Codigo Administrativo no era elegible, por tanto, para el cargo Gobernador Provincial de Laguna y

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consiguientemente su eleccion y los votos recibibos para el citado cargo son nulos, y no tiene derecho a ocupar ni continuar ocupando el referido cargo. Section 2, Article XI of the Constitution prohibits members of the armed forces form engaging in any partisan political activity, or otherwise taking part in any election except to vote, but it does not ex vi termini grant or confer upon them the right of suffrage. It prohibits partisan political activity or taking part in any election except to vote, but permits the exercise of the right to vote only if such right is granted by law. As section 431 of the Election Law, as amended by Commonwealth Act No. 233, disqualified from voting only members in the active service of the Philippines Army and no claim is made that this discrimination is violation of the Constitution, it follows that the respondent, being in the reserve force, is not disqualified from voting. Stated otherwise, the respondent being a qualified elector and the possession by him of the other qualifications prescribed for an elective provincial office not being challenged, he is not ineligible to the office of provincial governor to which he has been elected. The first ground on the petition is, therefore, without merit. With reference to the second ground the petition that the respondent

. . . Como tal Capital Ejercito Filipino es y era un funcionario del mismo quien el articulo 449 de la Ley Electoral prohibe influir en manera alguna y tomar parte en cualquiera eleccion, excepto el ejercicio del derecho de votar, por tanto, no podia legalmente ser candidato para el cargo de Gobernador Provincial, ni ser elegible para el mismo cargo;

. . . como Capitan del Ejercito Filipino era miembro de las "fuerzas armadas" de Filipinas quienes, segun el articulo 2, Titulo XI de la Constitucion de Filipinas, no prodran tomar parte directa ni indirecta, en campañas politicas de partido, ni en ninguna eleccion excepto para votar, y por tanto, no podiar ser legalmente candidato al cargo de Gobernador Provincial, ni ser eligle para el mismo.

Section 2, Article XI, of the Constitution is as follows:

SEC 2. Officers and employees in the Civil Service, including members of the armed forced, shall not engage directly or indirectly in partisan political activities or take part in any election except to vote.

The prohibition as originally proposed in the Convention was section 2, Article XII, of the formal draft of the Constitution and was of the following tenor:

SEC. 2. Public officers and employees in the Civil Service shall not engage directly or indirectly in political activities or take part in any election except to vote; they are servants of the people and not the agent of any political groups.

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It was evident that the intention was to continue by in corporation in the Constitution the then existing prohibition against officers and employees of the Civil Service from, engaging in political or electoral activities except to vote, for the reason that public officers and employees in the Civil Service "are servant of the State and not the agents of any political group." "Members of the armed forced" were not included in the original draft but finally it was though advisable by the Constitutional Convention to extend the prohibition to them. In including only those in the active service were contemplated. Upon the other hand, a contrary interpretation would lead to the disqualification of all ablebodied male citizens between the ages of 20 and 50 years — not specially exempted by the National Defense Act — from holding election public offices or otherwise taking part in any election except to vote and this result, for obvious reasons, should be avoided.

The respondent calls attention to paragraph (f) of section 405 of the Election Law, as amended by Commonwealth Act No. 233, which provides that the presentation of his certificate of candidacy operated automatically to vacate his position as captain of the reserve corps. From the view we take on this case, it is unnecessary to pass this point. The petition prayed for is hereby dismissed, without pronouncement as to costs. So ordered. Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

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THIRD DIVISION G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, Petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY,Respondents. Vicente T. Ocampo & Associates for petitioners. CORTES, J: Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike.chanrobles virtual law library The antecedents are as follows: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal.chanrobles virtual law library It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].chanrobles virtual law library The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an

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injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition forcertiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].chanrobles virtual law library Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152].chanrobles virtual law library The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision.chanrobles virtual law library The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute.chanrobles virtual law library On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.chanrobles virtual law library In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.chanrobles virtual law library Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows: 1. Do the employees of the SSS have the right to strike?

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2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work? These shall be discussed and resolved seriatim I The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].chanrobles virtual law library By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike.chanrobles virtual law library Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike.chanrobles virtual law library Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained: MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this

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resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569]. It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions: .Sec. 11. Prohibition Against Strikes in the Government. - The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations. No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.chanrobles virtual law library On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No.

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180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].chanrobles virtual law library But are employees of the SSS covered by the prohibition against strikes? The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal.chanrobles virtual law library The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment[G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike: The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied]. Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit: It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179]. Page 198 of 492

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus: .SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government authorities. The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit: .SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and governmentowned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." II The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it.chanrobles virtual law library It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.chanrobles virtual law library This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's

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complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.chanrobles virtual law library Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86]. III In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.chanrobles virtual law library The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.chanrobles virtual law library WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED.chanrobles virtual law library SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

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EN BANC G.R. No. 124678 July 31, 1997 DELIA BANGALISAN, LUCILIN CABALFIN, EMILIA DE GUZMAN, CORAZON GOMEZ, CORAZON GREGORIO, LOURDES LAREDO, RODOLFO MARIANO, WILFREDO MERCADO, LIGAYA MONTANCES and CORAZON PAGPAGUITAN, Petitioners, v. HON. COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, Respondents. REGALADO, J.: This is an appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. SP No. 38316, which affirmed several resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service, as well as its resolution of April 12, 1996 denying petitioners' motion for reconsideration. 1 Petitioners, except Rodolfo Mariano, were among the 800 public school teachers who staged "mass actions" on September 17 to 19, 1990 to dramatize their grievances concerning, in the main, the alleged failure of the public authorities to implement in a just and correct manner certain laws and measures intended for their material benefit. On September 17, 1990, the Secretary of the Department of Education, Culture and Sports (DECS) issued a Return-to-Work Order. Petitioners failed to comply with said order, hence they were charged by the Secretary with "grave misconduct; gross neglect of duty; gross violation of Civil Service law, rules and regulations and reasonable office regulations; refusal to perform official duty; gross insubordination; conduct prejudicial to the best interest of the service; and absence without official leave in violation of PD 807, otherwise known as the Civil Service Decree of the Philippines." They were simultaneously placed under preventive suspension. Despite due notice, petitioners failed to submit their answer to the complaint. On October 30, 1990, the DECS Secretary rendered a decision finding petitioners guilty as charged and dismissing them from the service effective immediately. Acting on the motions for reconsideration filed by petitioners Bangalisan, Gregorio, Cabalfin, Mercado, Montances and Pagpaguitan, the Secretary subsequently modified the penalty of dismissal to suspension for nine months without pay. Petitioner Gomez likewise moved for reconsideration with the DECS and then appealed to the Merit Systems Protection Board (MSPB). The other petitioners also filed individual appeals to the MSPB, but all of their appeals were dismissed for lack of merit. Not satisfied with the aforestated adjudication of their respective cases, petitioners appealed to the Civil Service Commission (CSC). The appeals of petitioners Cabalfin, Montances and

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Pagpaguitan were dismissed for having been filed out of time. On motion for reconsideration, however, the CSC decided to rule on the merits of their appeal in the interest of justice. Thereafter, the CSC issued Resolution No. 94-1765 finding Cabalfin guilty of conduct prejudicial to the best interest of the service and imposing on him a penalty of six months suspension without pay. The CSC also issued Resolutions Nos. 94-2806 and 94-2384 affirming the penalty of nine months suspension without pay theretofore imposed on petitioners Montances and Pagpaguitan. With respect to the appeals of the other petitioners, the CSC also found them guilty of conduct prejudicial to the best interest of the service. It, however, modified the penalty of nine months suspension previously meted to them to six months suspension with automatic reinstatement in the service but without payment of back wages. All the petitioners moved for reconsideration of the CSC resolutions but these were all denied, 2except that of petitioner Rodolfo Mariano who was found guilty only of a violation of reasonable office rules and regulations because of his failure to inform the school of his intended absence and to file an application for leave therefor. This petitioner was accordingly given only a reprimand. 3 Petitioners then filed a petition for certiorari with this Court but, on August 29, 1995, their petition was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95. 4 On October 20, 1995, the Court of Appeals dismissed the petition for lack of merit. 5 Petitioners' motion for reconsideration was also denied by respondent court, 6 hence the instant petition alleging that the Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the CSC (1) that penalized petitioners whose only offense was to exercise their constitutional right to peaceably assemble and petition the government for redress of grievances; (2) that penalized petitioner Mariano even after respondent commission found out that the specific basis of the charges that former Secretary Cariño filed against him was a falsehood; and (3) that denied petitioners their right to back wages covering the period when they were illegally not allowed to teach. 7 It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes. While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike. 8 Petitioners contend, however, that they were not on strike but were merely exercising their constitutional right peaceably to assemble and petition the government for redress of grievances. We find such pretension devoid of merit. The issue of whether or not the mass action launched by the public school teachers during the period from September up to the first half of October, 1990 was a strike has been decided by this Court in a resolution, dated December 18, 1990, in the herein cited case of Manila Public

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School Teachers Association, et al. vs. Laguio, Jr., supra. It was there held "that from the pleaded and admitted facts, these 'mass actions' were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons." It is an undisputed fact that there was a work stoppage and that petitioners' purpose was to realize their demands by withholding their services. The fact that the conventional term "strike" was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling. 9 The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose. 10 Further, herein petitioners, except Mariano, are being penalized not because they exercised their right of peaceable assembly and petition for redress of grievances but because of their successive unauthorized and unilateral absences which produced adverse effects upon their students for whose education they are responsible. The actuations of petitioners definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations. As aptly stated by the Solicitor General, "It is not the exercise by the petitioners of their constitutional right to peaceably assemble that was punished, but the manner in which they exercised such right which resulted in the temporary stoppage or disruption of public service and classes in various public schools in Metro Manila. For, indeed, there are efficient but nondisruptive avenues, other than the mass actions in question, whereby petitioners could petition the government for redress of grievances." 11 It bears stressing that suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to strike is denied government employees. 12 It may be conceded that the petitioners had valid grievances and noble intentions in staging the "mass actions," but that will not justify their absences to the prejudice of innocent school children. Their righteous indignation does not legalize an illegal work stoppage. As expounded by this Court in its aforementioned resolution of December 18, 1990, in the Manila Public School Teachers Association case, ante: It is, of course, entirely possible that petitioners and their member-teachers had and have some legitimate grievances. This much may be conceded. After all, and for one thing, even the employees of the Court have found reason to complain about the manner in which the provisions of the salary standardization law on pay adjustments and position classification have been, or are being, implemented. Nonetheless, what needs to be borne in mind, trite though it may be, is that one wrong cannot be righted by another, and that redress, for even the most justifiable complaints, should not be sought through proscribed or illegal means. The belief in the righteousness of their cause, no matter how deeply and fervently held, gives the teachers concerned no license to abandon their duties, engage in unlawful activity, defy constituted authority and set a bad example to their students.

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Petitioners also assail the constitutionality of Memorandum Circular No. 6 issued by the Civil Service Commission. The resolution of the said issue is not really necessary in the case at bar. The argument of petitioners that the said circular was the basis of` their liability is off tangent. As a general rule, even in the absence of express statutory prohibition like Memorandum Circular No. 6, public employees are denied the right to strike or engage in a work stoppage against a public employer. 13 The right of the sovereign to prohibit strikes or work stoppages by public employees was clearly recognized at common law. Indeed, it is frequently declared that modern rules which prohibit such strikes, either by statute or by judicial decision, simply incorporate or reassert the common law rule. 14 To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor. 15 In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector. 16 On the issue of back wages, petitioners' claim is premised on the allegation that their preventive suspension, as well as the immediate execution of the decision dismissing or suspending them, are illegal. These submissions are incorrect. Section 51 of Executive Order No. 292 provides that "(t)he proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service." Under the aforesaid provision, it is the nature of the charge against an officer or employee which determines whether he may be placed under preventive suspension. In the instant case, herein petitioners were charged by the Secretary of the DECS with grave misconduct, gross neglect of duty, gross violation of Civil Service law, rules and regulations, and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service and absence without official leave (AWOL), for joining the teachers' mass actions held at Liwasang Bonifacio on September 17 to 21, 1990. Hence, on the basis of the charges against them, it was within the competence of the Secretary to place herein petitioners under preventive suspension. As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Older No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned."

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Petitioners' claim of denial of due process must also fail. The records of this case clearly show that they were given opportunity to refute the charges against them but they failed to avail themselves of the same. The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to seek reconsideration of the action or ruling complained of. 17 For as long as the parties were given the opportunity to be heard before judgment was rendered, the demands of due process were sufficiently met. 18 Having ruled that the preventive suspension of petitioners and the immediate execution of the DECS decision are in accordance with law, the next query is whether or not petitioners may be entitled to back wages. The issue regarding payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in our jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused the suspension and when the suspension is unjustified.19 With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service. However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school or his intended absence and neither did he file an application for leave covering such absences.20 Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. 21 However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension.

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The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for cause as provided by law and the law provides that an employee may be suspended pending an investigation or by way of penalty. 22 Moreover, the general proposition is that a public official is not entitled to any compensation if he has not rendered any service. As he works, he shall earn. Since petitioners did not work during the period for which they are now claiming salaries, there can be no legal or equitable basis to order the payment of such salaries. 23 It is also noteworthy that in its resolutions, the Civil Service Commission expressly denied petitioners' right to back wages. In the case of Yacia vs. City of Baguio, 24 the decision of the Commissioner of Civil Service ordering the dismissal of a government employee on the ground of dishonesty was immediately executed pending appeal, but, on appeal, the Civil Service Board of Appeals modified that penalty to a fine equivalent to six months pay. We ruled that the claim of an employee for back wages, for the period during which he was not allowed to work because of the execution of the decision of the Commissioner, should be denied. The appeal board's modified decision did not exonerate the employee nor did it affect the validity of his dismissal or separation from work pending appeal, as ordered by the Civil Service Commissioner. Such separation from work pending his appeal remained valid and effective until it was set aside and modified with the imposition of the lesser penalty by the appeals board. If the Civil Service Appeals Board had intended to grant him back salaries and to reduce his penalty to six months fine deductible from such unearned back salaries, the board could and should have so expressly stated in its decision. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED, but with the MODIFICATION that petitioner Rodolfo Mariano shall be given back wages without deduction or qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence, should not exceed five years. SO ORDERED. Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur. Narvasa, C.J. and Torres, Jr., J., are on leave. Endnotes: 1 Penned by Justice Antonio M. Martinez, with Justices Delilah Vidallon-Magtolis and Romeo Callejo, Sr. concurring. 2 Rollo, CA-G.R. SP No. 38316, 50-85. 3 Ibid., id., 70-71.

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4 Ibid., id., 131. 5 Rollo, 79-89. 6 Ibid., 91. 7 Ibid., 20-21. 8 See Manila Public School Teachers Association, et al. vs. Laguio, Jr., G.R. Nos. 95445 and 95590, August 6, 1991, 200 SCRA 323; Social Security System Employees Association, et al. vs. Court of Appeals, et al., G.R. No. 85279, July 28, 1989, 175 SCRA 686; Alliance of Government Workers, et al. vs. Minister of Labor and Employment, G.R. No 60403, August 3, 1983, 124 SCRA 1. 9 Board of Education v. New Jersey Education Association (1968) 53 NJ 29, 247 A2d 867. 10 48A Am. Jur. 2d, Public Employees, Sec. 2026, 407. 11 Rollo, 141-142. 12 Social Security System Employees Association, et al. vs. Court of Appeals, et al., supra. 13 Public Employees - Right To Strike, 37 ALR 3d 1156. 14 Ibid., 1150. 15 The Pinellas County Classroom Teachers Association, Inc. vs. The Board of Public Instruction of Pinellas County, Fla., 214 So. 2d 34. 16 Social Security System Employees Association, et al. vs. Court of Appeals, et al. supra. 17 Sunset View Condominium Corporation vs. National Labor Relations Commission, et al., G.R. No. 87799, December 15, 1993, 228 SCRA 466; Bautista vs. Secretary of Labor, G.R. No. 81374, April 30, 1991, 196 SCRA 470. 18 Lindo vs. COMELEC, G.R. No. 95016, February 11, 1991, 194 SCRA 251; see Esber, et al. vs. Sto. Tomas, et al., G.R. No. 107324, August 26, 1993, 225 SCRA 664. 19 Miranda vs. Commission on Audit, G.R. No. 84613, August 16, 1991, 200 SCRA 657; Abellera vs. City of Baguio, et al., G.R. No. L-23957, Match 18, 1967, 125 SCRA 1033; Tanala vs. Legaspi, et al., G.R. No. L-22537, March 31, 1965, 13 SCRA 566. 20 Rollo, 100-101. 21 See Tanala vs. Legaspi, et al., supra; Tan vs. Gimenez, et al., 107 Phil. 17 (1960). 22 Austria vs. Auditor General, G.R. No. L-21918, January 23, 1967, 19 SCRA 79.

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23 See Sales vs. Mathay, Sr., et al., G.R. No. L-39557, May 3, 1984, 129 SCRA 180; Reyes vs. Hernandez, 71 Phil. 397 (1941). 24 G.R. No. L-27562, May 29, 1970, 33 SCRA 419.

EN BANC [G.R. No. 131529. April 30, 1999.] IRINEO V. INTIA, JR., Postmaster General, Philippine Postal Corporation, and the Legal Officers of the PPC-Main namely, WILFREDO B. SERRANO, MA. TERESA A. LORICO-GONZALES, LEONARDO C. DARANTINAO, JR., HENRY C. FAUSTO, LEE P. VICERAL, ROMAN T. COBRADO, JESSIE R. REOTUTAR, ROMUALDO L. BANAN, and ELEN I. NAGTALON, Petitioners, v. THE COMMISSION ON AUDIT and the CORPORATE AUDITOR FOR PHILIPPINE POSTAL CORPORATION, Respondents. DECISION ROMERO, J.: In this special civil action under Rule 64 of the New Rules of Court, in relation to Rule 65 thereof, petitioners seek the reversal of the Decision 1 dated November 4, 1997 of public respondent Commission on Audit (COA) which affirmed the disallowances made by respondent Corporate Auditor for Philippine Postal Corporation (PPC) of the Representation and Transportation Allowance (RATA) of certain officials of PPC. The dispositive portion of said decision reads:chanroblesvirtuallawlibrary "Upon all the foregoing considerations, this Commission affirms the disallowances made by the Auditor as concurred in by the Director, Corporate Audit Office II, this Commission. Accordingly, the instant appeal has to be, as it is hereby denied for lack of merit."cralaw virtua1aw library The facts are as follows:chanrob1es virtual 1aw library On April 3, 1992, Republic Act No. 7354, otherwise known as "The Postal Service Act of 1992," was enacted and approved creating the Philippine Postal Corporation and defining its powers, functions, and responsibilities. Pursuant to the powers granted to it by the said charter, the PPC Board of Directors issued and approved Board Resolution No. 95-50, 2 entitled "Approving the three-year progressive increase of Representation and Travel Allowance (RATA) benefits equivalent to 40% of the basic salary of the officials of the Philippine Postal Corporation, subject to the existing rules and regulations," The resolution reads in part:chanrob1es virtual 1aw library

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BOARD RESOLUTION NO. 95-50 RESOLVED, as it is hereby resolved that the three year progressive increase of the . . . (RATA) benefits of officials of the Philippine Postal Corporation . . . equivalent to 40% of their basic salary, be approved subject to the existing rules and regulations. RESOLVED FURTHER, that the increases of RATA for 1995 of the following officials to be implemented in the following manner, be confirmed: . . . (c) of the 40% basic salaries of all officials holding positions below the Assistant Postmaster Generals up to Division Managers. RESOLVED STILL FURTHER that an additional fifty percent (50%) increase of the remaining balance thereof be implemented in 1996; RESOLVED STILL FURTHER that the increase of the aforesaid benefit equivalent to 40% of the basic salary of all concerned officials be fully implemented in 1997. x

x

x

On April 26, 1995, to implement the foregoing board resolution, then Postmaster General Eduardo P. Pilapil issued Circular No. 95-22, 3 entitled "Guidelines Implementing Board Resolution No. 95-50 prescribing new rates of RATA of PPC officials." To reproduce the relevant parts of the circular:chanroblesvirtuallawlibrary:red CIRCULAR NO. 95-22 1. The following Officials and employees are entitled to RATA:chanrob1es virtual 1aw library x

x

x

1.6 Regional Operations Managers 1.7 Division Managers/Chiefs of equivalent 2. Payment of RATA, whether commutable or reimbursable, shall be in accordance with the rates prescribed below for the total allowances (50/50 share for each type of allowances):chanrob1es virtual 1aw library Position 1995 1996 1997 x

x

x

2.7 Operations Managers or equivalent (SG 26) P5,100 P5,400 P5,740

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2.8 Division Managers/Chiefs or equivalent (SG 25) 4,700 4,900 5,234 (SG 24) 4,200 4,400 4,734 Meanwhile, Republic Act No. 8174, otherwise known as "The General Appropriations Act of 1996" was approved, Section 35 of which fixes the monthly RATA rates of government officials, to wit:chanrob1es virtual 1aw library SECTION 35. Representation and Transportation Allowances. — The following officials and those of equivalent rank as may be determined by the Department of Budget and Management while in the actual performance of their respective functions are hereby granted monthly commutable representation and transportation allowance payable from the programmed appropriation provided for by their respective offices not exceeding the rates indicated below, which shall apply to each type of allowance:chanrob1es virtual 1aw library x

x

x

e. At P1,750 for assistant Bureau Regional directors or equivalent; f. At P1,625 for Chief of Divisions, identified as such in the Personal Services Itemization . . ."cralaw virtua1aw library On October 23, 1996, respondent Corporate Auditor for Philippine Postal Corporation (PPC) served the following Notices of Disallowance (ND) on PPC:chanrob1es virtual 1aw library (a) ND No. 96-0002-101(96) dated September 23, 1996, covering the RATA of petitioners for the month of April 1996 in the total amount of P65,650.00. (b) ND No. 96-0004-101(96) dated September 23, 1996 covering the RATA of petitioners for May 1996 amounting to P65,350.00. On December 12, 1996, the Auditor served another notice, ND No. 96-0007-101(96) dated November 27, 1996, covering the RATA of petitioners for June 1996 in the amount of P64,525.00. Subsequently, respondent Auditor served other Notices of Disallowance covering the RATA allegedly paid in excess of that authorized under Section 35, R.A. 8174. On February 7, 1997, the new Postmaster General, Irineo V. Intia, Jr. requested respondent Auditor to hold in abeyance the settlement of the above disallowances pending receipt of the legal opinion they had sought from the Office of the Government Corporate Counsel (OGCC). To this, respondent Auditor replied that the proper remedy of petitioners is appeal under Section 37, Title VII of the COA Manual on Certificate of Settlement and Balances (CSB). Accordingly, petitioners filed their Memorandum of Appeal with respondent Commission for the reversal of the Auditor’s decision and the allowance of the implementation of PPC Circular No.

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95-22 as authorized by Board Resolution No. 96-50. They relied on the following grounds:chanrob1es virtual 1aw library 1. Sections 21, and 22, and 25 of R. A. No 7354 (The Postal Service Act of 1992), expressly empower the PPC to establish its own progressive compensation structure and fix the salaries and emoluments of personnel — including the grant of additional benefits like RATA — without being subjected to the rules and regulations of the Compensation and Position Classification Office or the Salary Standardization Law (R.A. No. 6758). 2. The legal opinion of the Department of Budget and Management (DBM) dated March 14, 1996 on which the COA based its decision and which states that pursuant to Section 6 of P.D. No. 1527, the compensation structure of PPC is subject to review and approval by the DBM, is not correct because Section 6 of P.D. 1597 is unconstitutional as it violates the rule against the passage of irrepealable laws. 3. Section 13 of R.A. No. 7354 categorically exempts PPC from submitting to Congress its annual budget unless the PPC requires subsidy/guaranty of its liability from the National Treasury. 4. Paragraph 1 of the special provisions in R.A. No. 8174 admits that corporations exempted from the provisions of R.A. No. 6758 like PPC shall pay the salaries and allowances not in accordance with the Salary Standardization Law. 5. RATA is included in the term "emoluments," the payment of which PPC is authorized to make under R.A. No. 7354. On November 4, 1997, respondent Commission rendered the decision now subject of the instant petition. The assailed decision is reproduced in part:jgc:chanrobles.com.ph "After a careful and judicious evaluation of the facts and pertinent laws, rules and regulations herein obtaining, this Commission finds the appeal devoid of merit. It must be noted that Sections 21, 22 and 25 of R.A. 7354 never intended to exempt the PPC from the ambit of R.A. 6758. What these specific sections provide, especially Section 25, is the exemption of the PPC from the coverage of the rules and regulations of the Compensation and Position Classification Office which relates only to the qualification, position and salary grade of the employees concerned and not to the payment of additional benefits including the increase in the Representation and Transportation Allowance (RATA). Section 22 which provides for a progressive corporation (sic) structure for PPC personnel authorizes the Corporation to grant salary increases subject to either of two conditions stated therein. As to the constitutionality of Section 6 of P.D. No. 1587, the matter is beyond the competence of this Commission to rule upon. Thus, the absence of a contrary ruling by competent authority, this Commission finds no cogent reason to hold the same as being unconstitutional as alleged by herein appellants. Insofar as the validity of the resolution fixing the allowances (e.g. RATA) of its employees by PPC’s Board of Directors is concerned, this Commission fully adopts the stand taken by the DBM in its legal opinion, dated March 14, 1996, which states that:chanrob1es virtual 1aw library ‘Accordingly, the Resolutions or Circulars of the PPC granting additional benefits or

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compensation to its employees without the requisite review and approval by the President of the Philippines upon recommendation of the DBM is believed to be an ultra vires act of the corporation which cannot be given legal effect and recognition. Additional benefits or compensation that may be granted to government officials/employees require a law and may not be done by a mere expedient of a resolution or a circular of a GOCC, as in the case of the PPC.’ The above legal opinion, according to the DBM is based on the following reasons:chanrob1es virtual 1aw library ‘1. While there may be a semblance of exemption for the PPC from the rules and regulations of the Compensation and Position Classification Bureau, such exemption is subject to the qualification that PPC’s own system of compensation and classification conforms as closely as possible with that provided for under R.A. No. 6758. 2. Such PPC exemption should be appreciated in correlation with the provision of Section 6 of P.D. 1597 . . .’ While it is true that Section 13 of R.A. No. 7354 exempts the PPC from submitting to Congress its annual budget unless it seeks subsidy/guaranty of its liability from the National Treasury, it is also true that Section 18 of the same Act provides that the PPC thru its board shall submit to both Houses of Congress, together with the Auditor’s Report on the relevant accounts, an annual report generally dealing with the activities and operations of the Corporation during the preceding year . . . The exemption under Section 13 of R.A. No. 7354 does not in any way intend or show that the Corporation is exempt from R.A. 6758." 4 Aggrieved by the aforequoted decision, petitioners filed this petition before this Court, assigning the following errors:chanrob1es virtual 1aw library I. THE COMMISSION ERRED IN HOLDING THAT PPC IS NOT EXEMPT FROM THE SALARY STANDARDIZATION LAW (R.A. NO. 6758). II. THE COMMISSION ERRED IN CONFORMING WITH THE DBM THAT THE RESOLUTION AND CIRCULAR OF THE PPC GRANTING ADDITIONAL BENEFITS TO ITS EMPLOYEES WITHOUT THE REQUISITE REVIEW AND APPROVAL BY THE PRESIDENT OF THE PHILIPPINES THROUGH THE DBM IS AN ULTRA VIRES ACT OF THE CORPORATION. III. THE COMMISSION ERRED WHEN IT RULED THAT THE MONTHLY RATA OF PPC OFFICIALS MUST CONFORM TO THE AMOUNTS PRESCRIBED IN SECTION 35 OF REPUBLIC ACT NO. 8174. As to the first issue, petitioners argued that Sections 21, 22, and 25 of the PPC charter (R.A. No. 7354) exempt it from the Salary Standardization Law or the Compensation and Position Classification Office rules. The said provisions read:chanrob1es virtual 1aw library SECTION 21. Powers and Functions of the Postmaster General. — As the Chief Executive Officer, the Postmaster General shall have the following powers and functions:chanrob1es virtual 1aw library x

x

x

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c) subject to the approval of the Board, to determine the staffing, pattern and the number of personnel, define their duties and responsibilities, and fix their salaries and emoluments in accordance with the approved compensation structure of the Corporation. x

x

x

SECTION 22. Merit System. — The Corporation shall establish a human resource management system which shall govern the selection, hiring, appointment, transfer, promotion, or dismissal of all personnel. Such system shall aim to establish professionalism and excellence at all levels of the postal organization in accordance with sound principles of management. A progressive compensation structure, which shall be based on job evaluation studies and wage surveys and subject to the Board’s approval, shall be instituted as an integral component of the Corporation’s human resources development program. The Corporation, however, may grant across the board salary increase or modify its compensation structure as to result in higher salaries, subject to either of the following conditions:chanrob1es virtual 1aw library a) there are evidences of prior improvement in employee productivity, measured by such quantitative indicators as mail volume per employee and delivery times. b) a law raising the minimum wage has been enacted with application to all government employees or has the effect of classifying some positions in the postal service as below the floor wage. SECTION 25. Exemption from Rules and Regulations of the Compensation and Position Classification Office. — All personnel and positions of the Corporation shall be governed by Section 22 hereof, and as such shall be exempt from the coverage of the rules and regulations of the Compensation and Position Classification Office. The Corporation, however, shall see to it that its own system conforms as closely as possible with that provided for under Republic Act No. 6758. Petitioners averred that since the PPC has the power under Sections 21 and 22 of R.A. No. 7354 to fix its own compensation scheme and Section 25 of said charter expressly exempts it from the rules of the Compensation and Position Classification Office, it is clear that PPC Board Resolution No. 95-50 and PPC Circular 95-22 are valid corporate acts that can be the basis of the payment of RATA to PPC officials without prior approval from the DBM. As for the DBM legal opinion which was the basis for the disallowance of the payments of the RATA, petitioners assailed the same for being erroneous. According to the DBM, notwithstanding the exemption of PPC from the rules of CPCO granted under Section 25 of R.A. 7354, the DBM has the power to review and approve the compensation structure of PPC because of Section 6 of P.D. No. 1597:chanrob1es virtual 1aw library SECTION 6. Exemption from OCPC Rules and Regulations. — Agencies, positions or groups of officials and employees of the national government, including government-owned and

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controlled corporations, who are hereafter exempted by law from OCPC coverage, shall observe such guidelines and policies as may be issued by the President governing position classification, salary rates, levels of allowances, project and other honoraria, overtime rates, and other forms of compensation and fringe benefits. Exemptions notwithstanding, agencies shall report to the President, through the Budget Commission, on their position classification and compensation plans, policies, rates and other related details following such specifications as may be prescribed by the President. (Emphasis supplied) Petitioners, however, argued that Section 6, P.D. No. 1597 has already been repealed by Section 35 of R.A. No. 7354 which reads:chanrob1es virtual 1aw library SECTION 35. All acts, decrees, orders, executive orders, instructions, rules and regulations, inconsistent with the provisions of this Act are repealed or modified accordingly. They pointed out that R.A. No. 7354 (The Postal Service Act of 1992) being a special and later law, it prevails over P.D. No. 1597, a general law which refers to all government agencies and GOCCs covered by and those exempted from the rules of the CPCO. For these reasons, petitioners claimed that the power of the DBM to review and approve PPC’s resolutions and circulars implementing the latter’s compensation plans is no longer in force. Petitioners likewise posited that Section 6, P.D. No. 1597 has no legal effect, it being in the nature of an irrepealable provision of law. They pointed to the phrase "agencies . . . of the national government, including government-owned and controlled corporations, who are hereafter exempted by law from coverage . . .," as violative of the Constitutional provision that legislative power shall be vested in the legislature and the prohibition against the passage of irrepealable laws. In effect, petitioners maintained, Section 6 limits the lawmaking powers of Congress by providing for conditions to be applied to agencies or GOCCs that are yet to be created. Even assuming arguendo that Section 6, P.D. No. 1597 has legal effects, petitioners theorized, it cannot be considered as requiring prior approval of the DBM since said provision only requires the PPC to observe the guidelines on compensation schemes and to report to the President about its position classification and compensation system. Furthermore, petitioners asserted that scrutinizing the Senate deliberations, it is clear that the management and budgetary system of the PPC was being taken out of the control of the DBM. As to the applicability of Section 35 of R.A. No. 8174 limiting the amounts of RATA granted to certain employees, petitioners argued that said provision does not apply to the monthly RATA rates of PPC corporate officials, as PPC’s budget is not covered by the Appropriations Act or R.A. No. 8174. This, they said, is clear from Section 13 of the PPC Charter (R.A. No. 7354):chanrob1es virtual 1aw library SECTION 13. Annual Budget. — . . . Unless the Corporation shall require a subsidy and/or a guarantee of its liability from the National Treasury, its budget for the year need not be submitted to Congress for approval and inclusion in the General Appropriations Act. On the other hand, in its comment, the Office of the Solicitor General argued that Section 6 of P.D. 1597 is valid and subsisting, there having been no express or implied repeal of the

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assailed provision. Moreover, the Solicitor General explained that although Section 25 of the PPC charter exempts the corporation from the CPCO rules and regulations, under Section 6 of P.D. No. 1597, however, it is still required to report the details of its compensation system to the President through the DBM. The two provisions in question are thus compatible and reconcilable. With respect to the argument that the PPC is exempted from the coverage of the CPCO rules and regulations, the Solicitor General observed that the said exemption is not absolute as it refers only to exemption from the application of rules and regulations relating to position and compensation classification. Moreover, the Solicitor General added, the term "compensation" in said law refers to the salary structure of government personnel and not to allowances. From the foregoing, the issues of the present controversy may therefore be summed up as follows: (1) whether the PPC Board of Directors can, by itself, grant through a resolution an increase in allowances to its officials without said resolution going to the DBM for review and approval and (2) whether the RATA granted to PPC officials falls within the amounts provided in the General Appropriations Act. This Court rules in the negative on both issues. First, it is conceded that the PPC, by virtue of its charter, R.A. No. 7354, has the power to fix the salaries and emoluments of its employees. This function, being lodged in the Postmaster General, the same must be exercised with the approval of the Board of Directors. This is clear from Sections 21 and 22 of said charter. Petitioners correctly noted that since the PPC Board of Directors are authorized to approve the Corporation’s compensation structure, it is also within the Board’s power to grant or increase the allowances of PPC officials or employees. As can be gleaned from Sections 10 and 17 of P.D. No. 985 (A Decree Revising the Position Classification and Compensation System in the National Government, and Integrating the Same), the term "compensation" includes salaries, wages, allowances, and other benefits. SECTION 10. The Compensation System. — The Compensation System consists of (a) a Salary Schedule; (b) a Wage Schedule; (c) policies relating to allowances, bonuses, pension plans, and other benefits accruing to employees covered . . . (Emphasis supplied). SECTION 17. Powers and Functions. — The Budget Commission principally through the OCPC shall, in addition to those provided under other sections of this Decree, have the following powers and functions:chanrob1es virtual 1aw library x

x

x

(g) Provide the required criteria and guidelines, in consultation with agency heads as may be deemed necessary and subject to the approval of the Commissioner of Budget, for the grant of all types of allowances and additional forms of compensation to employees in all agencies of the government. Besides, allowances such as RATA are included in the term "emoluments" which, under

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Section 21 of RA 7354, the Postmaster General is authorized to grant to PPC personnel with the approval of the Board of Directors. Black’s Law Dictionary defines "emolument" as that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees and perquisites. The Commission on Audit was, therefore, in error when it held in its decision that "the exemption of the PPC from the coverage of the rules and regulations of the Compensation and Position Classification Office . . . relates only to the qualification, position and salary grade of the employees concerned and not to the payment of additional benefits including the increase in the Representation and Transportation Allowance (RATA)."cralaw virtua1aw library While the PPC Board of Directors admittedly acted within its powers when it granted the RATA increases in question, the same should have first been reviewed by the DBM before they were implemented. Sections 21, 22, and 25 of the PPC charter should be read in conjunction with Section 6 of P.D. No. 1597:chanrob1es virtual 1aw library SECTION 6. Exemption from OCPC Rules and Regulations. — Agencies, positions or groups of officials and employees of the national government, including government-owned and controlled corporations, who are hereafter exempted by law from OCPC coverage, shall observe such guidelines and policies as may be issued by the President governing position classification, salary rates, levels of allowances, project and other honoraria, overtime rates, and other forms of compensation and fringe benefits. Exemptions notwithstanding, agencies shall report to the President, through the Budget Commission, on their position classification and compensation plans, policies, rates and other related details following such specifications as may be prescribed by the President. (Emphasis supplied). Contrary to petitioners’ position, said provision still applies and has not been repealed either expressly or impliedly. Their reliance on the general repealing clause in Section 35 5 of R.A. No. 7354 is erroneous. The holding of this Court in Mecano v. COA 6 is instructive: "The question that should be asked is: What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to identify or designate the act or acts that are intended to be repeated. Rather, it is an example of a general repealing provision, as stated in Opinion No. 73, s. 1991. It is a clause which predicates the intended repeal under the condition that a substantial conflict must be found in existing and prior acts. The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws. This latter situation falls under the category of an implied repeal. As the Solicitor General correctly observed, there is no express repeal of Section 6 P.D. No. 1597 by R.A. No. 7354. Neither is there an implied repeal thereof because there is no irreconcilable conflict between the two laws. On the one hand, Section 25 of R.A. No. 7354 provides for the exemption of PPC from the rules and regulations of the CPCO. On the other hand, Section 6 of P.D. 1597 requires PPC to report to the President, through the DBM, the details of its salary and compensation system. Thus, while the PPC is allowed to fix its own personnel compensation structure through its Board of Directors, the latter is required to follow certain standards in formulating said compensation system. One such standard is specifically stated in Section 25 of R.A. No. 7354:chanrob1es virtual 1aw library SECTION 25. Exemption from Rules and Regulations of the Compensation and Position

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Classification Office. — All personnel and positions of the Corporation shall be governed by Section 22 hereof, and as such shall be exempt from the coverage of the rules and regulations of the Compensation and Position Classification Office. The Corporation, however, shall see to it that its own system conforms as closely as possible with that provided for under Republic Act No. 6758. (Emphasis supplied) To sustain petitioners’ claim that it is the PPC and PPC alone that should ensure that its compensation system conforms as closely as possible with that of R.A. No. 6758 will result in an invalid delegation of legislative power. If such interpretation is adopted, the law would, in effect, be granting PPC unfettered discretion to fix its compensation structure, something the legislature could not have intended. As the Solicitor General put it, Section 6 of P.D. No. 1597 is the "detail" intended to fill the gap in such laws as R.A. No. 7354 in order to ensure that delegation of legislative authority will be "canalized within banks to keep it from overflowing."cralaw virtua1aw library It should be emphasized that the review by the DBM of any PPC resolution affecting the compensation structure of its personnel should not be interpreted to mean that the DBM can dictate upon the PPC Board of Directors and deprive the latter of its discretion on the matter. Rather, the DBM’s function is merely to ensure that the action taken by the Board of Directors complies with the requirements of the law, specifically, that PPC’s compensation system "conforms as closely as possible with that provided for under R.A. No. 6758."cralaw virtua1aw library Section 25 of R.A. No. 7354 and Section 6 of P.D. No. 1597 can thus be read together and harmonized to give effect to both provisions. This court has held that statutes should be construed in light of the objective to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief, and secure the benefits intended. 7 Clearly, therefore, no implied repeal can be deduced in this case. Worth reiterating is the rule in statutory construction that repeals by implication are not favored. When statutes are in pari materia, they should be construed together. A law cannot be deemed repealed unless it is clearly manifest that the legislature so intended it.chanroblesvirtuallawlibrary As regards petitioners’ argument that P.D. No. 1597 cannot be given any legal effect as it is unconstitutional because it is in the nature of an irrepealable law, suffice it to say that this Court will refrain from striking down a law if the case can be decided on other grounds. The Court will not touch the issue of unconstitutionality unless it is the very lis mota of the case. Thus, the Supreme Court held: "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 raise its judgment, that course will be adopted and the constitutional question will be left for consideration until such question will be unavoidable." 8 With respect to the second issue of whether the RATA granted to PPC officials must fall within the amounts provided for in the General Appropriations Act, as stated earlier, we rule in the negative.

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Section 13 of the PPC charter expressly provides for PPC’s fiscal autonomy. Thus, unless PPC requires a subsidy and/or a guarantee of its liability from the National Treasury, its annual budget need not be submitted to Congress for approval and included in the General Appropriations Act. The intention of the lawmakers here is to promote the efficiency of the postal service by allowing the PPC to use its profits from its operations to upgrade its facilities and equipment and provide incentives for its personnel to render better services. Specifically, fiscal autonomy allows the PPC to attract and keep professional and competent people within its ranks. To sum up, the PPC being a government-owned and controlled corporation with an original charter, it falls within the scope of the Civil Service. 9 Thus, as regards personnel matters, the Civil Service Law applies to the PPC. Its Board of Directors is authorized under its charter to formulate and implement its own system of compensation for its personnel, including the payment of RATA. In the exercise of such power, it is not required to observe the rules and regulations of the Compensation and Position Classification Office. Neither it is required to follow strictly the amounts provided for in the General Appropriations Act as its annual budget is not covered thereby. However, since the PPC charter expressly exempts it from the rules and regulations of the CPCO, said Board is not required to follow the CPCO’s Guidelines in formulating a compensation system for the PPC employees. 10 In other words, the general rule is that the PPC is covered by the Civil Service Law as regards all personnel matters except those affecting the compensation structure and position classification in the corporation which are left to the PPC Board of Directors to formulate in accordance with law. It must be stressed that the Board’s discretion on the matter of personnel compensation is not absolute as the same must be exercised in accordance with the standard laid down by law, that is, its compensation system, including the allowances granted by the Board to PPC employees, must strictly conform with that provided for other government agencies under R.A. No. 6758 (Salary Standardization Law) in relation to the General Appropriations Act. To ensure such compliance, the resolutions of the Board affecting such matters should first be reviewed and approved by the Department of Budget and Management pursuant to Section 6 of P.D. No. 1597. WHEREFORE, premises considered, the petition is hereby DISMISSED and the assailed decision dated November 4, 1997 is AFFIRMED with the following MODIFICATIONS:chanrob1es virtual 1aw library (a) The exemption of the Philippine Postal Corporation from the coverage of the rules and regulations of the Compensation and Position Classification Office includes, not only the fixing of the qualification, position, and salary grade of the Corporation’s employees but also the payment of additional benefits, including increases in their Representation and Transportation Allowance; (b) The Representation and Transportation Allowance granted to the concerned employees of the Corporation need not be limited to the amounts provided for in the General Appropriations Act; and (c) However, the compensation system set up must conform as closely as possible with that

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provided for other government agencies under R.A. No. 6758 in relation to the General Appropriations Act and must, moreover, be reviewed and approved by the Department of Budget and Management pursuant to Section 6 of P.D. No. 1597. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Puno, Panganiban, Quisumbing and Purisima, JJ., concur in the result. Vitug, J., I concur but except from the view that the compensation system requires the approval of DBM. Endnotes:

1. Rollo, p. 30. 2. ibid., p. 31. 3. ibid., p. 32. 4. ibid., pp. 28-30. 5. Sec. 35. All acts, decrees, orders, instructions, rules and regulations, inconsistent with the provisions of this Act are repealed or modified accordingly. 6. 216 SCRA 500 (1992). 7. Paat v. Court of Appeals, 266 SCRA 167 (1997). 8. Sotto v. Commission on Elections, 76 Phil. 516 (1946). 9. Sec. 6, Book V, Title I, Subtitle A, Revised Administrative Code of 1987. 10. Sec. 25, R.A. No. 7354.

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FIRST DIVISION [G.R. No. L-8321. March 26, 1956.] BRAULIO QUIMSON, Plaintiff-Appellant, vs. ROMAN OZAETA, ET AL., Defendants-Appellees.

DECISION MONTEMAYOR, J.: This is an appeal from the decision of the Court of First Instance of Quezon City, dismissingPlaintiff’s complaint for the recovery of accrued salaries, first taken to the Court of Appeals, and later certified to us for the reason that said appeal involved only questions of law. The facts are simple and clear, and as found by the trial court may be briefly stated as follows:chanroblesvirtuallawlibrary The Rural Progress Administration (later referred to as Administration) is a public corporation created for the purpose of acquiring landed estates through purchase, expropriation or lease, and later sub-letting or sub-leasing the same to tenants or occupants. The officials and employees of the Administration may be considered as civil service employees embraced in the classified service. Sometime in 1947, one Aurelio R. Peña, then comptroller of the Administration and performing duties of auditor in representation of the Auditor General recommended to the Board of Directors of the Administration that for purposes of economy municipal treasurers be appointed agent-collectors of the Administration, and this recommendation was adopted by the Board of Director. Thereafter, Faustino Aguilar, then manager of the Administration, prepared the appointment for the post of agent- collector on a part-time basis in favor of Plaintiff-Appellant Braulio Quimson, with compensation of P720 per annum, the appointment to take effect upon assumption of duty. At the time, Quimson was deputy provincial treasurer and municipal treasurer of Caloocan, Rizal. Defendant-AppelleeRoman Ozaeta who by reason of his office of Secretary of Justice was acting as Chairman of the Board of Directors, signed the appointment and forwarded the papers to the President through the Secretary of Finance for approval. Without waiting for the said approval Quimson assumed his position on May 6, 1948 and rendered service as agent-collector of the Administration until October 21, 1949, inclusive, when he was informed that because of the disapproval of his appointment, his services were considered terminated. There were several objections to his appointment, among them that of the Auditor General on the ground that since Quimson was deputy provincial treasurer and municipal treasurer of Caloocan, his additional compensation as agent-collector would contravene the Constitutional prohibition against double compensation. The Commissioner of Civil Service said that he would offer no objection to the additional compensation of Quimson as agent-collector provided it was authorized in a special provision exempting the case from the inhibition against the payment of extra compensation in accordance with section 259 of the Revised Administrative Code. In this connection, it may be stated that this section of the Administrative Code provides that in the absence of special provision, no officer or employee in any branch of the Government service shall receive additional compensation on account of the discharge of duties pertaining to another or to the performance of public service of whatever nature. Faustino Aguilar as manager of the Administration asked for the reconsideration of the ruling of the Auditor General, alleging that the appointment of the Plaintiff was for reasons of economy and efficiency, but the Auditor General denied the request stating that reasons of economy and efficiency are not valid grounds for evading the constitutional prohibition against additional compensation in the absence of a law specifically authorizing such compensation. So, the services of Quimson as

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agent-collector of the Administration were terminated. But R. Gonzales Lloret, then manager of the Administration on October 18, 1949, inquired from the auditor of the Administration whether Quimson could be paid for the period of actual service rendered by him from May 10, 1948, and the said auditor gave the opinion that it could not be done for the reason that in his opinion the appointment extended to Quimson was clearly illegal and the Administration may not be obliged to pay him for the services rendered since it was a violation of section 3, Article XII, of the Constitution prohibiting double compensation. At the same time he expressed the opinion that under section 691 of the Revised Administrative Code the appointing official who made the illegal appointment should be made liable for the payment of salary of the appointee, and consequently, Plaintiff should claim his salary for services rendered against said appointing officer. It is highly possible that this opinion was what induced and prompted Quimson to file the present case against Roman Ozaeta who, as Chairman of the Board, signed his appointment, and the members of the said Board, namely:chanroblesvirtuallawlibrary Faustino Aguilar, Vicente Fragante, Roman Fernandez and Pedro Magsalin. The action was initiated in the Justice of the Peace Court which dismissed the complaint. On appeal to the Court of First Instance of Quezon City, as already stated, the complaint was also dismissed. For purposes of reference we are reproducing section 691 of the Revised Administrative Code, to wit:chanroblesvirtuallawlibrary “SEC. 691. Payment of person employed contrary to law. — Liability of chief of office. — No person employed in the classified service contrary to law or in violation of the civil service rules shall be entitled to receive pay from the Government; chan roblesvirtualawlibrarybut the chief of the bureau or office responsible for such unlawful employment shall be personally liable for the pay that would have accrued had the employment been lawful, and the disbursing officer shall make payment to the employee of such amount from the salary of the officers so liable.” In our opinion, the present appeal can be resolved without much difficulty. Section 691 of the Administrative Code above reproduced refers and applies to unlawful employment and not to unlawful compensation. The appointment or employment of Plaintiff-Appellant Quimson as agent-collector was not in itself unlawful because there is no incompatibility between said appointment and his employment as deputy provincial treasurer and municipal treasurer. In fact, he was appointed agent-collector by reason of his office, being a municipal treasurer. There is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. Clerks of court are sometimes appointed or designated as provincial sheriffs. Municipal Treasurers like Plaintiffare often appointed and designated as deputy provincial treasurer. The Department Secretaries are often designated to act as Chairman or members of Board of Directors of government corporations. The objection or prohibition refers to double compensation and not to double appointments and performance of functions of more than one office. According to law, under certain circumstances, the President may authorize double compensation in some cases, such as government officials acting as members with compensation in government examining boards like the bar examinations, or department secretaries acting as members of Board of Directors of government corporations, and in such cases the prohibition against double compensation is not observed. This undoubtedly, was the reason why the appointment of Quimson had to be coursed through different offices like the Department of Finance, the Civil Service Commission, and the Office of the Auditor General to the President for approval. If the President approves the double compensation, well and good. The appointee whose appointment may then be regarded as valid from the beginning could receive extra compensation. If it is disapproved, then the appointment will have to be withdrawn or cancelled, unless of course, the appointee was willing to serve without compensation, in which case there could be no valid objection. This is another proof that the appointment of Quimson was not illegal or unlawful. It was only the double compensation that was subject to objection. The trouble was that Plaintiff herein assumed office without waiting for the result of the action to be taken upon his appointment and compensation by the President and the different offices which the appointment had to go through. Furthermore, Quimson would appear to have assumed office without notifying the official who appointed him, namely, Roman Ozaeta. Plaintiff, therefore, took the risk or hazard of not being paid for any service that he may render in the meantime. His counsel now contends that the appointing official should have known that double Page 221 of 492

compensation was prohibited by law and therefore he should not have appointed Quimson as agent-collector. That is seemingly a plausible stand. But it should be borne in mind that there are exceptions to the prohibition; chan roblesvirtualawlibrarythat the very comptroller of the Administration, representing the Auditor General, recommended the appointment of municipal treasurers, like the Plaintiff, as agent-collectors, and so Defendant Ozaeta and the other members of the Board of Directors may have believed that the Chief Executive might approve Plaintiff’s appointment. Besides, it may also be said that Quimson himself, a Deputy Provincial Treasurer and Municipal Treasurer, a financial officer expected to be tersed in government disbursements and payments of salaries and compensation should have also known and undoubtedly he knew about that prohibition against double compensation. He should have known that his appointment had to go over or through several obstacles and hazards, but he took the risk and began serving as agent-collector before his appointment was approved. We are afraid that he has no one to blame but himself. Finding no reversible error in the decision appealed from, the same is hereby affirmed, with costs. Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.

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EN BANC [G.R. No. 139792. November 22, 2000.] ANTONIO P. SANTOS, Petitioner, v. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION, Respondents. DECISION DAVIDE, JR., C.J.: In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals 1 in CA-G.R. SP No. 48301, which held that petitioner’s separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement gratuity and pension.chanrob1es virtua1 1aw 1ibrary The undisputed facts are as follows:chanrob1es virtual 1aw library On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office. After the military-backed EDSA revolt, petitioner was reappointed to the same position. On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910, 2 as amended, and received his retirement gratuity under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension. On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic Operation Center of the MMA. His appointment was approved by the Civil Service Commission (CSC). On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development Authority (MMDA). Section 11 thereof reads:chanrob1es virtual 1aw library SECTION 11. Transitory Provisions. — To prevent disruption in the delivery of basic urban

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services pending the full implementation of the MMDA’s organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exercise their duties and functions and receive their salaries and allowances until they shall have been given notice of change of duties and functions, and of being transferred to another office or position. x

x

x

The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced. The national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of one and one-fourth (1¼) month’s salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws, said employees may opt to receive the benefits thereunder.chanrob1es virtua1 1aw 1ibrary On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A. No. 7924. On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his "voluntary option to be separated from the service" his services would automatically cease effective at the close of office hours on 15 September 1996, and that he would be entitled to "separation benefits equivalent to one and one-fourth (1¼) monthly salary for every year of service as provided under Section 11 of the MMDA Law."cralaw virtua1aw library In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted that since the retirement gratuity he received under R.A. No. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924. The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR. On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioner’s separation pay must be in accordance with Civil Service Resolution No. 92-063, pertinent portions of which read:chanrob1es virtual 1aw library [T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double compensation in cases when officers and employees who were previously granted said benefits are rehired or reemployed in another government Agency or Office. Thus, there is no need for separated employees to refund the separation/retirement benefits they received when subsequently reemployed in another government agency or office. . . . This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in the government service, as aforestated, for reasons of equity however, it would be proper and logical that said separation/retirement benefits should nevertheless be deducted from the retirement/[separation] pay to be received by the employee concerned. Moreover, in this instance, the employee concerned has the

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option either to refund his separation/retirement benefits and claim his gross retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the total amount representing his previous separation/retirement pay received. His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC.chanrob1es virtua1 1aw 1ibrary On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioner’s appeal. Citing Chaves v. Mathay 3 it held that petitioner cannot be paid retirement benefits twice — one under R.A. No. 910, as amended, and another under R.A. No. 7924 — for the same services he rendered as MeTC Judge. He can only exercise one of two options in the computation of his separation pay under R.A. 7924. These options are (1) to refund the gratuity he received under R.A. No. 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2 months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service. On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioner’s motion for reconsideration. Accordingly, petitioner filed with the Court of Appeals a petition to set aside these Resolutions. On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case. It held that the CSC was "correct in dismissing petitioner’s appeal from the opinion of Director Acebedo." It ratiocinated as follows:chanrob1es virtual 1aw library There is no specific rule of law which applies to petitioner’s case. Nevertheless, the Court finds it equitable to deny his claim for payment of separation pay at the rate of one and one-fourth (1¼) month’s salary for every year of his service in government, that is, inclusive of the number of years he served as Judge of the Metropolitan Trial Court of Manila [sic]. Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial Court Judge. Equity dictates that he should no longer be allowed to receive further gratuity for said years of service in the guise of separation pay. Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of his government service. The State has already shown its gratitude for his services when he was paid retirement benefits under Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards [are] given to an employee who has given up the best years of his life to the service of his country (Gov’t. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188). Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro Manila Authority (MMA), another chapter of

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petitioner’s government service which has come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority.chanrob1es virtua1 1aw 1ibrary The Court, in limiting the computation of petitioner’s separation pay to the number of years of his service at the MMA, merely is implementing the ruling in "Chavez, Sr. v. Mathay" (37 SCRA 776), which ruling, if not actually in point, is nevertheless applicable owing to its "commonsense consideration." Said ruling reads:jgc:chanrobles.com.ph "The ‘common-sense consideration’ stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his years of service under his first retirement in computing his gratuity under his second retirement, it is but just that the retirement gratuity received by him under his first retirement should also be charged to his account, manifestly govern the case at bar. It is but in accordance with the rule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or pension such as petitioner’s, ‘would run roughshod over the well-settled rule that in the absence of an express legal exception, pension and gratuity laws should be so construed as to preclude any person from receiving double pension.’ (p. 780, Emphasis supplied) The case at bench is not, strictly speaking, about ‘double pension.’ It is, however, about the interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards separation pay to those government employees who were displaced by the reorganization of the MMA into the MMDA, which should be construed to preclude a government employee from receiving double gratuity for the same years of service. We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing or determining petitioner’s separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in the MMA. In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of "one and one-fourth (1¼) months of salary for every year of service" cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the government outside the MMA. Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA. The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is settled that Congress may abolish public offices. Such a power is a consequent prerogative of its power to create public offices. 4 However, the power to abolish is subject to the condition that it be exercised in good faith. 5 The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected. Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service. If he were convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his previous years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads:chanrob1es virtual 1aw library Provided, That, if qualified for retirement under existing retirement laws, said employee may

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opt to receive the benefits thereunder.chanrob1es virtua1 1aw 1ibrary Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has been receiving a monthly pension. The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:chanrob1es virtual 1aw library Pensions or gratuities shall not be considered as additional, double, or indirect compensation. This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached. 6 Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute double compensation. He could continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof. This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA. However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. 7 More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:chanrob1es virtual 1aw library No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law . . . . Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA.chanrob1es virtua1 1aw 1ibrary WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED. Costs against petitioner. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

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Endnotes:

1. Rollo, 31-41. Per Barcelona, R., J., with Demetria, D., and Gozo-Dadole, M., JJ., concurring. 2. Not R.A.. No. 901 as stated in the challenged decision of the Court of Appeals (Rollo, 31), or R.A. No. 601 as stated in Resolution No. 97-4266 of the Civil Service Commission (Rollo, 50 and 52). R.A. No. 910, as amended, was further amended by R.A. No. 5095 and P.D. No. 1438. 3. 37 SCRA 776 [1971]. 4. Manalang v. Quitoriano, 94 Phil. 903 [1954]; Rodriguez v. Montinola, 94 Phil. 964 [1954]; Castillo v. Pajo, 103 Phil. 515 [1958]; Ulep v. Carbonell, 4 SCRA 375 [1962]; Llanto v. Dimaporo, 16 SCRA 599 [1966]; Canonizado v. Aguirre, G.R. No. 133132, 25 January 2000. 5. Cruz v. Primicias, 23 SCRA 998 [1968]; Canonizado v. Aguirre, supra. 6. II JOAQUIN BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES (A Commentary) 341 (1988 ed.). 7. Espejo v. Auditor General, 97 Phil. 216 [1955]; Borromeo v. GSIS, 110 Phil. [1960]; Anciano v. Otadoy, 27 SCRA 200 [1969]; Chavez v. Mathay, supra note 3.

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EN BANC [G.R. No. 100113. September 3, 1991.] RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS, 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. DECISION PARAS, J.: 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:jgc:chanrobles.com.ph "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 1(1), Article XII-C of the 1973 Constitution which similarly provides:jgc:chanrobles.com.ph "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 al least ten years." (Emphasis supplied) Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of Page 229 of 492

law as a legal qualification to an appointive office.chanrobles virtual lawlibrary Black defines "practice of law" as:jgc:chanrobles.com.ph "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:jgc:chanrobles.com.ph ". . . 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:jgc:chanrobles.com.ph "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 matters connected 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 modern 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

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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 (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counseling 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 D. 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." chanrobles virtual lawlibrary "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 1 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

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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."cralaw virtua1aw library . . . (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

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firms, there are younger or more inexperienced salaried attorneys called "associates." (Ibid.). The test that defines law practice by looking to traditional areas of law practice is essentially tautologies, 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.).chanrobles.com:cralaw:red 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 describe[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 will 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 will 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

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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 contexts 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).

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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 in-house 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.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 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 organization. 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, this 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)

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acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skills 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 nation-state 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 modern corporate lawyer has gained a new role as a stockholder — 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:chanrob1es virtual 1aw library First System Dynamics. The field of systems dynamics has been found an effective tool for

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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 systems 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 kinds 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:chanrob1es virtual 1aw library 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.chanrobles lawlibrary : rednad 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 make-up of the modern 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

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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," Jar. 11, 1989, p. 4).chanrobles law library : red 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 quasi-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 Muñoz-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.

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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 re negotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in re negotiation. 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 complete 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-

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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:chanrobles.com : virtual law library "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:jgc:chanrobles.com.ph "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:jgc:chanrobles.com.ph "The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without re appointment. 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 re appointment. 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."cralaw virtua1aw library 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

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intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla’s definition would require generally a habitual law practice, perhaps practiced 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 practicing law for over ten years. This is different from the acts of persons practicing 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:chanrob1es virtual 1aw library The Commission onTHE BASIS OF evidence submitted during 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.chanrobles lawlibrary : rednad Additionally, consider the following:chanrob1es virtual 1aw library (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 confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still

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reverse the U.S. Senate. Finally, one significant legal maxim is:jgc:chanrobles.com.ph "We must interpret not by the letter that killeth, but by the spirit that giveth life."cralaw virtua1aw library 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."cralaw virtua1aw library 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., Griño-Aquino and Medialdea, JJ., concur. Melencio-Herrera, J., concurs in the result. Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.). Sarmiento, J., is on leave. Regalado and Davide, Jr., JJ., took no part. Separate Opinions NARVASA, J., concurring:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library

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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 low 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."cralaw virtua1aw library 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 bounded 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 v. 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 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 (State v. Bryan, 4 S.E. 522, 98 N.C.

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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:jgc:chanrobles.com.ph "1. Habituality. The term ‘practice of law’ implies customarily or habitually holding one’s self out to the public as a lawyer (People v. 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 Paño, 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, 94AL.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:chanrob1es virtual 1aw library 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?

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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 v. Villanueva: 4 "Essentially, the word private 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 a compensation, as a source of his livelihood or in consideration of his said services."cralaw virtua1aw library 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:chanrob1es virtual 1aw library 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 his viewpoint. 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.chanrobles virtual lawlibrary In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choose between 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 disqualify 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

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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."cralaw virtua1aw library 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."cralaw virtua1aw library 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-at-law 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

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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:chanrob1es virtual 1aw library 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.chanrobles law library 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-

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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:jgc:chanrobles.com.ph "1.15.1 Respondent Monsod’s activities since his passing the Bar examinations in 1961 consist of the following:chanrob1es virtual 1aw library 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:chanrob1es virtual 1aw library a. ACE Container Philippines, Inc. b. Dataprep, Philippines c. Philippine SUN systems Products, Inc. d. Semirara Coal Corporation e. CBL Timber Corporation

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Member of the Board of the Following:chanrob1es virtual 1aw library 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 law enough 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 legal advice of legal services, he was the one receiving that advice 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.chanrobles lawlibrary : rednad 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."

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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:jgc:chanrobles.com.ph "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 III. 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 III. 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:chanrob1es virtual 1aw library x

x

x

"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-mine 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.’ x

x

x

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 realestate 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

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x

x

x

". . . 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 ‘attorneys 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 retainer of 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 gaining; . . . 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]):chanroblesvirtualawlibrary x

x

x

". . . 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:jgc:chanrobles.com.ph "1. Habituality. The term ‘practice of law’ implies customarily or 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 log citing State v. Cotner, 127, p. 1, 87 Kan, 864)." (Rollo, p. 115).

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x

x

x

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., dissents. Endnotes:

PADILLA, J., dissenting:chanrob1es virtual 1aw library 1. Webster’s 3rd New International Dictionary. 2. 14 SCRA 109. 3. Commission on Appointments’ Memorandum dated 25 June 1991 RE: WHAT CONSTITUTES PRACTICE OF LAW, pp. 6-7. 4. 14 SCRA 109.

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EN BANC [G.R. No. 93867 : December 18, 1990.] 192 SCRA 358 SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent. DECISION CRUZ, J.: The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to investigate the December 1989 coup d' etat attempt. The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission on Elections) be appointed or designated in a temporary or acting capacity." The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solicitor General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member of the Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be resolved by the members themselves and that the intrusion of the President of the Philippines violates their independence. He cites the practice in this Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the President of the Philippines is necessary. In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case of the Commission on Elections. The designation made by the President of the Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC.

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Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on Elections would have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even assuming that difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor General maintains. Article IX-A, Section 1, of the Constitution expressly describes all the 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. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IXA, Section 7. The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the President of the Philippines. A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal.chanrobles virtual law library It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Associate Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of that temporary position. The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning. In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority rule as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them and not the President to make. The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar. The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines.

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WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without prejudice to the incumbent Associate Commissioners of the Commission on Elections restoring her to the same position if they so desire, or choosing another member in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the consent of the Commission on Appointments.: rd SO ORDERED. Fernan C . J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur. Feliciano, J., is on leave. Sarmiento, J., took no part.

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EN BANC G.R. No. 104848 January 29, 1993 ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVES, EMMANUEL ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO, and NOEL NAVARRO, Petitioners, vs.HON. SINFOROSO V. TABAMO, JR., in his capacity as Presiding Judge of Branch 28 of the Regional Trial Court of Mambajao, Camiguin, and PEDRO P. ROMUALDO, Respondents. Villarama & Cruz for petitioners.chanrobles virtual law library Marciano LL. Aparte, Jr. for private respondents. DAVIDE, JR., J.: This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court. Petitioners would have Us prohibit, restrain and enjoin public respondent Sinforoso V. Tabamo, Jr., Presiding Judge of Branch 28 of the Regional Trial Court (RTC) of Mambajao, Camiguin, from continuing with the proceedings in a petition for injunction, prohibition and mandamus with a prayer for a writ of preliminary injunction and restraining order filed as a taxpayer's suit, docketed therein as Special Civil Action No. 465 and entitled "Pedro P. Romualdo, Jr. versus Gov. Antonio Gallardo, et al." Petitioners likewise seek to prohibit the enforcement of the Temporary Restraining Order (TRO), issued by the respondent Judge on 10 April 1992, on the ground that the latter acted whimsically, capriciously and without jurisdiction when he took cognizance of the case and issued the said order. It is the petitioners' thesis that the said case principally involves an alleged violation of the provisions of the Omnibus Election Code the jurisdiction over which is exclusively vested in the Commission on Elections (COMELEC). It is additionally averred that the action is completely baseless, that the private respondent is not a real party in interest and that the public respondent acted with undue haste, manifest partiality and evident bias in favor of the private respondent in issuing the TRO.chanroblesvirtualawlibrarychanrobles virtual law library In Our Resolution of 20 April 1992, We required the respondents to comment on the petition and issued a Temporary Restraining Order directing the respondent Judge to cease and desist from implementing and enforcing the challenged Order of 10 April 1922, and from continuing with the proceedings in Special Civil Action No. 465.chanroblesvirtualawlibrarychanrobles virtual law library At the time of the filing of both the special civil action and the instant petition, petitioner Antonio Gallardo was the incumbent Governor of the Province of Camiguin and was seeking re-election in the 11 May 1992 synchronized elections. Petitioners Antonio Arevalo, Cresencio

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Echaves, Emmanuel Aranas and Palermo Sia are the provincial treasurer, provincial auditor, provincial engineer and provincial budget officer of Camiguin, respectively. Their co-petitioners Ronnie Rambuyon, Primo Navarro and Noel Navarro are all government project laborers. On the other hand, the private respondent was the incumbent Congressman of the lone Congressional District of Camiguin, a candidate for the same office in the said synchronized elections and the Regional Chairman of the Laban ng Demokratikong Pilipino (LDP) in Region X.chanroblesvirtualawlibrarychanrobles virtual law library The antecedents of this case are not complicated.chanroblesvirtualawlibrarychanrobles virtual law library On 10 April 1992, private respondent filed his Petition 1(Special Civil Action No. 465) before the courta quo against petitioners Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and restrain them from pursuing or prosecuting certain public works projects; from releasing, disbursing and/or spending any public funds for such projects; and from issuing, using or availing of treasury warrants or any device for the future delivery of money, goods and other things of value chargeable against public funds in connection with the said projects as (1) said projects were undertaken in violation of the 45-day ban on public works imposed by the Omnibus Election Code (Batas Pambansa Blg. 881) because although they were initiated a few days before 27 March 1992, the date the ban took effect, they were not covered by detailed engineering plans, specifications or a program of work which are preconditions for the commencement of any public works project; hence, they could not have been lawfully and validly undertaken; (2) the hiring of hundreds of laborers in the different projects continues unabated in flagrant violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code; (3) the projects were undertaken in violation of the provisions of the Local Government Code 2 governing the use and expenditure of the twenty percent (20%) development fund of the Province of Camiguin; (4) these projects, which are "Locally-Funded", were pursued without the requisite approval of the provincial budget by the Regional Office of Budget and Management as required by Section 326 of the Local Government Code; (5) some of the projects which are "Foreign-Assisted" and funded by the Spanish Assistance for Integrated Livelihood Program (SAIL) lack the required building permits and are without any relevance to those livelihood projects envisioned by the SAIL; and (6) more importantly, as alleged in paragraph VII of his Petition: 3 . . . the illegal prosecution of these public work projects requiring massive outlay of public funds during this election period has been and is being done maliciously and intentionally for the purpose of corrupting the voters and inducing them to support the candidacy of Respondent Gallardo and his candidates in the coming May 11, 1992 election. In support of his prayer for a restraining order to be issued upon the filing of the petition and a writ of preliminary injunction immediately thereafter, herein private respondent alleges in paragraph XV of his Petition: That unless the illegal acts of Respondents are enjoined or restrained immediately first by the issuance of the restraining order upon the filing of this Petition and immediately after that a Writ of Preliminary Injunction, great or irreparable loss and injury shall be caused not only to Petitioner himself, as a candidate and as a taxpayer, but also to the entire LDP slate of candidates, whose supporters are being corrupted and illegally induced to vote for Respondent Antonio A. Gallardo and his candidates in consideration of their employment in these projects, Page 257 of 492

but (sic) most of all the greatest and most irreparable loss, damage and injury, in terms of wanton, irresponsible, excessive, abusive and flagrant waste of public money, is now being caused and shall continue to be caused, primarily and principally to the sixty-thousand or more taxpayers of the Province of Camiguin, whom Petitioner represents as Congressman and whose interests Petitioner is sworn to uphold, promote and protect. 4chanrobles virtual law library The questioned projects are classified into two (2) categories: (a ) those that are LocallyFunded, consisting of twenty-nine (29) different projects for the maintenance or concreting of various roads, the rehabilitation of the Katibawasan Falls and the construction of the Capitol Building, and (b) those designated as Foreign-Assisted, consisting of fifteen (15) projects which include the construction of the Human Resource Development Center, various Day Care cum Production Centers and waterworks systems; the extension and renovation of various buildings; the acquisition of hospital and laboratory equipment; and the rehabilitation of office and equipment. 5chanrobles virtual law library On the same day that the private respondent filed his petition, public respondent Judge issued the questioned TRO, 6 the pertinent portion of which reads: It appearing from the verified petition in this case that great and irreparable damage and/or injury shall be caused to the petitioner as candidate and taxpayer, such damage and injury taking the form and shape occasioned by the alleged wanton, excessive, abusive and flagrant waste of public money, before the matter can be heard on notice, the respondents are hereby Temporarily Restrained from pursuing or prosecuting the projects itemized in Annexes "A" and "A-1" of the petition; from releasing, disbursing and/or spending any public funds for such projects; from issuing, using or availing of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds in connection with said projects. (Emphasis supplied). In the same order, the public respondent directed the petitioners to file their Answer within ten (10) days from receipt of notice and set the hearing on the application for the issuance of the writ of preliminary injunction for 24 April 1992. Instead of filing the Answer, the petitioners filed the instant special civil action for certiorari and prohibition, with a prayer for a writ of preliminary injunction and/or temporary restraining order, alleging as grounds therefor the following: Ichanrobles virtual law library PUBLIC RESPONDENT HAS NO JURISDICTION OVER SPECIAL CIVIL ACTION NO. 465, BEING (sic) A SUIT INTENDED TO ENJOIN AN ALLEGED VIOLATION OF THE OMNIBUS ELECTION CODE. IIchanrobles virtual law library REGIONAL TRIAL COURT'S JURISDICTION IS LIMITED TO CRIMINAL ACTIONS FOR VIOLATION OF THE OMNIBUS ELECTION CODE. IIIchanrobles virtual law library

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THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF COMPLAINTS/PETITION BASED ON ELECTION OFFENSES PRIOR TO THE CONDUCT OF PRELIMINARY INVESTIGATION BY THE COMMISSION ON ELECTIONS; FURTHER, PRIVATE RESPONDENT HAS NO RIGHT TO FILE SPECIAL CIVIL ACTION NO. 465 SINCE THE AUTHORITY TO PROSECUTE ELECTION OFFENSES BELONGS TO THE COMMISSION ON ELECTIONS. IVchanrobles virtual law library PRIVATE RESPONDENT FAILED TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES Vchanrobles virtual law library THE PETITION DATED 09 APRIL 1992 FILED WITH PUBLIC RESPONDENT IS COMPLETELY BASELESS SINCE: A. THE PUBLIC WORKS PROJECTS BEING UNDERTAKEN BY PETITIONERS ARE EXEMPTED FROM THE PUBLIC WORKS BAN ENFORCED BY THE COMELEC.chanroblesvirtualawlibrarychanrobles virtual law library B. THE PUBLIC WORKS PROJECTS WERE COMMENCED ONLY AFTER APPROVAL OF THE DETAILED ENGINEERING PLANS AND SPECIFICATIONS AND PROGRAM OF WORK.chanroblesvirtualawlibrarychanrobles virtual law library C. THE PUBLIC WORKS PROJECTS WERE PROPERLY SUPPORTED BY A BUDGET DULY PASSED AND APPROVED BY THE SANGGUNIANG PANLALAWIGAN.chanroblesvirtualawlibrarychanrobles virtual law library D. THE DEVELOPMENT FUND MAY VALIDLY BE USED TO FINANCE THE MAINTENANCE OF PROVINCIAL ROADS. VI THE TAXPAYER'S SUIT FILED BY PRIVATE RESPONDENT IS IMPROPER SINCE HE IS NOT A REAL PARTY IN INTEREST. VIIchanrobles virtual law library THE PUBLIC RESPONDENT ACTED WITH UNDUE HASTE, MANIFEST PARTIALITY AND EVIDENT BIAS IN FAVOR OF PRIVATE RESPONDENT AND AGAINST PETITIONERS IN ISSUING THE TEMPORARY RESTRAINING ORDER. 7chanrobles virtual law library As adverted to earlier, We issued a Temporary Restraining Order on 20 April 1992.chanroblesvirtualawlibrarychanrobles virtual law library After considering the allegations, issues and arguments adduced in the Petition, the Comment thereto and the Reply to the Comment, We gave due course 8 to this Petition and required the parties to submit their respective Memoranda which they complied with.chanroblesvirtualawlibrarychanrobles virtual law library

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The main issue in this case is whether or not the trial court has jurisdiction over the subject matter of Special Civil Action No. 465. The material operative facts alleged in the petition therein inexorably link the private respondent's principal grievance to alleged violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code (Batas Pambansa Blg. 881). There is particular emphasis on the last two (2) paragraphs which read: Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:chanrobles virtual law library (a) Vote-buying and vote-selling. xxx xxx xxxchanrobles virtual law library (b) Conspiracy to bribe voters. xxx xxx xxxchanrobles virtual law library (v) Prohibition against release, disbursement or expenditure of public funds. Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for:chanrobles virtual law library (1) Any and all kinds of public works, except the following: xxx xxx xxxchanrobles virtual law library (w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. - During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds. Private respondent likewise focuses on Resolution No. 2332 (not 2322 as erroneously stated in page 10 of his Petition) of the COMELEC, promulgated on 2 January 1992, implementing the aforesaid paragraphs (v) and (w) of Section 261 and fixing the duration of the 45-day ban for purposes of the synchronized elections from 27 March 1992 to 11 May 1922.chanroblesvirtualawlibrarychanrobles virtual law library Essentially, therefore, Civil Case No. 465 before the trial court is for the enforcement of laws involving the conduct of elections; corollarily, the issue that is logically provoked is whether or not the trial court has jurisdiction over the same. If the respondent Judge had only hearkened to this Court's teaching about a quarter of a century earlier, this case would not have reached Us and taken away from more deserving cases so much precious time.

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Zaldivar vs. Estenzo, 9 decided by this Court on 3 May 1968, had squarely resolved the issue above posed. Speaking through then Associate Justice Enrique Fernando (who later became Chief Justice), this Court explicitly ruled that considering that the Commission on Elections is vested by the Constitution with exclusive charge of the enforcement and administration of all laws relative to the conduct of elections, the assumption of jurisdiction by the trial court over a case involving the enforcement of the Election Code "is at war with the plain constitutional command, the implementing statutory provisions, and the hospitable scope afforded such grant of authority so clear and unmistakable in recent decisions." 10chanrobles virtual law library Said case was decided under the aegis of the 1935 Constitution and R.A. No. 180, otherwise known as the Revised Election Code, which took effect on 21 June 1947. The present Constitution and extant election laws have further strengthened the foundation for the above doctrine; there can be no doubt that the present COMELEC has broader powers than its predecessors. While under the 1935 Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the conduct of elections," exercised "all other functions . . . conferred upon it by law" 11 and had the power to deputize all law enforcement agencies and instrumentalities of the Government for the purpose of insuring free, orderly and honest elections, 12 and under the 1973 Constitution it had, inter alia, the power (a) "[E]nforce and administer all laws relative to the conduct of elections" 13 (b) "[D]eputize, with the consent or at the instance of the Prime Minister, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose of ensuring free, orderly, and honest elections," 14 and (c) "[P]erform such other functions as may be provided by law," 15 it was not expressly vested with the power to promulgate regulations relative to the conduct of an election. That power could only originate from a special law enacted by Congress; this is the necessary implication of the above constitutional provision authorizing the Commission to "[P]erform such other functions as may be provided by law."chanrobles virtual law library The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The pertinent portion of Section 2 of Article IX-C thereof reads as follows: Sec. 2. The Commission on Elections shall exercise the following powers and functions:chanrobles virtual law library (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (Emphasis supplied). xxx xxx xxx The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present Constitution took into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which was already in force when the said Constitution was drafted and ratified, to: xxx xxx xxxchanrobles virtual law library

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Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer, . . . . 16 Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission broader and more flexible powers to effectively perform its duties and to insulate it further from legislative intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions a truly independent Commission on Elections committed to ensure free, orderly, honest, peaceful and credible elections, 17 and to serve as the guardian of the people's sacred right of suffrage - the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability. Additionally, by statutory mandate, the present Commission on Elections possesses, inter alia, the following powers: l) Exercise direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. In addition, it may authorize CMT cadets eighteen years of age and above to act as its deputies for the purpose of enforcing its orders.chanroblesvirtualawlibrarychanrobles virtual law library The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of his duties relating to electoral processes who violates the election law or fails to comply with its instructions, orders, decisions or rulings, and appoint his substitute. Upon recommendation of the Commission, the corresponding proper authority shall suspend or remove from office any or all of such officers or employees who may, after due process, be found guilty of such violation or failure. 18 2) To stop any illegal election activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. 19chanrobles virtual law library Needless to say, the acts sought to be restrained in Special Civil Action No. 465 before the court a quo are matters falling within the exclusive jurisdiction of the Commission. As a matter of fact, the specific allegations in the petition therein of violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code provide a stronger basis and reason for the application of theZaldivar doctrine. At most, the facts in the latter case do not illustrate as clearly the announced doctrine as the facts in this case do. In Zaldivar, no specific provision of the Revised Election Code then in force was alleged to have been violated. What was sought to be enjoined was the alleged wielding by Zaldivar, then a municipal mayor, of the power, by virtue of his office, to appoint special policemen or agents to terrorize voters into supporting the congressional candidate of his choice. In holding that the then Court of First Instance did not have jurisdiction over the case, this Court considered the constitutional power of the Commission on Elections to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and to exercise all other functions which may be conferred by law. We likewise relied on the provisions of the Revised Election Code vesting upon the COMELEC (a) direct and immediate supervision over municipal, city and provincial officials designated by law to perform duties relative to the conduct of elections and (b) Page 262 of 492

authority to suspend them from the performance of such duties for failure to comply with its instructions, orders, decisions or rulings and recommend to the President their removal if found guilty of non-feasance, malfeasance or misfeasance in connection with the performance of their duties relative to the conduct of elections. 20chanrobles virtual law library Under the present law, however, except in case of urgent need, the appointment or hiring of new employees or the creation or filling up of new positions in any government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, is banned during the period of forty-five (45) days before a regular election and thirty (30) days before a special election if made without the prior authority of the Commission on Elections. A violation thereof constitutes an election offense. 21 Then too, no less than the present Constitution - and not just the Election Law as was the case at the time of Zaldivar expressly provides that the Commission may "[R]ecommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision." 22chanrobles virtual law library Moreover, the present Constitution also invests the Commission with the power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." 23chanrobles virtual law library It may thus be said without fear of contradiction that this vast array of powers and functions now enjoyed by the Commission under the present Constitution provides a stronger foundation for, and adds vigor and vitality to, the Zaldivar doctrine.chanroblesvirtualawlibrarychanrobles virtual law library The rationale of the said doctrine needs to be stressed here so that henceforth, no judge will lose his bearings when confronted with the same issue. Otherwise, he should be held to account for either the sheer ignorance of the law or the callous disregard of pronouncements by this Court to accommodate partisan political feelings. We declared in the said case: The question may be asked: Why should not the judiciary be a co-participant in this particular instance of enforcing the Election Code as its authority was invoked? The obvious answer is the literal language of the Constitution which empowers the Commission on Elections to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of the elections." Moreover, as was so aptly observed by the then Justice Frankfurter, although the situation confronting the United States Supreme Court was of a different character: "Nothing is clearer than that this controversy concerns matters that brings courts into immediate and active relations with party contests. From the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law." 24 Then, too, reference by analogy may be made to the principle that sustains Albano v. Arranz. For even without the express constitutional prescription that only this Court may review the decisions, orders and rulings of the Commission on Elections, it is easy to understand why no inference whatsoever with the performance of the Commission on Elections of its functions should be allowed unless emanating from this Court. The observation of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz, 25 while not precisely in point, Page 263 of 492

indicates the proper approach. Thus: "It is easy to realize the chaos that would ensue if the Court of First Instance of each and every province were to arrogate unto itself the power to disregard, suspend, or contradict any order of the Commission on Elections; that constitutional body would be speedily reduced to impotence."chanrobles virtual law library This conclusion finds' support from a consideration of weight and influence. What happened in this case could be repeated elsewhere. It is not improbable that courts of first instance would be resorted to by leaders of candidates or political factions entertaining the belief whether rightly or wrongly that local officials would employ all the power at their command to assure the victory of their candidates. Even if greater care and circumspection, than did exist in this case, would be employed by judges thus appealed to, it is not unlikely that the shadow of suspicion as to alleged partisanship would fall on their actuations, whichever way the matter before them is decided. It is imperative that the faith in the impartiality of the judiciary be preserved unimpaired. Whenever, therefore, the fear may be plausibly entertained that an assumption of jurisdiction would lead to a lessening of the undiminished trust that should be reposed in the courts and the absence of authority discernible the from the wording of applicable statutory provisions and the trend of judicial decisions, even if no constitutional mandate as that present in this case could be relied upon, there should be no hesitancy in declining to act. 26chanrobles virtual law library The foregoing disquisitions should have rendered unnecessary the resolution of the remaining collateral issues raised in this petition. In view, however, of their importance, they will be dealt with in a general way.chanroblesvirtualawlibrarychanrobles virtual law library It is not true that, as contended by the petitioners, the jurisdiction of the Regional Trial Court under the election laws is limited to criminal actions for violations of the Omnibus Election Code. The Constitution itself grants to it exclusive original jurisdiction over contests involving elective municipal officials. 27 Neither can We agree with the petitioners' assertion that the Special Civil Action filed in the court below involves the prosecution of election offenses; the said action seeks some reliefs incident to or in connection with alleged election offenses; specifically, what is sought is the prevention of the further commission of these offenses which, by their alleged nature, are continuing.chanroblesvirtualawlibrarychanrobles virtual law library There is as well no merit in the petitioners' claim that the private respondent has no legal standing to initiate the filing of a complaint for a violation of the Omnibus Election Code. There is nothing in the law to prevent any citizen from exposing the commission of an election offense and from filing a complaint in connection therewith. On the contrary, under the COMELEC Rules of Procedure, initiation of complaints for election offenses may be done motu propio by the Commission on Elections or upon written complaint by any citizen, candidate or registered political party or organization under the party-list system or any of the accredited citizens arms of the Commission. 28 However, such written complaints should be filed with the "Law Department of the Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal." 29 As earlier intimated, the private respondent was not seriously concerned with the criminal aspect of his alleged grievances. He merely sought a stoppage of the public works projects because of their alleged adverse effect on his candidacy. Indeed, while he may have had reason to fear and may have even done the right thing, he committed a serious

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procedural misstep and invoked the wrong authority.chanroblesvirtualawlibrarychanrobles virtual law library We have, therefore, no alternative but to grant this petition on the basis Our resolution of the principal issue. Nevertheless, it must be strongly emphasized that in so holding that the trial court has no jurisdiction over the subject matter of Special Civil Action No. 465, We are not to be understood as approving of the acts complained of by the private respondent. If his charges for the violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code are true, then no one should be spared from the full force of the law. No government official should flout laws designed to ensure the holding of free, orderly, honest, peaceful and credible elections or make a mockery of our electoral processes. The bitter lessons of the past have shown that only elections of that nature or character can guarantee a peaceful and orderly change. It is then his duty to respect, preserve and enhance an institution which is vital in any democratic society.chanroblesvirtualawlibrarychanrobles virtual law library WHEREFORE, the instant Petition is hereby GRANTED. The challenged order of respondent Judge of 10 April 1992 in Special Civil Action No. 465 is SET ASIDE and said Civil Case is hereby ordered DISMISSED, without prejudice on the part of the private respondent to file, if he is so minded, the appropriate complaint for an election offense pursuant to the COMELEC Rules of Procedure.chanroblesvirtualawlibrarychanrobles virtual law library Costs against the private respondent.chanroblesvirtualawlibrarychanrobles virtual law library SO ORDERED. Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur. chanrobles virtual law library chanrobles virtual law library Separate Opinions CRUZ, J., concurring and dissenting:chanrobles virtual law library I concur but, regretfully, not with the statement that the Commission on Elections now derives the power to promulgate resolutions directly from Article IX-C, Section 2(l) of the Constitution, to wit: Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (Emphasis supplied) xxx xxx xxx

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With all due respect, I submit that what the COMELEC is authorized to do under that provision is only to "enforce and administer" such laws and regulations, not to promulgate them. The addition of the word "regulations" in the new subsection does not empower it now to promulgate regulations any more than it can promulgate laws. As I read it, all that the change imports is that the scope of the measures the COMELEC may enforce and administer has been expressly widened, to include "regulations."chanrobles virtual law library Regulations are mainly intended to implement or supplement a law and may be generally issued only pursuant to a valid delegation of legislative power. That is why they are known as "subordinate legislation." In the case of the COMELEC, I see no constitutional vesture in it of the power to promulgate regulations, much less laws. There does not seem to be even an "implicit" grant of that authority, as the ponencia suggests. Narvasa, C.J., and Gutierrez, Jr., J., concur. Separate Opinions CRUZ, J., concurring and dissenting:chanrobles virtual law library I concur but, regretfully, not with the statement that the Commission on Elections now derives the power to promulgate resolutions directly from Article IX-C, Section 2(l) of the Constitution, to wit: Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (Emphasis supplied) xxx xxx xxx With all due respect, I submit that what the COMELEC is authorized to do under that provision is only to "enforce and administer" such laws and regulations, not to promulgate them. The addition of the word "regulations" in the new subsection does not empower it now to promulgate regulations any more than it can promulgate laws. As I read it, all that the change imports is that the scope of the measures the COMELEC may enforce and administer has been expressly widened, to include "regulations."chanrobles virtual law library Regulations are mainly intended to implement or supplement a law and may be generally issued only pursuant to a valid delegation of legislative power. That is why they are known as "subordinate legislation." In the case of the COMELEC, I see no constitutional vesture in it of the power to promulgate regulations, much less laws. There does not seem to be even an "implicit" grant of that authority, as the ponencia suggests. Narvasa, C. J., and Gutierrez, Jr., J., concur. Endnotes:

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1 Annex "D" of Petition; Rollo, 45-59.chanrobles virtual law library 2 R.A. No. 7160.chanrobles virtual law library 3 Rollo, 49.chanrobles virtual law library 4 Rollo, 54.chanrobles virtual law library 5 Annexes "A" and "A-1" of Petition in Special Civil Action No. 465; Id., 60-61 6 Rollo, 39.chanrobles virtual law library 7 Rollo, 10-12.chanrobles virtual law library 8 Id., 134.chanrobles virtual law library 9 23 SCRA 533 [1968].chanrobles virtual law library 10 At page 534.chanrobles virtual law library 11 Section 2, Article X.chanrobles virtual law library 12 Third sentence, Id.chanrobles virtual law library 13 Section 2(1), Article XII-C.chanrobles virtual law library 14 Section 2(4), Id.chanrobles virtual law library 15 Section 2(8), Id.chanrobles virtual law library 1j6 Section 52(c), Article VII, Omnibus Election Code.chanrobles virtual law library 17 Section 2(4), Article IX-C, 1987 Constitution.chanrobles virtual law library 18 Section 52(a), Article VII, Omnibus Election Code.chanrobles virtual law library 19 Section 57(2), Id.chanrobles virtual law library 20 Section 3, R. Ra. No. 180.chanrobles virtual law library 21 Section 261(g), Omnibus Election Code.chanrobles virtual law library 22 Section 2(8), Article IX-C.chanrobles virtual law library 23 Section 2(6), Id. 24 Citing Colegrove vs. Green, 328 U.S. 549, 553-554 [1946].chanrobles virtual law library

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25 G.R. No. L-19260, 31 January 1962, 4 SCRA 386.chanrobles virtual law library 26 At pages 540-541.chanrobles virtual law library 27 Section 2(2), Article IX-C of the 1987 Constitution and Section 251 of the Omnibus Election Code. Also under the former section, courts of limited jurisdiction (Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts) have exclusive original jurisdiction over contests involving elective barangay officials. These courts likewise have jurisdiction in inclusion and exclusion cases (Section 138, Omnibus Election Code).chanrobles virtual law library 28 Section 3, Rule 34, COMELEC Rules of Procedure.chanrobles virtual law library 29 Section 4, Id.

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EN BANC [G.R. NO. 161265. February 24, 2004] LABAN NG DEMOKRATIKONG PILIPINO,represented by its Chairman EDGARDO J. ANGARAv.THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO DECISION TINGA, J.: The Bible tells the story of how two women came to King Solomon to decide whoamong them is the babys true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two. It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the babys fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case. On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the partys official candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on indefinite forced leave. In the meantime, Ambassador Enrique A. Zaldivar was designated Acting Secretary General. The Manifestationconcluded with this prayer:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ A.The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel. B.The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him. C.The Honorable Commission takes [sic] note of the designation of Ambassador Enrique Ike A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of the LDP as Secretary General.1 ςrνll On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose disciplinary sanctions on the Secretary General. As the Manifestationfiled by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same.

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On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed anUrgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received a Letter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation. The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman. On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days before, Sen. Angara had submitted a verified Petition , in essence,reiterating the contents of its previous Manifestations. Attached to the Petition was a Resolution2 adopted by the LDP National Executive Council, stating:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10, 2004 elections;chanroblesvirtuallawlibrary WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino (KNP);chanroblesvirtuallawlibrary WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections;chanroblesvirtuallawlibrary .. .. WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition;chanroblesvirtuallawlibrary WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confidence in Chairman

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Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same;chanroblesvirtuallawlibrary RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and, RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of Chairman Angara to unite the political opposition.3 ςrνll Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same day, after which the case was submitted for resolution. Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General. On January 6, 2004, the COMELEC came to a decision. The Commission identified the sole issue as who among the [LDP] officers [are] authorized to authenticate before the Commission that the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in accordance with its Constitution.4 ςrνll The COMELEC recognized that it has the authority to act on matters pertaining to the ascertainment of the identity of [a] political party and its legitimate officers.5 In the same breath, however, it held that internal party matters and wranglings [sic] are purely for the party members to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction. The question of who was suspended by whom was thus left for such proper forum to resolve.6 Noting that the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the deadline, the COMELEC disposed of the Petition in the following fashion:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP Angara Wing. The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito Butz Aquino are recognized as official candidates of LDP Aquino Wing.

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Consequently, each faction or Wing is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections.For the copies of the election returns, the Angara Wing will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the Aquino Wing to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP Wings are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.7 ςrνll Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions. Sen. Angara thus filed the present petition for Certiorari8 assailing the COMELEC Resolution for having been issued with grave abuse of discretion. Thereafter, Rep. Aquino filed his Comment. The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition . The COMELEC thus filed a separate Comment to the Petition. The COMELEC correctly stated that the ascertainment of the identity of [a] political party and its legitimate officers is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and regulations relative to the conduct of an election.9 In the exercise of such power and in the discharge of such function, the Commission is endowed with ample wherewithal and considerable latitude in adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections.10 ςrνll Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, 11this Court held:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw from usurping or using the title or position of President of the Liberal Party] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of

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such controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party. [Emphasis supplied.] Likewise in Palmares v. Commission on Elections,12 to which the assailed Resolution made reference and which involved the Nacionalista Party,13 this Court ruled that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties. This Court then proceeded to quote from Kalaw, supra. The two cited decisions find support in Sumulong v. Commission on Elections14 and Sotto v. Commission on Elections,15 where this Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily settled claims to the partys leadership. Both cases were decided without question on the COMELECs power to determine such claims. In conformity with jurisprudence, this Court did not identify the COMELECs jurisdiction as an issue when this case was heard on oral argument. There is no inconsistency between the above cases on the one hand and this Courts more recent ruling in Sinaca v. Mula16 on the other. In the latter case, this Court held:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the partys ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the courts [sic] jurisdiction. Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in such manner as party rules may establish. [Emphasis supplied.] Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political partys sole candidate.

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In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not. The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of candidacy of persons claiming to be the partys standard bearer. The law grants a registered political party certain rights and privileges,17 which, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not applicable in this case.As conceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies within a political party where a controlling statute or clear legal right is involved.18Verily, there is more than one law, as well as a number of clear legal rights, that are at stake in the case at bar. The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by the COMELEC, for instance, is entitled to a copy of the election returns.19 The six (6) accredited major political parties may nominate the principal watchers to be designated by the Commission.20 The two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.21 Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass.22 Registered political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof.23 Finally, a candidate and his political party are authorized to spend more per voter than a candidate without a political party.24 ςrνll It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of the party. Corollary to the right of a political party to identify the people who constitute the association and to select a standard bearer who best represents the partys ideologies and preference25 is the right to exclude persons in its association and to not lend its name and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that the person therein mentioned has been nominated by a duly authorized political group empowered to act and that it reflects accurately the sentiment of the nominating body.26 A candidates political party affiliation is also printed followed by his or her name in the certified list of candidates.27 A candidate misrepresenting himself or herself to be a partys candidate, therefore, not only misappropriates the partys name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he or she stands for the partys principles. To prevent this occurrence, the COMELEC has the power and the duty to step in and enforce the law not only to protect the party but, more importantly, the electorate, in line with the Commissions broad constitutional mandate to ensure orderly elections. Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its enforcement powers, this Court cannot help but be Page 274 of 492

baffled by the COMELECs ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the partys nominees. The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has the authority to sign certificates of candidacy of the official candidates of the party. Indeed, the petitioners Manifestation and Petition before the COMELEC merely asked the Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara or his authorized representative, and no other. To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers. The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.28 The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ (1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the presiding officer of the National Congress and the National Executive Council.29 ςrνll The Secretary General, on the other hand, assists the Party Chairman in overseeing the dayto-day operations of the Party. Among his powers and functions is:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ (1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party.30 ςrνll The Secretary Generals authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairman. Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates of candidacy in the previous elections. Indeed, the COMELEC found that:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ In fact, during the May 14, 2001 elections, oppositor Agapito Butz Aquino, as LDP Secretary General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and By-laws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by the National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively.31 ςrνll Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELECs finding that the same has not been revoked or recalled. No revocation of such authority can be more explicit than the totality of Sen. Angaras Manifestations and Petition

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before the COMELEC, through which he informed the Commission that Rep. Aquinos had been placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who shall henceforth exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP.32 As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power. Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 645333as basis for the Party Secretary Generals authority to sign certificates of candidacy. Said Section 6 states:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ SEC. 6. Certificate of nomination of official candidates by political party. The certificate of nomination of registered political parties or coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any other duly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscoring supplied.] Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been duly authorized by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants, lest such Resolution amount to a violation of the partys freedom of association. Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the governing bodies of the Party.34 In particular, the National Congress, which is the highest policy-making and governing body of the Party, has the power (6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional district, provincial and regional elective offices.35 ςrνll Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen. Angara that power on account of the latters preventive suspension. It seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the matter. In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and submits its final recommendations.

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The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which enumerates the powers and functions of the Secretary General:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ (4) With the concurrence of the Party Chairman, to enforce Party discipline. {Emphasis supplied.] Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairmans concurrence.Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since its authority stems from a nullity. Simply put, the spring has no source. The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP would not result in the denial of due course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP.36 The exclusive ground for the denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation contained therein as required by law is false.37 Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a registered political party or its duly authorized representative, or whose nomination has not been submitted by a registered political party shall be considered as an independent candidate. COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom so sorely wanting in the majority opinion in his suggestion that:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by election laws for official nominees of registered political parties.Instead, they shall be treated as independent candidates.38 ςrνll From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available only in the absence of law and not as its replacement.39 Equity is described as justice without legality, which simply means that it cannot supplant, although it may, as often happens, supplement the law.40 The COMELEC should have decided the case on the basis of the party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on unchartered territories.41 But, as shown above, these territories have long been charted by jurisprudence

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and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity. Worse, the COMELEC divided the LDP into wings, each of which may nominate candidates for every elective position.Both wings are also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino wing. By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably emasculated its chance of obtaining the Commissions nod as the dominant minority party. By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections ,42 this Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC. By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase Justice Perfectos concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and representation to a minority party is precisely to serve as an effective check on the majority.The COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party. By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings.The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed,43 or when they appear to be tampered or falsified.44 A split party without a complete set of election returns cannot successfully help preserve the sanctity of the ballot. It bears reminding respondent Commission of this Courts pronouncement in Peralta v. Commission on Elections,45 which, while made in the backdrop of a parliamentary form of government, holds equally true under the present government structure:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties perform an essential function in the management of succession to

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power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal. The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties. As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system.46 This policy, however, envisions a system that shall evolve according to the free choice of the people,47 not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two.For doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed. WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s. SO ORDERED. Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, CarpioMorales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., C.J., in the result. Puno, J., on leave. Vitug, J., please see separate opinion. Sandoval-Gutierrez, J., please see dissenting opinion. Corona, J., joins the dissenting opinion of J. Gutierrez. Endnotes:

1

Rollo, p. 58.

2

Resolution Ratifying and Confirming the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and All Acts and Decisions taken by him to Enforce and Implement the same; Ratifying and Confirming All other Acts and Decisions of Chairman Angara and other Governing Bodies to Preserve the Integrity, Credibility, Unity and Solidarity of the Party; and,

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further Reiterating the Vote of Confidence of the National Executive Council in, and support to, the continued efforts of Chairman Angara to Unite the Political Opposition. 3

Rollo, pp. 63-65.

4

Id., at 44.

5

Id., at 46.

6

Id., at 43.

7

Id., at 47-48. Emphasis in the original.

8

Sen. Angara was authorized to filed the Petition pursuant to a Resolution of the LDP National Executive Council issued adopted and confirmed on January 8, 2004, and stating:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ RESOLVED, That Senator Edgardo J. Angara, LDP Party Chairman, be as he is hereby, authorized to sign, verify, and cause the filing with the Supreme Court, of the Petition for Certiorari from the Resolution dated January 6, 2004 of the Commission on Elections in Election Matter No. 03-018 entitled: In Re[:] Certificates of Candidacy of Official Candidates of the Laban ng Demokratikong Pilipino for the May 10, 2004 Elections, Laban ng Demokratikong Pilipino, Petitioner. [Rollo, p. 38.] 9

Constitution,art. IX-C, sec. 2 (1).

10

Sanchez v. Commission on Elections, 199 Phil. 617 (1982), citing Cauton v. Comelec, L-25467, April 27, 1967, 19 SCRA 911 (1967). 11

G.R. No. 80218, November 5, 1987.

12

G.R. NOS. 86177-78, August 31, 1989.

13

Rollo, p. 46, at note 12.

14

70 Phil. 703 (1940).

15

76 Phil. 516 (1946).

16

373 Phil. 896 (1999).

17

Omnibus Election Code, sec. 60.

18

Note 13, supra.

19

Rep. Act No. 7166, sec. 27, as amended by Rep. Act No. 8173.

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20

Id ., sec. 26.

21

Rep. Act No. 6646, sec. 12.

22

Rep. Act. No. 7166, sec. 29.

23

Rep. Act No. 6646, sec. 8.

24

Rep. Act No. 7166, sec. 13.

25

Sinaca v. Mula, supra.

26

Alialy v. Commission on Elections, L-16165, July 31, 1961, 2 SCRA 957.

27

Rep. Act. No. 6646, sec. 4.

28

LDP Constitution, art. VI, sec. 1 (1) and (4).

29

Id ., sec. 5. Emphasis supplied.

30

Id ., sec. 9. Emphasis supplied.

31

Rollo, p. 45.

32

Id ., at 57, 85.

33

Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2004 National and Local Elections. 34

The governing bodies of the Party are: (1) the Municipal Committee, (2) the City Committee, (3) the Congressional District Committee, (4) the Provincial Committee, (5) the Regional Committee, for each region, including the National Capital Region and Autonomous Regions, and (6) the National Congress. [LDP Constitution, art. V, sec. 1.] The first four Committees and the Autonomous Region Regional Committee also act as conventions to choose the official candidates of the Party for the elective offices in their corresponding political units.[LDP Constitution, art. V, sec. 3(7), sec. 5 in relation to sec. 3(7), sec. 7 (2), sec. 9 (5) and sec. 13.] 35

LDP Constitution, art. V, sec. 1.

36

See Alialy v. Commission on Elections, supra.

37

Omnibus Election Code,sec. 78.

38

Rollo, p. 50.

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39

Tankiko v. Cezar, G.R. No. 131277, 362 Phil. 184 (1999), 302 SCRA 559.

40

Ibid .

41

Comment, p. 20.

42

G.R. No. 134293, June 21, 1999, 308 SCRA 793.

43

Omnibus Election Code, sec. 233.

44

Id ., sec. 235.

45

L-47771, March 11, 1978, 82 SCRA 30.

46

Comment, p. 6.

47

Constitution,art. IX-C, sec. 6.

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EN BANC [G.R. No. 108399. July 31, 1997.] RAFAEL M. ALUNAN III, in his capacity as Secretary of the Department of Interior and Local Government (DILG), the BOARD OF ELECTION SUPERVISORS composed of Atty. RUBEN M. RAMIREZ, Atty. RAFAELITO GARAYBLAS, and Atty. ENRIQUE C. ROA, GUILLERMINA RUSTIA, in her capacity as Director of the Barangay Bureau, City Treasurer Atty. ANTONIO ACEBEDO, Budget Officer EUFEMIA DOMINGUEZ, all of the City Government of Manila, Petitioners, v. ROBERT MIRASOL, NORMAN NOEL T. SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO, MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ, LOURDES ASENCIO, FERDINAND ROXAS, MA. ALBERTINA RICAFORT and BALAIS M. LOURICH and the HONORABLE WILFREDO D. REYES, Presiding Judge of the Regional Trial Court, Branch 36, Metro Manila, Respondents. The Solicitor General, for Petitioners. Pedro Q. Quadra for Private Respondents. SYNOPSIS The Local Government Code, which took effect on January 1, 1992, provides, in Section 532(a), that the first election for the Sangguniang Kabataan (SK) shall be held thirty days after the next local election. The first local election under the Code was held on May 11, 1992. Accordingly, the Commission on Elections issued Resolution No. 2499, providing guidelines for the holding of the general election for the SK on September 30, 1992. The guidelines placed the SK elections under the direct control and supervision of the DILG. The DILG, however, through then Secretary Rafael M. Alunan III, issued a letter-resolution exempting the City of Manila from holding election for the SK on the ground that the election previously held on May 26, 1990 was to be considered the first under the newly enacted Local Government Code. Private respondents filed a petition for certiorari and mandamus in the RTC of Manila to set aside the resolution of the DILG, arguing that the Secretary of the DILG had no power to amend the resolutions of the COMELEC calling for general elections of SKs and that the DILG resolution in question denied them the equal protection of the laws. Petitioners maintain that the Secretary of the DILG had authority to determine whether the City of Manila came within the exception clause of Section 532(d) so as to be exempt from holding the election on December 4, 1992. COMELEC’s placing the SK election under the direct control and supervision of the DILG did not contravene Art. IX, C, Sec. 2(1) of the Constitution which provides that the COMELEC shall have the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall."

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Elections for SK officers are not subject to the supervision of the COMELEC in the same way that contests involving elections of SK officials do not fall within the jurisdiction of the COMELEC. Section 532(d) may thus be deemed to be a curative law. Curative laws, which in essence are retrospective in effect, are enacted to validate acts done which otherwise would be invalid under existing laws, by considering them as having complied with the existing laws. Such laws are recognized in this jurisdiction. The decision of the RTC of Manila, Branch 36, is REVERSED. SYLLABUS 1. REMEDIAL LAW; ACTIONS; MOOT AND ACADEMIC; RESOLUTION OF ISSUE STILL PROPER WHERE IT IS CAPABLE OF REPETITION, YET EVADING REVIEW. — The preliminary question is whether the holding of the second elections on May 13, 1996 rendered this case moot and academic. There are two questions raised in this case. The first is whether the Secretary of Interior and Local Government can "exempt" a local government unit from holding elections for SK officers on December 4, 1992 and the second is whether the COMELEC can provide that "the Department of Interior and Local Government shall have direct control and supervision over the election of sangguniang kabataan with the technical assistance by the Commission on Elections." We hold that this case is not moot and that it is in fact necessary to decide the issues raised by the parties. For one thing, doubt may be cast on the validity of the acts of those elected in the May 26, 1990 KB elections in Manila because this Court enjoined the enforcement of the decision of the trial court and these officers continued in office until May 13, 1996. For another, this case comes within the rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review." For the question whether the COMELEC can validly vest in the DILG the control and supervision of SK elections is likely to arise in connection with every SK election and yet the question may not be decided before the date of such elections. 2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; RESOLUTION NO. 2499 PLACING SANGGUNIANG KABATAAN ELECTIONS UNDER DIRECT CONTROL AND SUPERVISION OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, CONSTITUTIONAL; CONTESTS INVOLVING ELECTIONS OF SANGGUNIANG OFFICIALS DO NOT FALL WITHIN COMMISSION ON ELECTIONS JURISDICTION. — As already stated, by §4 of Resolution No. 2499, the COMELEC placed the SK elections under the direct control and supervision of the DILG. Contrary to respondents’ contention, this did not contravene Art. IX, C §2(1) of the Constitution which provides that the COMELEC shall have the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite initiative, referendum, and recall." Elections for SK officers are not subject to the supervision of the COMELEC in the same way that, as we have recently held, contests involving elections of SK officials do not fall within the jurisdiction of the COMELEC. 3. ID.; ID.; ID.; ID.; SANGGUNIANG KABATAAN CHAIRMAN NOT AN ELECTED BARANGAY OFFICIAL. — Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article IX-C of the Constitution on the COMELEC’s exclusive appellate jurisdiction

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over contests involving elective barangay officials refer to the elective barangay officials under the pertinent laws in force at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local Government Code, and the elective barangay officials referred to were the punong barangay and the six sangguniang bayan members. In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly KB) officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in effect prior to the ratification of the Constitution had made the SK chairman an elective barangay official. His being an ex-officio member of the sangguniang barangay does not make him one for the law specifically provides who are its elective members. 4. ID.; ID.; ID.; INCLUSION OF BARANGAYS IN SANGGUNIANG KABATAAN ELECTIONS, TO BE DETERMINED BY DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT. — It is contended that, in its resolution in question, the COMELEC did not name the barangays which, because they had conducted kabataang barangay elections between January 1, 1988 and January 1, 1992, were not included in the SK elections to be held on December 4, 1992. That these barangays were precisely to be determined by the DILG is, however, fairly inferable from the authority given to the DILG to supervise the conduct of the elections. Since §532(d) provided for kabataang barangay officials whose term of office was extended beyond 1992, the authority to supervise the conduct of elections in that year must necessarily be deemed to include the authority to determine which kabataang barangay would not be included in the 1992 elections. The authority granted was nothing more than the ascertainment of a fact, namely, whether between January 1, 1988 and January 1, 1992 elections had been held in a given kabataang barangay. If elections had been conducted, then no new elections had to be held on December 4, 1992 since by virtue of §532(d) the term of office of the kabataang barangay officials so elected was "extended correspondingly to coincide with the term of office of those elected under [the Local Government Code of 1991]." In doing this, the Secretary of Interior and Local Government was to act merely as the agent of the legislative department, to determine and declare the event upon which its expressed will was to take effect. There was no undue delegation of legislative power but only of the discretion as to the execution of a law. That this is constitutionally permissible is the teaching of our cases. 5. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; SECTION 532 (d) PROVIDING THAT THE KABATAANG BARANGAY ELECTIONS CONDUCTED BETWEEN JANUARY 1, 1988 AND JANUARY 1, 1992 SHALL BE CONSIDERED AS THE FIRST ELECTIONS PROVIDED FOR IN THIS CODE, LEGAL AND BINDING, A CURATIVE LAW. — Petitioners sought this review on certiorari. They insist that the City of Manila, having already conducted elections for the KB on May 26, 1990, was exempted from holding elections on December 4, 1992. In support of their contention, they cite §532(d) of the Local Government Code of 1991, which provides that: ". . . elections for the kabataang barangay conducted under Batas Pambansa Blg. 337 at any time between January 1, 1988 and January 1, 1992 shall be considered as the first elections provided for in this Code. The term of office of the kabataang barangay officials elected within the said period shall be extended correspondingly to coincide with the term of office of those elected under this Code." It was precisely to foreclose any question regarding the validity of KB elections held in the aftermath of the EDSA revolution and upon the effectivity of the new Local Government Code that the exception clause of §532(d) was inserted. Section §532(d) may thus be deemed to be a curative law. Curative laws, which in essence are retrospective in effect, are enacted to validate acts done which otherwise would be invalid under existing laws, by considering them as having complied with the existing laws. Such laws are recognized in

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this jurisdiction. 6. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; EXEMPTION OF BARANGAYS IN MANILA FROM HOLDING ELECTION, NOT DISCRIMINATION. — It is finally contended that the exemption of the barangays of the City of Manila from the requirement to hold elections for SK officers on December 4, 1992 would deny the youth voters in those barangays of the equal protection of laws. Respondents claim that only in the barangays in the City of Manila, which then numbered 897, were elections for SK not held in 1992 on the ground that between January 1, 1988 and January 1, 1992 there had already been SK elections held, when, according to petitioners own evidence, during that period, SK elections had actually been conducted in 5,000 barangays. Whether this claim is true cannot be ascertained from the records of this case. Merely showing that there were 5,000 barangays which similarly held KB elections between January 1, 1988 and January 1, 1992 does not prove that despite that fact these same barangays were permitted to hold elections on December 4, 1992. For one thing, according to the Manila Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the Province of Bulacan did not have SK elections on December 4, 1992 either, because they already had elections between January 1, 1988 and January 1, 1992. For another, even assuming that only barangays in Manila were not permitted to hold SK elections on December 4, 1992 while the rest of the 5,000 barangays were allowed even if KB elections had already been held there before, this fact does not give the youth voters in the 897 Manila barangays ground for complaint because what the other barangays did was contrary to law. There is no discrimination here. DECISION MENDOZA, J.: This is a petition for review on certiorari of the decision dated January 19, 1993 of the Regional Trial Court of Manila (Branch 36), 1 nullifying an order of the Department of Interior and Local Government (DILG), which in effect cancelled the general elections for the Sangguniang Kabataan (SK) slated on December 4, 1992 in the City of Manila, on the ground that the elections previously held on May 26, 1990 served the purpose of the first elections for the SK under the Local Government Code of 1991 (R.A. No. 7160). Section 423 of the Code provides for a SK in every barangay, to be composed of a chairman, seven (7) members, a secretary, and a treasurer. Section 532(a) provides that the first elections for the SK shall be held thirty (30) days after the next local elections. The Code took effect on January 1, 1992. The first local elections under the Code were held on May 11, 1992. Accordingly, on August 27, 1992, the Commission on Elections issued Resolution No. 2499, providing guidelines for the holding of the general elections for the SK on September 30, 1992. The guidelines placed the SK elections under the direct control and supervision of the DILG, with the technical assistance of the COMELEC. 2 After two postponements, the elections were finally scheduled on December 4, 1992.

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Accordingly, registration in the six districts of Manila was conducted. A total of 152,363 youngsters, aged 15 to 21 years old, registered, 15,749 of them filing certificates of candidacies. The City Council passed the necessary appropriations for the elections. On September 18, 1992, however, the DILG, through then Secretary Rafael M. Alunan III, issued a letter-resolution "exempting" the City of Manila from holding elections for the SK on the ground that the elections previously held on May 26, 1990 were to be considered the first under the newly-enacted Local Government Code. The DILG acted on a letter of Joshue R. Santiago, acting president of the KB City Federation of Manila and a member of City Council of Manila, which called attention to the fact that in the City of Manila elections for the Kabataang Barangay (the precursor of the Sangguniang Kabataan) had previously been held on May 26, 1990. In its resolution, the DILG stated:chanrob1es virtual 1aw library [A] close examination of . . . RA 7160 would readily reveal the intention of the legislature to exempt from the forthcoming Sangguniang Kabataan elections those kabataang barangay chapters which may have conducted their elections within the period of January 1, 1988 and January 1, 1992 under BP 337. Manifestly the term of office of those elected KB officials have been correspondingly extended to coincide with the term of office of those who may be elected under RA 7160. On November 27, 1992 private respondents, claiming to represent the 24,000 members of the Katipunan ng Kabataan, filed a petition for certiorari and mandamus in the RTC of Manila to set aside the resolution of the DILG. They argued that petitioner Secretary of Interior and Local Government had no power to amend the resolutions of the COMELEC calling for general elections for SKs and that the DILG resolution in question denied them the equal protection of the laws. On November 27, 1992, the trial court, through Executive Judge, now COMELEC Chairman, Bernardo P. Pardo, issued an injunction, ordering petitioners "to desist from implementing the order of the respondent Secretary dated September 18, 1992, . . . until further orders of the Court." On the same day, he ordered petitioners "to perform the specified pre-election activities in order to implement Resolution No. 2499 dated August 27, 1992 of the Commission on Elections providing for the holding of a general election of the Sangguniang Kabataan on December 4, 1992 simultaneously in every barangay throughout the country." chanroblesvirtuallawlibrary:red The case was subsequently reraffled to Branch 36 of the same court. On January 19, 1993, the new judge, Hon. Wilfredo D. Reyes, rendered a decision, holding that (1) the DILG had no power to "exempt" the City of Manila from holding SK elections on December 4, 1992 because under Art. IX, C, §2(1) of the Constitution the power to enforce and administer "all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall" is vested solely in the COMELEC; (2) the COMELEC had already in effect determined that there had been no previous elections for KB by calling for general elections for SK officers in every barangay without exception; and (3) the "exemption" of the City of Manila was violative of the equal protection clause of the Constitution because, according to the DILG’s records, in 5,000 barangays KB elections were held between January 1, 1988 and January 1, 1992 but only in the City of Manila, where there were 897 barangays, was there no elections held on December 4, 1992.

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Petitioners sought this review on certiorari. They insist that the City of Manila, having already conducted elections for the KB on May 26, 1990, was exempted from holding elections on December 4, 1992. In support of their contention, they cite §532(d) of the Local Government Code of 1991, which provides that:chanrob1es virtual 1aw library All seats reserved for the pederasyon ng mga sangguniang kabataan in the different sanggunians shall be deemed vacant until such time that the sangguniang kabataan chairmen shall have been elected and the respective pederasyon presidents have been selected: Provided, That, elections for the kabataang barangay conducted under Batas Pambansa Blg. 337 at any time between January 1, 1988 and January 1, 1992 shall be considered as the first elections provided for in this Code. The term of office of the kabataang barangay officials elected within the said period shall be extended correspondingly to coincide with the term of office of those elected under this Code. (emphasis added) They maintain that the Secretary of the DILG had authority to determine whether the City of Manila came within the exception clause of §532(d) so as to be exempt from holding the elections on December 4, 1992. The preliminary question is whether the holding of the second elections on May 13, 1996 3 rendered this case moot and academic. There are two questions raised in this case. The first is whether the Secretary of Interior and Local Government can "exempt" a local government unit from holding elections for SK officers on December 4, 1992 and the second is whether the COMELEC can provide that "the Department of Interior and Local Government shall have direct control and supervision over the election of sangguniang kabataan with the technical assistance by the Commission on Elections."cralaw virtua1aw library We hold that this case is not moot and that it is in fact necessary to decide the issues raised by the parties. For one thing, doubt may be cast on the validity of the acts of those elected in the May 26, 1990 KB elections in Manila because this Court enjoined the enforcement of the decision of the trial court and these officers continued in office until May 13, 1996. For another, this case comes within the rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review." 4 For the question whether the COMELEC can validly vest in the DILG the control and supervision of SK elections is likely to arise in connection with every SK election and yet the question may not be decided before the date of such elections. In the Southern Pacific Terminal case, where the rule was first articulated, appellants were ordered by the Interstate Commerce Commission to cease and desist from granting a shipper what the ICC perceived to be preferences and advantages with respect to wharfage charges. The cease and desist order was for a period of about two years, from September 1, 1908 (subsequently extended to November 15), but the U.S. Supreme Court had not been able to hand down its decision by the time the cease and desist order expired. The case was decided only on February 20, 1911, more than two years after the order had expired. Hence, it was contended that the case had thereby become moot and the appeal should be dismissed. In rejecting this contention, the Court held:chanrob1es virtual 1aw library The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and these considerations ought not to be, as they might be, defeated, by short-term orders, capable of repetition, yet evading

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review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress. 5 In Roe v. Wade, 6 petitioner, a pregnant woman, brought suit in 1970 challenging antiabortion statutes of Texas and Georgia on the ground that she had a constitutional right to terminate her pregnancy at least within the first trimester. The case was not decided until 1973 when she was no longer pregnant. But the U.S. Supreme Court refused to dismiss the case as moot. It was explained:" [W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive. Our laws should not be that rigid. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be ‘capable of repetition, yet evading review.’" 7 We thus reach the merits of the questions raised in this case. The first question is whether then DILG Secretary Rafael M. Alunan III had authority to determine whether under §532(d) of the Local Government Code, the City of Manila was required to hold its first elections for SK. As already stated, petitioners sustain the affirmative side of the proposition. On the other hand, respondents argue that this is a power which Art. IX, C, §2(1) of the Constitution vests in the COMELEC. Respondents further argue that, by mandating that elections for the SK be held on December 4, 1992 "in every barangay," the COMELEC in effect determined that there had been no elections for the KB previously held in the City of Manila. We find the petition to be meritorious. First. As already stated, by §4 of Resolution No. 2499, the COMELEC placed the SK elections under the direct control and supervision of the DILG. Contrary to respondents’ contention, this did not contravene Art. IX, C, §2(1) of the Constitution which provides that the COMELEC shall have the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." Elections for SK officers are not subject to the supervision of the COMELEC in the same way that, as we have recently held, contests involving elections of SK officials do not fall within the jurisdiction of the COMELEC. In Mercado v. Board of Election Supervisors, 8 it was contended thatchanroblesvirtual|awlibrary COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a separate set of rules for the election of the SK Chairman different from and inconsistent with that set forth in the Omnibus Election Code, thereby contravening Section 2, Article 1 of the said Code which explicitly provides that "it shall govern all elections of public officers" ; and, (b) it constitutes a total, absolute, and complete abdication by the COMELEC of its constitutionally and statutorily mandated duty to enforce and administer all election laws as provided for in Section 2(1), Article IX-C of the Constitution; Section 52, Article VIII of the Omnibus Election Code; and Section 2, Chapter 1, Subtitle C, Title 1, Book V of the 1987 Administrative Code. 9 Rejecting this contention, this Court, through Justice Davide, held:chanrob1es virtual 1aw library Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article IX-C of the Constitution on the COMELEC’s exclusive appellate jurisdiction over contests involving elective barangay officials refer to the elective barangay officials under the pertinent

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laws in force at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local Government Code, and the elective barangay officials referred to were the punong barangay and the six sangguniang bayan members. They were to be elected by those qualified to exercise the right of suffrage. They are also the same officers referred to by the provisions of the Omnibus Election Code of the Philippines on election of barangay officials. Metropolitan and municipal trial courts had exclusive original jurisdiction over contests relating to their election. The decisions of these courts were appealable to the Regional Trial Courts. x

x

x

In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly KB) officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in effect prior to the ratification of the Constitution had made the SK chairman an elective barangay official. His being an exofficio member of the sangguniang barangay does not make him one for the law specifically provides who are its elective members, viz., the punong barangay and the seven regular sangguniang barangay members who are elected at large by those who are qualified to exercise the right of suffrage under Article V of the Constitution and who are duly registered voters of the barangay. 10 The choice of the DILG for the task in question was appropriate and was in line with the legislative policy evident in several statutes. Thus, P.D. No. 684 (April 15, 1975), in creating Kabataang Barangays in every barangay throughout the country, provided in §6 that the "Secretary of Local Government and Community Development shall promulgate such rules and regulations as may be deemed necessary to effectively implement the provisions of this Decree." Again, in 1985 Proclamation No. 2421 of the President of the Philippines, in calling for the general elections of the Kabataang Barangay on July 13-14, 1985, tasked the then Ministry of Local Government, the Ministry of Education, Culture and Sports, and the Commission on Elections to assist the Kabataang Barangay in the conduct of the elections. On the other hand, in a Memorandum Circular dated March 7, 1988, President Corazon C. Aquino directed the Secretary of Local Government to issue the necessary rules and regulations for effecting the representation of the Kabataang Barangay, among other sectors, in the legislative bodies of the local government units. The role of the COMELEC in the 1992 elections for SK officers was by no means inconsequential. DILG supervision was to be exercised within the framework of detailed and comprehensive rules embodied in Resolution No. 2499 of the COMELEC. What was left to the DILG to perform was the enforcement of the rules. Second. It is contended that, in its resolution in question, the COMELEC did not name the barangays which, because they had conducted kabataang barangay elections between January 1, 1988 and January 1, 1992, were not included in the SK elections to be held on December 4, 1992. That these barangays were precisely to be determined by the DILG is, however, fairly inferable from the authority given to the DILG to supervise the conduct of the elections. Since §532(d) provided for kabataang barangay officials whose term of office was extended beyond 1992, the authority to supervise the conduct of elections in that year must necessarily be deemed to include the authority to determine which kabataang barangay would not be

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included in the 1992 elections. The authority granted was nothing more than the ascertainment of a fact, namely, whether between January 1, 1988 and January 1, 1992 elections had been held in a given kabataang barangay. If elections had been conducted, then no new elections had to be held on December 4, 1992 since by virtue of §532(d) the term of office of the kabataang barangay officials so elected was "extended correspondingly to coincide with the term of office of those elected under [the Local Government Code of 1991]." In doing this, the Secretary of Interior and Local Government was to act merely as the agent of the legislative department, to determine and declare the event upon which its expressed will was to take effect. 11 There was no undue delegation of legislative power but only of the discretion as to the execution of a law. That this is constitutionally permissible is the teaching of our cases. 12 Third. Respondents claim, however, that the May 26, 1990 KB elections in Manila were void because (a) they were called at the instance of then Mayor Gemiliano C. Lopez who did not have authority to do so and (b) it was not held under COMELEC supervision. The 1990 elections for the Kabataang Barangay were called by then Manila Mayor Gemiliano C. Lopez, Jr., who in his Executive Order No. 21 dated April 25, 1990 stated:chanrob1es virtual 1aw library WHEREAS, the Kabataang Barangay as an organization provided for under Batas Pambansa Bilang 337, has been practically dormant since the advent of the present national administration; WHEREAS, there is an urgent need to involve the youth in the affairs and undertakings of the government to ensure the participation of all sectors of our population in the task of nation building; WHEREAS, the last elections for the Kabataang Barangay officers were held in November 1985 yet, which is over their three years term of office; WHEREAS, most of the present crop of KB officers are way past the age limit provided for under the law; x

x

x

The elections were actually held on May 26, 1990 in the 897 barangays of Manila. Later, on June 30, 1990, KB City Federation elections were conducted. It was precisely to foreclose any question regarding the validity of KB elections held in the aftermath of the EDSA revolution and upon the effectivity of the new Local Government Code that the exception clause of §532(d) was inserted. The proceedings of the Bicameral Conference Committee which drafted the Code show the following: 13 CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o section, ha! HON. LINA: . . .

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Page 436, lines 13 to 14 delete within eighteen months prior to December 31, 1990, and in lieu thereof, insert from 1988 up to the effectivity of the Code. The rationale. . . . CHAIRMAN DE PEDRO: How should it be read? HON. LINA: It will read as follows: "Provided however, that the Local Government Units which have conducted elections for the Kabataang Barangay as provided for, in Batas Pambansa Bilang 337, up to the effectivity. . . ."cralaw virtua1aw library CHAIRMAN DE PEDRO: So, any deletion from the word "within," ha, up to. . . . HON. LINA: Remove the words, the phrase, "within eighteen months prior to December 31, 1990, and insert from 1988 up to the effectivity of this Code."cralaw virtua1aw library CHAIRMAN DE PEDRO: From? HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang mga election, eh, na ginawa, eh. There are five thousand barangays, based on the record of the DILG, out of forty thousand, imagine that, na nag-conduct na ng election nila based on the KB Constitution and By-Laws, and they’re sitting already, now if we do not recognize that, mag[ka]karoon sila ng question. CHAIRMAN DE PEDRO: Accepted, Mr. Chairman. Section §532(d) may thus be deemed to be a curative law. Curative laws, which in essence are retrospective in effect, are enacted to validate acts done which otherwise would be invalid under existing laws, by considering them as having complied with the existing laws. Such laws are recognized in this jurisdiction. 14 Fourth. It is finally contended that the exemption of the barangays of the City of Manila from the requirement to hold elections for SK officers on December 4, 1992 would deny the youth voters in those barangays of the equal protection of laws. Respondents claim that only in the barangays in the City of Manila, which then numbered 897, were elections for SK not held in 1992 on the ground that between January 1, 1988 and January 1, 1992 there had already been SK elections held, when, according to petitioners’ own evidence, during that period, SK elections had actually been conducted in 5,000 barangays. Whether this claim is true cannot be ascertained from the records of this case. Merely showing that there were 5,000 barangays which similarly held KB elections between January 1, 1988 and January 1, 1992 does not prove that despite that fact these same barangays were permitted to hold elections on December 4, 1992. For one thing, according to the Manila Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the Province of Bulacan did not have SK elections on December 4, 1992 either, because they already had elections between January 1, 1988 and January 1, 1992. For another, even assuming that only barangays in Manila were not permitted to hold SK elections on December 4, 1992 while the rest of the 5,000 barangays were allowed even if KB elections had already been held there before, this fact does not give the youth voters in the 897 Manila barangays ground for complaint because what the other barangays did was contrary to law. There is no discrimination

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here.chanroblesvirtuallawlibrary In People v. Vera 15 this Court struck down the Probation Law because it permitted unequal application of its benefits by making its applicability depend on the decision of provincial governments to appropriate or not to appropriate funds for the salaries of probation officers, with the result that those not disposed to allow the benefits of probations to be enjoyed by their inhabitants could simply omit to provide for the salaries of probation officers. The difference between that case and the one at bar lies in the fact that what youth voters in the other barangays might have been allowed was not a right which was denied to youth voters in Manila. If those barangays were not entitled to have SK elections on December 4, 1992 but nevertheless were allowed to have such elections, that fact did not mean those in Manila should similarly have been allowed to conduct elections on December 4, 1992 because the fact was that they already had their own, just two years before on May 26, 1990. Respondents’ equal protection argument violates the dictum that one wrong does not make another wrong right. WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 36 is REVERSED and the case filed against petitioner by private respondents is DISMISSED. SO ORDERED. Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur. Narvasa, C.J. and Torres, Jr., J., are on leave. Endnotes:

1. Per Judge Wilfredo D. Reyes, Rollo, pp. 72-80. 2. Resolution No. 2499, §§2 and 4. 3. The second elections were held pursuant to R.A. No. 7808, approved on September 2, 1994 which provided that "the regular elections for the sangguniang kabataan shall be held on the first Monday of May 1996: Provided, further, That the succeeding regular elections for the sangguniang kabataan shall be held every three (3) years thereafter; Provided, finally, that the national, special metropolitan, provincial, city, and municipal federations of the sangguniang kabataan shall conduct the election of their respective officers thirty (30) days after the May 1996 sangguniang kabataan elections on dates to be scheduled by the Commission on Elections."cralaw virtua1aw library 4. Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 55 L.Ed. 310 (1911); Moore v. Ogilvie, 394 U.S. 814, 23 L.Ed.2d 1 (1969) (challenge to signature requirement on nominating petitions, election had been held before the U.S. Supreme Court could decide case); Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274 (1972) (U.S. Supreme Court decided merits of a challenge to durational residency requirement for voting even though Blumstein had in the meantime satisfied that requirement).

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5. Id., at 515, 55 L.Ed at 316. 6. 410 U.S. 113, 35 L.Ed.2d 147 (1973). 7. Id., at 125, 35 L.Ed.2d at 161 8. 243 SCRA 422 (1995). 9. Id., at 426. 10. Id., at 434. 11. Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 469 (1935). 12. Cruz v. Youngberg, 56 Phil. 234 (1931); Edu v. Ericta, 146 Phil. 469 (1970). 13. Records of Deliberations of the Bicameral Conference Committee on Local Government, May 31, 1991, pp. 4-5 (emphasis added). 14. Municipality of San Narciso, Quezon v. Mendez, Sr., 239 SCRA 11 (1994). 15. 65 Phil. 56 (1937).

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EN BANC G.R. Nos. 122250 & 122258 July 21, 1997 EDGARDO C. NOLASCO, Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS, MEYCAUAYAN, BULACAN, and EDUARDO A. ALARILLA, Respondents. FLORENTINO P. BLANCO, Petitioner, v. COMMISSION ON ELECTIONS, and EDUARDO A. ALARILLA, Respondents. PUNO, J.: First, we rewind the facts. The election for mayor of Meycauayan, Bulacan was held on May 8, 1995. The principal protagonists were petitioner Florentino P. Blanco and private respondent Eduardo A. Alarilla. Blanco received 29,753 votes, while Alarilla got 23,038 votes. 1 Edgardo Nolasco was elected Vice-Mayor with 37,240 votes. On May 9, 1995, Alarilla filed with the COMELEC a petition to disqualify Blanco. He alleged: xxx xxx xxx 4. Based on intelligence reports that respondent was maintaining his own "private army" at his aforesaid resident, P/Insp. Ronaldo O. Lee of the Philippine National Police assigned with the Intelligence Command at Camp Crame, applied for and was granted search warrant no. 95147 by Branch 37 of the Regional Trial Court of Manila on 5 May 1995. A copy of the said search warrant is attached as Annex "A" hereof. 5. In compliance with said search warrant no. 95-147, an elite composite team of the PNP Intelligence Command, Criminal Investigation Service (CIS), and Bulacan Provincial Command, backed up by the Philippine National Police Special Action Force, accompanied by mediamen who witnessed and recorded the search by video and still cameras, raided the house of respondent Florentino Blanco at his stated address at Bancal, Meycauayan, Bulacan. 6. Enclosed as Annex "A-1" is a video tape taken of the proceedings during the raid. 7. The composite team was able to enter the said premises of respondent Florentino Blanco where they conducted a search of the subject firearms and ammunition. 8. The search resulted in the arrest of six (6) men who were found carrying various high powered firearms without any license or authority to use or possess such long arms. These persons composing respondent's "private army," and the unlicensed firearms are as follows: A. Virgilio Luna y Valderama -

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1 PYTHOM (sic) Cal . 347 SN 26946 with six (6) Rounds of Ammo. 2 INGRAM M10 Cal. 45 MP with Suppressor SN: 45457 with two (2) Mags and 54 Rounds of Ammo. B. Raymundo Bahala y Pon 1. HKMP5 Sn. C334644 with two (2) Mags and 47 Rounds of Ammo. C. Roberto Santos y Sacris 1. Smith and Wesson 357 Magnum Sn: 522218 with six (6) Rounds of Ammo. D. Melchor Cabanero y Oreil 1. Armscor 12 Gauge with three (3) Rounds of Ammo. E. Edgardo Orteza y Asuncion 1. Paltik Cal. 38 Rev with six (6) Rounds of Ammo. F. Francisco Libari y Calimag 1. Paltik Cal. 38 SN: 36869 Copies of the inventory receipts are hereto attached as Annexes "B" to "B-5" hereof. 9. During the search, members of the composite team saw through a large clear glass window, respondent's Galil assault rifle on a sofa inside a closed room of the subject premises. 10. Not allowed entry thereto by respondent and his wife, the members of the composite police-military team applied for the issuance of a second search warrant (Annex "B-6") so that they could enter the said room to seize the said firearm. 11. While waiting for the issuance of the second search warrant, respondent's wife and respondent's brother, Mariano Blanco, claiming to be the campaign manager of respondent in the Nationalist People's Coalition Party, asked permission to enter the locked room so they could withdraw money in a vault inside the locked room to pay their watchers, and the teachers of Meycauayan in the 8 May 1995 elections.

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12. For reasons not known to petitioner, Mrs. Florentino Blanco and Mariano Blanco, were allowed to withdraw ten (10) large plastic bags from the vault. 13. When the said PNP composite team examined the ten (10) black plastic bags, they found out that each bag contained ten (10) shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay envelope when opened contained the amount of P1,000.00. When questioned, respondent's brother Mariano Blanco and respondent's wife, admitted to the raiding team that the total amount of money in the ten (10) plastic bags is P10,000,000.00. 14. The labels found in the envelope shows that the money were intended as respondent's bribe money to the teachers of Meycauayan. Attached as Annex "C" is the cover of one of the shoe boxes containing the inscription that it is intended to the teachers of Brgy. Lawa, Meycauayan, Bulacan. 15. On election day 8 May 1995, respondent perpetrated the most massive vote-buying activity ever in the history of Meycauayan politics. Attached as Annex "D" is the envelope where this P10,000,000.00 was placed in 100 peso denominations totalling one thousand pesos per envelope with the inscription "VOTE!!! TINOY." This massive vote-buying activity was engineered by the respondent through his organization called "MTB" or "MOVEMENT FOR TINOY BLANCO VOLUNTEERS." The chairman of this movement is respondent's brother, Mariano P. Blanco, who admitted to the police during the raid that these money were for the teachers and watchers of Meycauayan, Bulacan. Attached as Annex "E" hereof is an MTB ID issued to one Armando Bulan of Precinct 77-A, Brgy. Jasmin, Bancal, Meycauayan, Bulacan. You will note that the ID is perforated in the middle. The purpose is for the voter to tear the office copy and return it to respondent's headquarters to receive the balance of the P500.00 of the bribe money after voting for respondent during the elections. The voter will initially be given a down-payment of 500.00. 16. This massive vote-buying was also perpetrated by respondent thru the familiar use of flying voters. Attached as Annex "F" hereof is a copy of the Police Blotter dated 8 May 1995 showing that six (6) flying voters were caught in different precincts of Meycauayan, Bulacan, who admitted after being caught and arrested that they were paid P200.00 to P300.00 by respondent and his followers, to vote for other voters in the voter's list. 17. Not satisfied, and with his overflowing supply of money, respondent used another scheme as follows. Respondent's paid voter will identify his target from the list of voter and will impersonate said voter in the list and falsify his signature. Attached as Annex "G" hereof is the Minutes of Voting and Counting of Votes in Precinct No. 26, Brgy. Calvario, Meycauayan, Bulacan. Annex "G-1" is the statement of one Ma. Luisa de los Reyes Cruz stating that when she went to her precinct to vote, her name was already voted upon by another person. This entry was noted by Leticia T. Villanco, Poll Chairman; Estelita Artajo, - Poll Clerk; and Nelson John Nito - Poll Member. 18. Earlier before the election, respondent used his tremendous money to get in the good graces of the local Comelec Registrar, who was replaced by this Office upon the petition of the

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people of Meycauayan. Attached as Annex "H" hereof is an article in the 3 May 1995 issue of Abante entitled "1 M Suhol sa Comelec Registrar." 19. The second search warrant on respondent's residence yielded to more firearms and thousands of rounds of ammunition. These guns were used by respondent to terrorize the population and make the people afraid to complain against respondent's massive vote buying and cheating in today's elections. Respondent's bribery of the teachers ensured the implementation of his vote buying ballot box switching, impersonations, and other cheating schemes. Attached as Annexes "I-1" to "I-2" are the pertinent Receipts of the guns and ammunitions seized from respondent. Attached as Annex "J" is a Certification to the same effect. 20. The above acts committed by respondent are clear grounds for disqualification under Sec. 68 of the Omnibus Election Code for giving money to influence, induce or corrupt the voters or public officials performing election functions; for committing acts of terrorism to enhance his candidacy; and for spending in his election campaign an amount in excess of that allowed by the Election Code. There are only 97,000 registered voters in Meycauayan versus respondent's expenses of at least P10,000,000.00 as admitted above. (Emphasis supplied). On May 15, 1995, Alarilla filed a Very Urgent Ex Parte Motion to Suspend Proclamation. The COMELEC (First Division) granted the motion after finding that there was a "probable commission of election offenses which are grounds for disqualification pursuant to the provisions of section 68 of the Omnibus Election Code (BP 881), and the evidence in support of disqualification is strong." It directed the Municipal Board of Canvassers "to complete the canvassing of election returns of the municipality of Meycauayan, but to suspend proclamation of respondent Florentino P. Blanco should he obtain the winning number of votes for the position of Mayor of Meycauayan, Bulacan until such time when the petitions for disqualification against him shall have been resolved." On May 25, 1995, Blanco filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him. On May 30, 1995, the COMELEC (First Division) heard the petition to disqualify Blanco. The parties thereafter submitted their position papers. 2 Blanco even replied to the position paper of Alarilla on June 9, 1995. On August 15, 1995, the COMELEC (First Division) disqualified Blanco on the ground of votebuying, viz.: 3 xxx xxx xxx WHEREFORE, premises considered, the Commission (First Division) RESOLVES to DISQUALIFY Respondent Florentino P. Blanco as a candidate for the Office of Mayor of Meycauayan, Bulacan in the May 8, 1995 elections for having violated Section 261 (a) of the Omnibus Election Code. The Order suspending the proclamation of herein Respondent is now made PERMANENT. The Municipal Board of Canvassers of Meycauayan, Bulacan shall immediately

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reconvene and, on the basis of the completed canvass of the election returns, determine the winner out of the remaining qualified candidates who shall be immediately proclaimed. SO ORDERED. Blanco moved for reconsideration on August 19, 1995 in the COMELEC en banc. Nolasco, as vice mayor, intervened in the proceedings. 4 He moved for reconsideration of that part of the resolution directing the Municipal Board of Canvassers to "immediately reconvene and, on the basis of the completed canvass of the election returns, determine the winner out of the remaining qualified candidates who shall be immediately proclaimed." He urged that as vicemayor he should be declared mayor in the event Blanco was finally disqualified. The motions were heard on September 7, 1995. The parties were allowed to file their memoranda with right of reply. On October 23, 1995, the COMELEC en banc denied the motions for reconsideration. In this petition for certiorari, 5 Blanco contends: xxx xxx xxx 18. Respondent COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction and acted arbitrarily in affirming en toto and adopting as its own the majority decision of the First Division in that: 18.1 It upheld the validity of the May 17, 1995 order suspending proclamation of Petitioner Blanco herein as the winning candidate for Mayor of Meycauayan without the benefit of any notice or hearing in gross and palpable violation of Blanco's constitutional right to due process of law. 18.2 It violated the provisions of COMELEC Res. No. 2050 as amended, prescribing the procedure for disposing of disqualification cases arising out of the prohibited acts mentioned in Sec. 68 of the Omnibus Election Code, which Resolution this Honorable Tribunal explicitly sanctioned in the case of Lozano v. Yorac. Moreover, it (COMELEC) violated Blanco's right to equal protection of the laws by setting him apart from other respondents facing similar disqualification suits whose case were referred by COMELEC to the Law Department pursuant to Com. Res. No. 2050 and ordering their proclamation - an act which evidently discriminated against Petitioner Blanco herein. 18.3 It decided Petitioner Blanco's disqualification case in a SUMMARY PROCEEDING in violation of law and the precedents which consistently hold that questions of VOTE-BUYING, terrorism and similar such acts should be resolve in a formal election protest where the issue of vote buying is subjected to a full-dress hearing instead of disposing of the issue in a summary proceeding; 18.4 It declared Petitioner Blanco as having been involved in a conspiracy to engage in VOTEBUYING without that minimum quantum of proof required to establish a disputable presumption of vote-buying in gross and palpable violation of the provisions of Section 28, Rep. Act. 6646;

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18.5 It ordered the proclamation of a SECOND PLACER as the duly elected Mayor of Meycauayan, Bulacan, in gross violation and utter disregard of the doctrine laid down by this Honorable Supreme Court in the case of LABO vs. COMELEC which was reiterated only recently in the case of Aquino vs. Syjuco. On the other hand, Nolasco contends in his petition for certiorari 6 that he should be declared as Mayor in view of the disqualification of Blanco. He cites section 44 of R.A. No. 7160 otherwise known as the Local Government Code of 1991 and our decision in Labo vs. COMELEC. 7 We shall first resolve the Blanco petition. Blanco was not denied due process when the COMELEC (First Division) suspended his proclamation as mayor pending determination of the petition for disqualification against him. Section 6 of R.A. No. 6646 and sections 4 and 5 of the Rule 25 of the Comelec Rules of Procedure merely require that evidence of guilt should be strong to justify the COMELEC in suspending a winning candidate's proclamation. It ought to be emphasized that the suspension order is provisional in nature and can be lifted when the evidence so warrants. It is akin to a temporary restraining order which a court can issue ex-parte under exigent circumstances. In any event, Blanco was given all the opportunity to prove that the evidence on his disqualification was not strong. On May 25, 1995, he filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him. The COMELEC heard the petition. Blanco thereafter submitted his position paper and reply to Alarilla's position paper. The COMELEC considered the evidence of the parties and their arguments and thereafter affirmed his disqualification. The hoary rule is that due process does not mean prior hearing but only an opportunity to be heard. The COMELEC gave Blanco all the opportunity to be heard. Petitions for disqualification are subject to summary hearings. 8 Blanco also faults the COMELEC for departing from the procedure laid down in COMELEC Resolution 2050 as amended, in disqualification cases. The resolution pertinently provides: xxx xxx xxx Where a similar complaint is filed after election but before proclamation of the respondent candidate the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong. It is alleged that the violation is fatal as it deprived Blanco of equal protection of our laws.

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We do not agree. It cannot be denied that the COMELEC has jurisdiction over proclamation and disqualification cases. Article IX-C, section 2 of the Constitution endows the COMELEC the all encompassing power to "enforce and administer all laws and regulations relative to the conduct of an election . . . ." We have long ruled that this broad power includes the power to cancel proclamations.9 Our laws are no less explicit on the matter. Section 68 of B.P. Blg. 881 (Omnibus Election Code) provides: Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for an elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws. Section 6 of R.A. No. 6646 likewise provides: Sec. 6. Effect of Disqualification Case - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Despite these laws and existing jurisprudence, Blanco contends that COMELEC must follow the procedure in Resolution No. 2050 as amended. We hold that COMELEC cannot always be straitjacketed by this procedural rule. The COMELEC has explained that the resolution was passed to take care of the proliferation of disqualification cases at that time. It deemed it wise to delegate its authority to its Law Department as partial solution to the problem. The May 8, 1995 elections, however, did not result in a surfeit of disqualification cases which the COMELEC cannot handle. Hence, its decision to resolve the disqualification case of Blanco directly and without referring it to its Law Department is within its authority, a sound exercise of its discretion. The action of the COMELEC is in accord with Section 28 of R.A. No. 6646, viz: xxx xxx xxx Sec. 28. Prosecution of Vote-Buying and Vote-selling. - The presentation of a complaint for violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witness attesting to the offer or promise by or of the voter's acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate, shall be sufficient basis for an investigation to be immediately conducted by the Page 301 of 492

Commission, directly or through its duly authorized legal officers under Section 68 or Section 265 of said Batas Pambansa Blg. 881. (emphasis supplied) xxx xxx xxx Indeed, even Commissioner Maambong who dissented from the majority ruling, clings to the view that "Resolution No. 2050 cannot divest the Commission of its duty to resolve disqualification cases under the clear provision of section 6 of R.A. No. 6646." 10 Clearly too, Blanco's contention that he was denied equal protection of the law is off-line. He was not the object of any invidious discrimination. COMELEC assumed direct jurisdiction over his disqualification case not to favor anybody but to discharge its constitutional duty of disposing the case in a fair and as fast a manner as possible. Blanco also urges that COMELEC erred in using summary proceedings to resolve his disqualification case. Again, the COMELEC action is safely anchored on section 4 of its Rules of Procedure which expressly provides that petitions for disqualification "shall be heard summarily after due notice." Vote-buying has its criminal and electoral aspects. Its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of summary hearing. However, its electoral aspect to ascertain whether the offender should be disqualified from office can be determined in an administrative proceeding that is summary in character. The next issue is whether there is substantial evidence to prove the vote buying activities of Blanco. The factual findings of the COMELEC (First Division) are as follows: 11 xxx xxx xxx Respondent argues that the claim of vote-buying has no factual basis because the affidavits and sworn statements admitted as evidence against him are products of hearsay; inadmissible because of the illegal searches; they violate the Rule of Res Inter Alios Acta and the offense of vote-buying requires consummation. We are not impressed. A studied reading of the affidavits [Respondent's affidavit is unsigned] attached to the Reply of the Respondent to the Position Paper of the Petitioner [Annexes 1, 2 and 3] would reveal that they are in the nature of general denials emanating from individuals closely associated or related to respondent Blanco. The same holds true with the affidavits attached to Respondent's Position Paper [Annexes 1, 2, 3 and 4]. Said affidavits were executed by Blanco's political leaders and private secretary. On the other hand, the affidavit of Romeo Burgos [Exhibit "E-1"] is rich in detail as to how the alleged vote-buying was conducted.

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Moreover, the same is corroborated by object evidence in the nature of MTB [Movement for Tinoy Blanco] cards which were in the possession of the affiants and allegedly used as a means to facilitate the vote-buying scheme. There are also admissions of certain individuals who received money to vote for Respondent [Annexes "E-2", "E-3" , "E-4" , "E-5" ,"E-6", "E-7", "E-8", "E-9" and "E-10"]. On the day of the elections, two individuals were apprehended for attempting to vote for Respondent when they allegedly are not registered voters of Meycauayan. A criminal complaint for violation of section 261 [2] of BP 881 was filed by P/Sr. Inspector Alfred S. Corpus on May 9, 1995 with the Municipal Trial Court of Bulacan. The same was docketed as Criminal Case 95-16996 [Exhibit F-2]. Again, similar pay envelopes with money inside them were found in the possession of the suspected flying voters. The incident was corroborated by Adriano Llorente in his affidavit narrating the same [Exhibit "F-1"]. Llorente, a poll watcher of Petitioner, was the one who accosted the two suspected flying voters when the latter attempted to vote despite failing to locate their names in the voter's list. From this rich backdrop of detail, We are disappointed by the general denial offered by Respondent. In People of the Philippines vs. Navarro, G.R. No. 96251, May 11, 1993, 222 SCRA 684, the Supreme Court noted that "Denial is the weakest defense" [page 692]. In People of the Philippines vs. Rolando Precioso, et al., G.R. No. 95890, May 12, 1993, 221 SCRA 1993, the Supreme Court observed that, We have consistently ruled that denials if unsubstantiated by clear and convincing evidence are negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses. Ergo, as between the positive declarations of the prosecution witness and the negative statements of the accused, the former deserves more credence. [page 754]. However, Respondent conveniently resorts to section 33, Rule 130 of the Revised Rules of Court which states that a declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included herein, may be given in evidence against him [affiants who executed Exhibits E-1 to E-10] but not against Respondent. There is no merit in this contention. The affiants are not the accused. Their participation in the herein case is in the nature of witnesses who have assumed the risk of being subsequently charged with violating Section 261 [1] of BP 881. In fact, their affidavits were sought by the Petitioner and not by any law enforcement agency. Even Respondent admits this finding when he filed his Reply to Petitioner's Position Paper and Motion to Refer for Preliminary Investigation and Filing of Information in Court against the Persons Who Executed Exhibits E-1l to E-10 for Having

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Admitted Commission of Election Offense. If they were the accused, why file the motion? Would not this be redundant if not irrelevant? xxx xxx xxx Another telling blow is the unexplained money destined for the teachers. Why such a huge amount? Why should the Respondent, a mayoralty candidate, and according to his own admission, be giving money to teachers a day before the elections? What were the peso bills doing in pay envelopes with the inscription "VOTE!!! TINOY", and kept in shoe boxes with the word "Teachers" written on the covers thereof ? There is also something wrong with the issuance of the aforementioned MTB cards when one considers the testimony of Burgos that more or less 50,000 of these cards, which is equivalent to more or less 52% of the 97,000 registered voters of Meycauayan, Bulacan, were printed by respondent; that there are only 443 precincts in Meycauayan; that under the law, a candidate is allowed only one watcher per polling place and canvassing area; and, finally, that there is no explanation at all by the respondent as to what these "watchers" did in order to get paid P300.00 each. xxx xxx xxx Respondent also avers that for an allegation of vote-buying to prosper, the act of giving must be consummated. Section 281 [a] of BP 881 states "any person who gives, offers, or promises money . . ." Section 28 of RA 6646 also states that "the giver, offeror, the promisor as well as the solicitor, recipient and conspirator referred to in paragraphs [a] and [b] of section 261 of Batas Pambansa Blg. 881 shall be liable as principals: . . . . While the giving must be consummated, the mere act of offering or promising something in consideration for someone's vote constitutes the offense of vote-buying. In the case at bar, the acts of offering and promising money in consideration for the votes of said affiants is sufficient for a finding of the commission of the offense of vote-buying. These factual findings were affirmed by the COMELEC en banc against the lone dissent of Commissioner Maambong. There is an attempt to discredit these findings. Immediately obvious in the effort is the resort to our technical rules of evidence. Again, our ingrained jurisprudence is that technical rules of evidence should not be rigorously applied in administrative proceedings especially where the law calls for the proceeding to be summary in character. More importantly, we cannot depart from the settled norm of reviewing decisions of the COMELEC, i.e., that "this Court cannot review the factual findings of the COMELEC absent a grave abuse of discretion and a showing of arbitrariness in its decision, order or resolution." 12

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We now come to the petition of Nolasco that he should be declared as mayor in the event Blanco is finally disqualified. 13 We sustain the plea. Section 44, Chapter 2 of the Local Government Code of 1991 (R.A. No. 7160) is unequivocal, thus: xxx xxx xxx Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. - (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sangguniang members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each distribution the immediately preceding election. In the same vein, Article 83 of the Rules and Regulations Implementing, the Local Government Code of 1991 provides: xxx xxx xxx Art. 83. Vacancies and Succession of Elective Local Officials. - (a) What constitutes permanent vacancy - A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. (b) Permanent vacancies in the offices of the governor, vice governor, mayor and vice mayor (1) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall ipso facto become the governor or mayor. If a permanent

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vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall ipso facto become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined in this Article. Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes v. COMELEC,14 viz: xxx xxx xxx We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. Consequently, respondent COMELEC committed grave abuse of discretion insofar as it failed to follow the above doctrine, a descendant of our ruling in Labo v. COMELEC. 15 A final word. The dispute at bar involves more than the mayoralty of the municipality of Meycauayan,Bulacan. It concerns the right of suffrage which is the bedrock of republicanism. Suffrage is the means by which our people express their sovereign judgment. Its free exercise must be protected especially against the purchasing power of the peso. As we succinctly held in People v. San Juan, 16"each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizen's free choice. For to impede, without authority valid in law,

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the free and orderly exercise of the right of suffrage, is to inflict the ultimate indignity on the democratic process." IN VIEW WHEREOF, the resolution of the respondent COMELEC en banc dated October 23, 1995 is affirmed with the modification that petitioner Edgardo C. Nolasco is adjudged as Mayor of Meycauyan, Bulacan in view of the disqualification of Florentino P. Blanco. No costs. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Vitug, Mendoza and Francisco, JJ., concur. Panganiban, J., took no part. Padilla, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., are on leave. Separate Opinions BELLOSILLO, J.: concurring and dissenting I find difficulty in concurring with the majority that the COMELEC order disqualifying Blanco is based on substantial evidence; therefore I vote to set aside that order. I however join the majority opinion that, as a result of the disqualification of Blanco, the Labo doctrine 1should apply. The law on vacancies and succession of elective local officials is very clear. Section 44 (a), Chapter 2, R.A. No. 7160, otherwise known as The Local Government Code of 1991, provides that "[i]f a permanent vacancy occurs in the office of the . . . mayor, the . . . vice mayor concerned shall become the . . . mayor." Paragraph 2 of the same provision states that "a permanent vacancy arises when an elective local official . . . fails to qualify . . . . These provisions are echoed in Art. 83 of the Implementing Rules and Regulations of the Local Government Code of 1991. When the language of the law is clear, explicit and unequivocal, it admits no room for interpretation, but simply application. This is a basic legal precept. In the issue at hand, I find no necessity to make distinctions as the applicable law is clear. Accordingly, considering that Blanco has been adjudged by the majority to be disqualified, he comes within the purview of "fail(ing) to qualify" for the said office. And since a "permanent vacancy" has occurred in the office of the mayor, Nolasco who is the duly elected vice mayor, and who now occupies the position of mayor in an acting capacity, should succeed as provided for by law. And this is in consonance with the pronouncements of this Court in Geronimo v. Ramos2 and Topacio v. Paredes 3 which were reiterated in Labo v. COMELEC 4 . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.

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Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a plurality of the legal votes cast in the election (20 Corpus Juris 2nd, 243, p. 676). The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office . . . . The rightful assumption of Nolasco to the office of mayor is however only a consequence of the disqualification of Blanco to which I dissent. For, I do not agree with the submission that the COMELEC order disqualifying Blanco is based on substantial evidence. While the dossier of evidence submitted by Alarilla to show that Blanco committed massive vote-buying may appear at first blush to be overwhelming, a careful scrutiny of each piece of evidence does not measure up. I simply find no evidence to link Blanco to the alleged vote-buying. Consequently, I agree with Commissioner Maambong that Alarilla has failed to substantiate his allegation that Blanco engaged in or had knowledge of and consented to the buying of votes. Alarilla relies on several affidavits narrating incidents to prove that Blanco supposedly bought votes. But aside from the inaccuracies and the doubtful origin of these affidavits, which were executed only about a month after the petition to disqualify Blanco was filed, using fill-in-theblanks forms, none of the affiants was presented before respondent COMELEC to substantiate the allegations. 5 At the very least, some affiants should have been presented in the hearings supposedly conducted. In his Petition (to disqualify Blanco), Alarilla alleged that "[w]hen the said PNP composite team examined the ten (10) black plastic bags, they found out that each bag contained then (10) shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay envelope when opened contained the amount of P1,000.00. When questioned, respondent's brother (Mariano P. Blanco) and respondent's wife allegedly admitted to the raiding team that the total amount of money in the ten (10) plastic bags is (was) P10,000,000.00." 6 But Alarilla has miserably failed to substantiate his allegations. He merely presented the sworn statement of Orlando Mauricio y Labora who claims to have filmed the raid. But the statements of Mauricio are not even consistent with the allegations of Alarilla in his Petition to disqualify Blanco. In his Petition, Alarilla claims that each "pay envelope" contained P1,000.00, 7 while in the affidavit of Mauricio it is stated that there were envelopes which contained P2,000.00 (Exh. "A-3"). Alarilla should have presented at least one (1) member of the PNP raiding team who supposedly examined the ten (10) black plastic bags and questioned Blanco's brother and wife as to the amount of the supposed money. In the absence of a credible testimony, the alleged admission of the brother and wife of Blanco that "the total amount of money in the ten (10) plastic bags is P10,000,000.00" becomes quite doubtful. For, the imputed admission is simply contrary to human nature and experience. If there really was P10,000,000.00 in the plastic bags, there was no need to divulge the amount to the raiding team. The Blancos could have just kept quiet and let the raiding team count the money.

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The video tape marked Exh. "A-1" could not be of any help to Alarilla as its contents were not even viewed by the COMELEC; 8 neither the photograph of a cover of one of the shoe boxes with the words "LAWA" and "TEACHERS" (Exh. "C"), nor the photograph of an envelope with the inscription "VOTE!!! TINOY!!!" (Exh. "D"), which by themselves mean nothing. Suffice it to say that these pieces of evidence are miserably insufficient to link Blanco to the alleged votebuying. The same is true with the MTB identification card with perforation in the middle portion with the inscription "Office Copy" on the right half of the card (Exh. "E"); it cannot by itself be evidence of vote-buying. On its face it is simply an evidence of membership with the Movement for Tinoy Blanco Volunteers and the "Office Copy" may only be for the files of the office. Certainly it may be speculated that these identification cards may somehow be used to carry out a vote-buying scheme. But speculations that they are, it is still difficult to surmise how they could ensure that the cardholders would surely vote for Blanco. Even the uniform claim of the nine (9) individuals who filled out computerized print-outs stating that they received MTB identification cards and envelopes containing P300.00 each from the henchmen of Blanco and for the "Office Copy" of their respective MTB cards, and that petitioner Blanco himself promised to give them additional P200.00 in exchange for the other half of their MTB cards after the elections, if he won as Mayor (Exhs. "E-2" to "E-10"), deserves scant consideration. These statements are contrary to the allegations in the petition to disqualify Blanco where it is alleged that MTB cardholders were initially given P500.00 and promised another P500.00. 9 I cannot disagree with the observations of Commissioner Maambong that the affidavits appear contrived as they are "1. Form Affidavits (computerized print-outs) in Pilipino, containing the same wordings, except the blank spaces in paragraph 1 and paragraph 2, filled up with the same date "April 17" and "May 17", respectively, notarized by the same Notary Public (Donato G. Mabbayao, Jr.) on the same date (June 4, 1995 [about a month after the elections]). 10 The "handwritten admissions" of alleged flying voters Ponciano Velasquez and Lito Ramirez stating that they were paid P300.00 each to vote for Blanco (Exhs. "F-3" and "F-4") are likewise doubtful. Save for the names of the supposed flying voters, the wordings of the two "handwritten admissions" are exactly the same, including the alleged residence of the said flying voters, i.e., Bo. Malhacan, Meycauayan, Bulacan. However, both the criminal complaints and the affidavit of Barangay Captain Romeo Garcia state that Ponciano Velasquez is a native of Lupacan, Tiaong, Quezon, and a resident of Lolomboy, Bucaue, Bulacan, while Lito Ramirez is a native of Rosario, Batangas, and a resident of Zamora, Meycauayan, Bulacan. It is thus apparent that they are not actually residents of Bo. Malhacan, Meycauayan, Bulacan, as stated in their respective "handwritten admissions." Could it then be that the "handwritten admissions" were dictated or were actually written by other persons, for how could Ponciano Velasquez and Lito Ramirez make a mistake with their respective addresses? For sure, the affidavit of Barangay Captain Romeo C. Garcia stating that he retrieved two (2) envelopes with P300.00 each from flying voters Ponciano Velasquez and Lito Ramirez and turned them over to the police (Exh. "F-5") is not an evidence that Blanco engaged in or knew about and consented to the alleged vote-buying. Thus even the affidavit of Romeo Burgos executed before Notary Public Donato G. Mabbayao, Jr., together with all the other affidavits sworn before the same Notary Public, spawns serious

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doubt as it was notarized only on 4 June 1995 - almost a month after the petition to disqualify Blanco was filed. In fine, I do not find any competent substantial evidence to link Blanco to the alleged votebuying, much less the alleged massive vote-buying. At best respondent Alarilla would indulge in presumptions which, unfortunately, cannot be sufficient basis to unseat his political rival who obtained 29,753 votes as against his 23,038 votes. The pieces of evidence presented by Alarilla, to my mind, are too inadequate to support his stance. It may be true that the electoral aspect of vote-buying may be determined in an administrative proceeding that is summary in character and where technical rules of evidence may not be applied rigorously. Yet, caution should not be thrown to the winds especially here where the two opposing factions that have been hotly contesting the same post are known to have formidable followers, for it would not be difficult to manufacture spurious affidavits and even real evidence. It is imperative to scrutinize carefully the evidence presented by Alarilla to determine whether they are relevant evidence which a reasonable mind might accept as adequate to support the conclusion that Blanco indeed bought votes. The disqualification of Blanco should come from the strength of the evidence of Alarilla, not from the weakness of the former's defense. Upon scrutiny, I submit that the pieces of evidence submitted by Alarilla have not met the mandated standard. The evidence presented in my opinion falls on its own weight as it fails to show that Blanco himself bought votes or that he was aware of and consented to any vote-buying. In view of the foregoing. I VOTE TO SET ASIDE AND REVERSE THE RESOLUTION OF RESPONDENT COMELEC DISQUALIFYING PETITIONER BLANCO AS A CANDIDATE FOR THE OFFICE OF MAYOR OF MEYCAUAYAN, BULACAN, for having allegedly violated Sec. 261, par. (a), of BP 881. It is my view that respondent COMELEC gravely abused its discretion when it based its findings on unfounded assumptions and unsubstantiated allegations. BELLOSILLO, J.: concurring and dissenting I find difficulty in concurring with the majority that the COMELEC order disqualifying Blanco is based on substantial evidence; therefore I vote to set aside that order. I however join the majority opinion that, as a result of the disqualification of Blanco, the Labo doctrine 1should apply. The law on vacancies and succession of elective local officials is very clear. Section 44 (a), Chapter 2, R.A. No. 7160, otherwise known as The Local Government Code of 1991, provides that "[i]f a permanent vacancy occurs in the office of the . . . mayor, the . . . vice mayor concerned shall become the . . . mayor." Paragraph 2 of the same provision states that "a permanent vacancy arises when an elective local official . . . fails to qualify . . . . These provisions are echoed in Art. 83 of the Implementing Rules and Regulations of the Local Government Code of 1991. When the language of the law is clear, explicit and unequivocal, it admits no room for interpretation, but simply application. This is a basic legal precept. In the issue at hand, I find

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no necessity to make distinctions as the applicable law is clear. Accordingly, considering that Blanco has been adjudged by the majority to be disqualified, he comes within the purview of "fail(ing) to qualify" for the said office. And since a "permanent vacancy" has occurred in the office of the mayor, Nolasco who is the duly elected vice mayor, and who now occupies the position of mayor in an acting capacity, should succeed as provided for by law. And this is in consonance with the pronouncements of this Court in Geronimo v. Ramos2 and Topacio v. Paredes 3 which were reiterated in Labo v. COMELEC 4 . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a plurality of the legal votes cast in the election (20 Corpus Juris 2nd, 243, p. 676). The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office . . . . The rightful assumption of Nolasco to the office of mayor is however only a consequence of the disqualification of Blanco to which I dissent. For, I do not agree with the submission that the COMELEC order disqualifying Blanco is based on substantial evidence. While the dossier of evidence submitted by Alarilla to show that Blanco committed massive vote-buying may appear at first blush to be overwhelming, a careful scrutiny of each piece of evidence does not measure up. I simply find no evidence to link Blanco to the alleged vote-buying. Consequently, I agree with Commissioner Maambong that Alarilla has failed to substantiate his allegation that Blanco engaged in or had knowledge of and consented to the buying of votes. Alarilla relies on several affidavits narrating incidents to prove that Blanco supposedly bought votes. But aside from the inaccuracies and the doubtful origin of these affidavits, which were executed only about a month after the petition to disqualify Blanco was filed, using fill-in-theblanks forms, none of the affiants was presented before respondent COMELEC to substantiate the allegations. 5 At the very least, some affiants should have been presented in the hearings supposedly conducted. In his Petition (to disqualify Blanco), Alarilla alleged that "[w]hen the said PNP composite team examined the ten (10) black plastic bags, they found out that each bag contained then (10) shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay envelope when opened contained the amount of P1,000.00. When questioned, respondent's brother (Mariano P. Blanco) and respondent's wife allegedly admitted to the raiding team that the total amount of money in the ten (10) plastic bags is (was) P10,000,000.00." 6

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But Alarilla has miserably failed to substantiate his allegations. He merely presented the sworn statement of Orlando Mauricio y Labora who claims to have filmed the raid. But the statements of Mauricio are not even consistent with the allegations of Alarilla in his Petition to disqualify Blanco. In his Petition, Alarilla claims that each "pay envelope" contained P1,000.00, 7 while in the affidavit of Mauricio it is stated that there were envelopes which contained P2,000.00 (Exh. "A-3"). Alarilla should have presented at least one (1) member of the PNP raiding team who supposedly examined the ten (10) black plastic bags and questioned Blanco's brother and wife as to the amount of the supposed money. In the absence of a credible testimony, the alleged admission of the brother and wife of Blanco that "the total amount of money in the ten (10) plastic bags is P10,000,000.00" becomes quite doubtful. For, the imputed admission is simply contrary to human nature and experience. If there really was P10,000,000.00 in the plastic bags, there was no need to divulge the amount to the raiding team. The Blancos could have just kept quiet and let the raiding team count the money. The video tape marked Exh. "A-1" could not be of any help to Alarilla as its contents were not even viewed by the COMELEC; 8 neither the photograph of a cover of one of the shoe boxes with the words "LAWA" and "TEACHERS" (Exh. "C"), nor the photograph of an envelope with the inscription "VOTE!!! TINOY!!!" (Exh. "D"), which by themselves mean nothing. Suffice it to say that these pieces of evidence are miserably insufficient to link Blanco to the alleged votebuying. The same is true with the MTB identification card with perforation in the middle portion with the inscription "Office Copy" on the right half of the card (Exh. "E"); it cannot by itself be evidence of vote-buying. On its face it is simply an evidence of membership with the Movement for Tinoy Blanco Volunteers and the "Office Copy" may only be for the files of the office. Certainly it may be speculated that these identification cards may somehow be used to carry out a vote-buying scheme. But speculations that they are, it is still difficult to surmise how they could ensure that the cardholders would surely vote for Blanco. Even the uniform claim of the nine (9) individuals who filled out computerized print-outs stating that they received MTB identification cards and envelopes containing P300.00 each from the henchmen of Blanco and for the "Office Copy" of their respective MTB cards, and that petitioner Blanco himself promised to give them additional P200.00 in exchange for the other half of their MTB cards after the elections, if he won as Mayor (Exhs. "E-2" to "E-10"), deserves scant consideration. These statements are contrary to the allegations in the petition to disqualify Blanco where it is alleged that MTB cardholders were initially given P500.00 and promised another P500.00. 9 I cannot disagree with the observations of Commissioner Maambong that the affidavits appear contrived as they are "1. Form Affidavits (computerized print-outs) in Pilipino, containing the same wordings, except the blank spaces in paragraph 1 and paragraph 2, filled up with the same date "April 17" and "May 17", respectively, notarized by the same Notary Public (Donato G. Mabbayao, Jr.) on the same date (June 4, 1995 [about a month after the elections]). 10 The "handwritten admissions" of alleged flying voters Ponciano Velasquez and Lito Ramirez stating that they were paid P300.00 each to vote for Blanco (Exhs. "F-3" and "F-4") are likewise doubtful. Save for the names of the supposed flying voters, the wordings of the two "handwritten admissions" are exactly the same, including the alleged residence of the said flying voters, i.e., Bo. Malhacan, Meycauayan, Bulacan. However, both the criminal complaints and the affidavit of Barangay Captain Romeo Garcia state that Ponciano Velasquez is a native of Lupacan, Tiaong, Quezon, and a resident of Lolomboy, Bucaue, Bulacan, while Lito Ramirez Page 312 of 492

is a native of Rosario, Batangas, and a resident of Zamora, Meycauayan, Bulacan. It is thus apparent that they are not actually residents of Bo. Malhacan, Meycauayan, Bulacan, as stated in their respective "handwritten admissions." Could it then be that the "handwritten admissions" were dictated or were actually written by other persons, for how could Ponciano Velasquez and Lito Ramirez make a mistake with their respective addresses? For sure, the affidavit of Barangay Captain Romeo C. Garcia stating that he retrieved two (2) envelopes with P300.00 each from flying voters Ponciano Velasquez and Lito Ramirez and turned them over to the police (Exh. "F-5") is not an evidence that Blanco engaged in or knew about and consented to the alleged vote-buying. Thus even the affidavit of Romeo Burgos executed before Notary Public Donato G. Mabbayao, Jr., together with all the other affidavits sworn before the same Notary Public, spawns serious doubt as it was notarized only on 4 June 1995 - almost a month after the petition to disqualify Blanco was filed. In fine, I do not find any competent substantial evidence to link Blanco to the alleged votebuying, much less the alleged massive vote-buying. At best respondent Alarilla would indulge in presumptions which, unfortunately, cannot be sufficient basis to unseat his political rival who obtained 29,753 votes as against his 23,038 votes. The pieces of evidence presented by Alarilla, to my mind, are too inadequate to support his stance. It may be true that the electoral aspect of vote-buying may be determined in an administrative proceeding that is summary in character and where technical rules of evidence may not be applied rigorously. Yet, caution should not be thrown to the winds especially here where the two opposing factions that have been hotly contesting the same post are known to have formidable followers, for it would not be difficult to manufacture spurious affidavits and even real evidence. It is imperative to scrutinize carefully the evidence presented by Alarilla to determine whether they are relevant evidence which a reasonable mind might accept as adequate to support the conclusion that Blanco indeed bought votes. The disqualification of Blanco should come from the strength of the evidence of Alarilla, not from the weakness of the former's defense. Upon scrutiny, I submit that the pieces of evidence submitted by Alarilla have not met the mandated standard. The evidence presented in my opinion falls on its own weight as it fails to show that Blanco himself bought votes or that he was aware of and consented to any vote-buying. In view of the foregoing. I VOTE TO SET ASIDE AND REVERSE THE RESOLUTION OF RESPONDENT COMELEC DISQUALIFYING PETITIONER BLANCO AS A CANDIDATE FOR THE OFFICE OF MAYOR OF MEYCAUAYAN, BULACAN, for having allegedly violated Sec. 261, par. (a), of BP 881. It is my view that respondent COMELEC gravely abused its discretion when it based its findings on unfounded assumptions and unsubstantiated allegations. Endnotes: 1 A third candidate, Mauro SC del Rosario received 6,359 votes.

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2 Blanco submitted his position paper on June 5, 1995. 3 Composed of Presiding Commissioner Regalado E. Maambong and Commissioners Graduacion A. Reyes-Claravall and Julio F. Desamito with Commissioner Maambong dissenting. 4 He filed a Motion to Admit Intervenor's Motion for Reconsideration on August 18, 1995. 5 G.R. No. 122258. 6 G.R. No. 122250. 7 176 SCRA 1. 8 See section 4 of COMELEC Rules of Procedure. 9 Lacson v. COMELEC, G.R. No. L-16261, December 28, 1951. 10 See p. 27 of his August 15, 1995 Concurring and Dissenting Opinion. 11 See pp. 50-53 of August 15, 1995 Resolution. 12 Lozano v. Yorac, 203 SCRA 256. 13 The same plea is made by Blanco in his petition. 14 254 SCRA 514 (1996). 15 Supra. 16 22 SCRA 505. Bellosillo, J.; concurring and dissenting 1 G.R. No. 86564, 1 August 1989, 179 SCRA 1, 21. 2 G.R. No. 60504, 14, May 1985, 136 SCRA 435. 3 23 Phil. 238 (1912). 4 See Note 1. 5 See Dissenting Opinion of Commissioner Maambong, p. 23; Rollo of G.R. No. 122258, p. 142. 6 Petition (to disqualify Meycauayan, Bulacan, moyaralty candidate Florentino P. Blanco), par. 13, p. 4; Rollo, G.R. No. 122250, p. 26.

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7 Ibid. 8 See Concurring and Dissenting Opinion of Commissioner Maambong in the Resolution of 15 August 1995 of the COMELEC, (First Division), p. 3; Rollo, G.R. No. 122258, p. 63. 9 See Note 5. 10 Id., p. 43; Id., p. 103.

EN BANC [G.R. Nos. L-68379-81. September 22, 1986.] EVELIO B. JAVIER, Petitioner, v. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, Respondents. Raul S. Roco and Lorna Patajo-Kapunan for Petitioner. SYLLABUS 1. REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT A CASE OF. — The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent — both of whom have gone their separate ways — could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. 2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO HEAR AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED THERETO. — We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. 3. ID.; ID.; "CONTEST" ; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. — The word

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"contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claims as title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. 4. ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME SENSE UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. — The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee’s title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his delivery or ineligibility or the inadequacy of his certificate of candidacy. 5. ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. — All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. 6. ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY SITTING EN BANC; PURPOSE. — As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are alltoo-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent’s theory would make this gambit possible for the pre-proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the cause and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. 7. ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. — Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased.

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8. ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF DUE PROCESS. — This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. 9. ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR PLAY. — Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. 10. ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF DELICADEZA. — The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar’s wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceedings null and void. FELICIANO, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC. — Although this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in law. J. Feliciano reaches this result on the same single, precisely drawn, ground relied upon by Melencio-Herrera, J., that all election contests involving members of the former Batasan Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These Sections do not distinguish between "pre-proclamation" and "postproclamation" contests nor between "cases" and "contests."cralaw virtua1aw library MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA. — I concur in the result. The

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questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the legal reason that all election contests, without distinction as to cases or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution.

DECISION CRUZ, J.: The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that, Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied. The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter’s men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party. It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent’s proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa. The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that

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strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent — both of whom have gone their separate ways — could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the decision and provoked the resentments of the people. Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy. Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court. Alleging serious anomalies in the conduct of the elections and the canvass of the election

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returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Lauaan, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or manila paper. On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6 This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7 The petitioner then came to this Court, asking us to annul the said decision. The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election?chanrobles.com:cralaw:red The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution. Section 2 confers on the Commission on Elections the power to:jgc:chanrobles.com.ph "(2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials."cralaw virtua1aw library Section 3 provides:jgc:chanrobles.com.ph "The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision."cralaw virtua1aw library While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive

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and in part even erudite. And well they might be, for the noble profession of the law — despite all the canards that have been flung against it — exerts all efforts and considers all possible viewpoints in its earnest search of the truth. The petitioner complains that the proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be — in fact, should be — filed with and decided only by any of the three divisions. The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest. A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases."cralaw virtua1aw library As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including pre-proclamation controversies and up to the election protest, In doing so, it would exercise first administrative and then judicial

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powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power. This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners.chanrobles virtual lawlibrary It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided:jgc:chanrobles.com.ph "Sec. 175. Suspension and annulment of proclamation. — The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof."cralaw virtua1aw library Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the preproclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial. Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12 The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article

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XII-C of the Constitution. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee’s title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-theproclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent’s theory would make this gambit possible for the pre-proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. It may be argued that in conferring the initial power to decide the pre-proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission. A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution.

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Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc v. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14 Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion’s refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision.chanroblesvirtualawlibrary This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar’s wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17

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Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the records of this case to the archives and say the case is finished and the book is closed. But not yet. Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and allexacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions."cralaw virtua1aw library A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, ‘Before I die, I would like to see justice to my son and grandsons,’ May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." chanrobles law library : red That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed. WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted

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and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution. SO ORDERED. Feria, Yap, Narvasa, Alampay and Paras, JJ., concur. Teehankee, C.J., I concur and reserve the filing of a separate concurrence. Fernan and Gutierrez, Jr., JJ., concur in the result. Separate Opinions MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the legal reason that all election contests, without any distinction as to cases or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution. FELICIANO, J., concurring:chanrob1es virtual 1aw library I agree with the result reached, that is, although this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the Province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in law. I reach this result on the same single, precisely drawn, ground relied upon by MelencioHerrera, J.: that all election contests involving members of the former Batasan Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These Sections do not distinguish between "pre-proclamation" and "post-proclamation" contests nor between "cases" and "contests."cralaw virtua1aw library Endnotes:

1. Rollo, p. 26. 2. Rollo, p. 26. 3. Ibid., p. 9; p. 28. 4. Id., p. 30. 5. Id., p. 30.

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6. Id., p. 62. 7. Id., p. 62; pp. 107-111. 8. Id., pp. 11-16; pp. 196-208. 9. Art. XII-C, Sec. 2(1), 1973 Constitution. 10. Vera v. Avelino, 77 Phil. 191. 11. Art. XII-C, Sec. 3, 1973 Constitution. 12. Election Code of 1971, Sec. 219. 13. 88 SCRA 251. 14. Rollo, pp. 109-111. 15. Mateo v. Villaluz, 50 SCRA 18; Gutierrez v. Santos, 2 SCRA 249. 16. People v. Opida, G.R. No. L-46272, July 13, 1986, citing Fernandez v. Presbitero, 79 SCRA 61; Sardinia-Linco v. Pineda, 104 SCRA 757. 17. Comelec Res. No. 1669, Sec. 5.

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EN BANC [G.R. No. 120265. September 18, 1995.] AGAPITO A. AQUINO, Petitioner, v. COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO, Respondents. Haydee B. Yorac, R.A.V. Saguisag and Clarence D. Guerrero for Petitioner. Felix D. Carao, Jr., collaborating counsel for Petitioner. Pete Quirino Quadra for private respondents Move Makati and Mateo B. Bedon. SYLLABUS 1. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION OVER QUALIFICATION CASES OF CANDIDATES FOR MEMBERS OF HOUSE OF REPRESENTATIVES; CONTINUES EVEN AFTER THE ELECTION. — Petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of petitioner’s qualifications to run for member of the House of Representatives. He claims that jurisdiction over the petition for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet — unresolved question of jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in directing the suspension of his proclamation as the winning candidate in the Second Congressional District of Makati City. We disagree. Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. Under Section 17 of Article VI of the 1987 Constitution, the Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. The electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to Section 17 of Article VI of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with Page 328 of 492

Sec. 6 of RA. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner’s contention that "after the conduct of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis in law, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of candidates. 2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVES; QUALIFICATION OF CANDIDATES FOR MEMBERS; RESIDENCY REQUIREMENT; CANDIDATE MUST PROVE THAT HE HAS ESTABLISHED NOT JUST RESIDENCE BUT DOMICILE OF CHOICE. — Clearly, the place "where a party actually or constructively has his permanent home," where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego v. Vera, (73 Phil. 453 [1941]) is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident for a period of one year in the area now encompassed by the Second Legislative District of Makati at the time of his election or whether or not he was domiciled in the same. 3. ID.; ID.; ID.; ID.; ID.; RESIDENCE SYNONYMOUS WITH DOMICILE FOR ELECTION PURPOSES. — We agree with COMELEC’s contention that in order that petitioner could qualify as a candidate for Representative of the Second District of Makati City the latter "must prove that he has established not just residence but domicile of choice." The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in which he seeks election for a period of not less than one (1) year prior to the elections. Residence, for election law purposes, has a settled meaning in our jurisdiction. In Co v. Electoral Tribunal of the House of Representatives (199 SCRA 692 [1991]) this Court held that the term "residence" has always been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution. 4. ID.; ID.; ID.; ID.; ID.; CLEAR AND POSITIVE PROOF SHOWING A SUCCESSFUL ABANDONMENT OF DOMICILE MUST BE ESTABLISHED; CASE AT BAR. — While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of the condominium unit in Makati (and the fact, of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical residence" is not to acquire a new residence or domicile "but only to qualify as a candidate for Representative of the Second District of Makati City." The absence of

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clear and positive proof showing a successful abandonment of domicile under the conditions stated above, the lack of identification — sentimental, actual or otherwise — with the area, and the suspicious circumstances under which the lease agreement was effected all belie petitioner’s claim of residency for the period required by the Constitution, in the Second District of Makati. As the COMELEC en banc emphatically pointed out: [T]he lease agreement was executed mainly to support the one year residence requirement as a qualification for a candidate of Representative, by establishing a commencement date of his residence. If a perfectly valid lease agreement cannot, by itself establish a domicile of choice, this particular lease agreement cannot do better. Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. These requirements are hardly met by the evidence adduced in support of petitioner’s claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin should be deemed to continue. 5. ID.; ELECTORAL REFORM LAW OF 1987 (R.A. 6646); EFFECT OF DISQUALIFICATION; OBTAINING THE HIGHEST NUMBER OF VOTES WILL NOT RESULT IN THE SUSPENSION OR TERMINATION OF THE PROCEEDINGS WHEN THE EVIDENCE OF GUILT IS STRONG. — Under Section 6 of R.A. 6646, not only is a disqualification case against a candidate allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under Section 78 of B.P. 881. 6. ID.; INELIGIBILITY OF CANDIDATE; DOES NOT ENTITLE THE ELIGIBLE CANDIDATE RECEIVING THE NEXT HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED. — In the more recent cases of Labo, Jr. v. Comelec (176 SCRA 1 [1989]). Abella v. Comelec (201 SCRA 253 [1991]); and Benito v. Comelec, (235 SCRA 436 [1994]), this Court reiterated and upheld the ruling in Topacio v. Paredes, and Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving the majority votes does not entitle the eligible candidate receiving the next higher number of votes to be declared elected, and that a minority or defeated candidate cannot be declared elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v. Ramos that: The fact that a candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in sincere belief that that candidate was alive, qualified, or eligible; they should not be treated as stray, void or meaningless. PADILLA, J., separate concurring opinion:chanrob1es virtual 1aw library

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1. ELECTION LAW; QUALIFICATION OF CANDIDATES; RESIDENCY REQUIREMENT; CANDIDATE MUST PROVE THAT HE HAD ACTUALLY AND PHYSICALLY RESIDED IN THE PLACE TO BE VOTED UPON. — In G.R. No. 119976, Marcos v. Comelec, J. Padilla have maintained that the phrase "a resident thereof for a period of not less than one year" means actual and physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person’s residence or domicile coincides. To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections. Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never have become his domicile of choice because it never entered his mind and suddenly, seemingly not contented with these residences, he rents a condominium unit in Makati, and calls it his domicile of choice — all these without adding clear and convincing evidence that he did actually live and reside in Makati for at least one year prior to 8 May 1995 — and that he no longer lived and resided in his other residences during said one year period. It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioner actually and physically resided therein for the same period, in the light of his admission that he maintained other residences in Metro Manila. 2. ID.; DISQUALIFICATION OF CANDIDATES; VOTES CAST IN FAVOR OF SAID CANDIDATE SHALL NOT BE COUNTED. — J. Padilla agrees with the proposition advanced by the Solicitor General that Sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate shall not be counted. There can be no dispute that if a final judgment is rendered before the election, declaring a particular candidate as disqualified, such disqualified candidate shall not be voted for and votes cast for him shall not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates. But what about after the election? Sec. 6 appears categorical enough in stating: "if for any reason" no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidence of guilt is strong. It thus appear clear that the law does not dichotomize the effect of a final judgment of disqualification in terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall not be voted and, if voted, the votes case for him shall not be counted. Ubi lex non ditinguit nec nos distinguere debemus (where the law does not distinguish, we should not distinguish.) 3. ID.; ID.; ID.; CANDIDATE WHO RECEIVED THE HIGHEST NUMBER OF VOTES SHOULD BE PROCLAIMED. — At this point, what J. Padilla said in Marcos, supra, follows: "What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidates is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for

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the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution." Therefore the candidate who received the highest number of votes from among the qualified candidates, should be proclaimed. FRANCISCO, J., concurring and dissenting opinion:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL; PROCLAMATION OF WINNER IN THE CONTESTED ELECTION AN ESSENTIAL REQUISITE TO VEST JURISDICTION THEREON. — Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the members of the House of Representatives. The operative acts necessary for an electoral candidate’s rightful assumption of the office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to declare his disqualification and invoking instead Here’s jurisdiction, it indubitably appearing that he has yet to be proclaimed, much less has he taken an oath of office. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of Procedure, and HRET decisions consistently holding that the proclamation of a winner in the contested election is the essential requisite vesting jurisdiction on the HRET. 2. ID.; ID.; HOUSE OF REPRESENTATIVES QUALIFICATION OF MEMBERS; RESIDENCY REQUIREMENT; DECISION TO TRANSFER LEGAL RESIDENCE MUST BE BONA FIDE AND UNEQUIVOCAL. — Petitioner insists that domicile is a matter of personal intention. Thus, petitioner asserts that if he decides to transfer his legal residence so he can qualify for public office then he is entirely free to do so. This argument to hold water, must be supported by clear and convincing proofs that petitioner has effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemed lost until a new one is established (Co. v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last election as senator has consistently maintained Conception, Tarlac, as his domicile. He moved to Ampoule Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim, however, is dismally unsupported by the records. The lease contract entered into by petitioner for a period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The intention to establish domicile must be an intention to remain indefinitely or permanently in the new place. This element is lacking in this instance. Worse, public respondent Commission even found that "respondent AQUINO himself testified that his intention was really for only one (1) year because he has other ‘residences’ in Manila or in Queen City ([citing TN, May 2, 1995, p. 92)." Noting that petitioner is already barred from running for senator due to the constitutional consecutive two-term limit, his search for a place where he could further and continue his political career and sudden transfer thereto make his intent suspect. The best test of intention to establish legal residence comes from one’s acts and not by mere declarations alone. To acquire, to effect a change of domicile, the intention must be bona fide and unequivocal (28 C.C.S. 11). Petitioner, in my view, miserably failed to show a bona fide and

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unequivocal intention to effect the change of his domicile. 3. ID.; ID.; ID.; ID.; RULES PROVIDED BY THE CONSTITUTION NOT BRUSHED ASIDE BY THE ENACTMENT OF R.A. No. 7854. — The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency. Petitioner explains his theory in this wise: ". . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER’S DISTRICT IN MAKATI." Apparently, this theory is an offshoot of Republic Act No. 7854, an act converting the municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995, established a Second Congressional district in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner’s acts, however, as borne by the records, belie his own theory. Originally, he placed in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year and thirteen (13) days to correct what he claims as a mere inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely four-month old Makati district. The amendment only reveals the true intent of petitioner to comply with the one year constitutional requirement for residence, adding an extra thirteen (13) days for full measure. Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same time played it safe in the other (the constitutional one year residence requirement). And that is not all. If we were to adhere to petitioner’s theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying voters — one of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner’s contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or revision of the constitution outlined under Article VIII of the 1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic law of the land to which every state must conform and harmonize. 4. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION THEREOF CANNOT BE QUESTIONED IF THE PARTY ACTIVELY PARTICIPATED IN THE PROCEEDINGS THEREIN. — It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision. Perforce, petitioner’s asseverating that the COMELEC has no jurisdiction to rule on his qualification must fail. 5. ID.; DISQUALIFICATION OF CANDIDATE; VOTES CAST IN HIS FAVOR SHALL NOT BE COUNTED. — It has been contended that a second place candidate cannot be proclaimed a substitute winner. Justice Francisco finds the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner

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receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, Petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who garnered the highest number of votes should be proclaimed the duly elected representative of the district. Justice Francisco feels that the Labo doctrine ought to be abandoned. DAVIDE, JR., J., dissenting opinion:chanrob1es virtual 1aw library 1. ELECTION LAWS; OMNIBUS ELECTION CODE (BATASANG PAMBANSA 881); PETITION TO DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDACY; RULE PROVIDED UNDER SECTION 78 THEREOF NOT SUPERSEDED BY RULE 25 OF THE COMELEC RULES OF PROCEDURE. — The petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due course to or cancel a certificate of candidacy under Section 78. Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material representation contained in the petitioner’s certificate of candidacy is false. What is being attacked therein is the petitioner’s lack of the one-year residence qualification in the new Second Legislative District of Makati City where he sought to be elected for the office of Congressman. The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The amendment allows the filing of a petition to disqualify a candidate on the ground that he does not possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualification based on the commission of any act declared by law to be a ground for disqualification. The rule as thus amended now reads as follows: Rule 25 — Disqualification of Candidates SECTION 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. The italicized portion is the amendment to Rule 25, which the COMELEC must have deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the light of this Court’s interpretation in Loong v. Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Section 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as follows: We do not agree with private respondent Ututalum’s contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be ground for disqualification may be disqualified from continuing as a candidate. The grounds for disqualification is expressed in Sections 12 and 68 of the Code. The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification

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as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment. 2. ID.; ELECTORAL REFORMS LAW OF 1987 (R.A. 6646); PETITION TO DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDATES; "PROCEDURE HEREINABOVE PROVIDED" MENTIONED UNDER SECTION 7 REFERS TO THE EFFECT OF DISQUALIFICATION CASES. — Even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise, for both cases necessarily require that they be decided before the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter. 3. ID.; ID.; EFFECTS OF DISQUALIFICATION; RULE PROVIDED UNDER SECTION 6 MERELY SUPPLEMENTS SECTION 72 OF THE OMNIBUS ELECTION CODE. — Section 6 merely supplements Section 72 of the Omnibus Election Code by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority opinion ‘ "the phrase ‘when the evidence of guilt is strong’ seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code."cralaw virtua1aw library 4. ID.; ID.; ID.; COMELEC NOT AUTHORIZED TO CONTINUE HEARING THE CASE AFTER THE ELECTION EVEN WITH THE AMENDMENT OF RULE 25 OF THE COMELEC RULES OF PROCEDURE. — The amended Rule 25 of the COMELEC Rules of procedure, which is the only rule governing petitions filed before election or proclamation for the disqualification of a candidate on the ground that he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue hearing the case after the election. 5. ID.; ID.; ID.; RULE CANNOT BE APPLIED TO A CASE WHICH DOES NOT INVOLVE REGIONAL, PROVINCIAL AND CITY OFFICIALS AND WHERE SUSPENSION OF PROCLAMATION IS NOT WARRANTED BECAUSE OF ABSENCE STRONG EVIDENCE OF GUILT OR INELIGIBILITY. — Even assuming that the second sentence of Section 6 of R.A. No. 6646 is applicable to disqualification cases based on the ground of lack of qualification, it cannot be applied to a case which does not involve elective regional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strong evidence of guilt or ineligibility. In such a case, the candidate sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot

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continue with the case, and the remedy of the opponent is to contest the winning candidate’s eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the regional trial courts, in the case of municipal officials (Section 2[2], Article IX-C, Constitution; Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the Supreme Court en banc, in the case of the President or VicePresident (Section 4, Article VII, Constitution). If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified, proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2[2], Article IX-C, Constitution; Section 253, B.P. Blg. 881). But even granting for the sake of argument that Sections 6 and 7 of RA. No. 6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioner’s proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of any claim that the evidence of the petitioner’s guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of the petitioner’s ineligibility is strong. It would have been otherwise if the Second Division had disqualified the petitioner. VITUG, J., separate opinion:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SCOPE OF POWER TO ENFORCE AND ADMINISTER ALL LAWS AND REGULATIONS RELATIVE TO THE CONDUCT OF ELECTION. — The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary, should include to its authority pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, pre-proclamation controversies are expressly placed under the COMELEC’s jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). 2. ID.; ID.; FINDINGS AND JUDGMENT THEREOF NOT REVIEWABLE BY THE COURT EXCEPT IN CASE OF GRAVE ABUSE OF DISCRETION. — The matter before us specifically calls for the observance of the constitutional one-year residency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. 3. ELECTION LAWS; QUALIFICATION OF CANDIDATES; RESIDENCE; SYNONYMOUS WITH DOMICILE. — Justice Vitug does not find much need to do a complex exercise on what seems to him to be a plain matter. Generally. the term "residence" has a broader connotation that may mean permanent (domicile), official (place where one’s official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time.) For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil

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obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez v. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408,409); thus: "In election cases, the Court treats domicile and residence as synonymous terms, thus: (t)he term ‘residence’ as used in the election law is synonymous with ‘domicile,’ which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention.’ ‘Domicile’ denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual."cralaw virtua1aw library 4. ID.; COMMISSION ON ELECTIONS; PROCLAMATION OF CANDIDATE, NOT MERELY A MINISTERIAL FUNCTION. — The COMELEC’s jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. He believes, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done. 5. ID.; DISQUALIFICATION OF CANDIDATE; DOES NOT ENTITLE THE CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF VOTES TO BE DECLARED WINNER. — There the Court held in Geronimo v. Ramos, (136 SCRA 435): ". . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.’Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.’

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MENDOZA, J., separate opinion:chanrob1es virtual 1aw library 1. ELECTION LAW; ELECTORAL REFORM LAW OF 1987 (R.A. 6646) EFFECT OF DISQUALIFICATION CASES; SUSPENSION OF PROCLAMATION APPLIES TO THOSE WHO ARE GUILTY OF USING "GUNS, GOONS OR GOLD" TO INFLUENCE THE OUTCOME OF ELECTIONS. — The May 15, 1995 resolution of the COMELEC en banc, suspending the proclamation of petitioner should he obtain the highest number of votes for Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant to 6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision refers to proceedings under §68 of the Omnibus Election Code which provides for the disqualification of candidates found guilty of using what in political parlance have been referred to as "guns, goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the application of 6 of R.A. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC. 2. ID.; ID.; ID.; CANDIDATE OBTAINING THE NEXT HIGHEST NUMBER OF VOTES, ENTITLED TO BE DECLARED THE WINNER. — In the event the candidate who obtained the highest number of votes is declared ineligible, the one who received the next highest number of votes is entitled to be declared the winner. 3. ID.; OMNIBUS ELECTION LAW (BP 881); PETITION TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF CANDIDACY; MAY BE FILED EXCLUSIVELY ON THE GROUND THAT A MATERIAL REPRESENTATION CONTAINED IN THE CERTIFICATE IS FALSE. — The petition to disqualify petitioner in the COMELEC may not be justified under 78 of the OEC which authorizes the filing of a petition for the cancellation of certificates of candidacy since such a petition may be filed "exclusively on the ground that a material representation contained [in the certificate] as required under Section 74 is false. "There was no allegation that in stating in his certificate of candidacy that he is a resident of Ampoule St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation. DECISION KAPUNAN, J.: The sanctity of the people’s will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic voice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate’s qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions. On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of Representative for the new Second Legislative District of Makati City. Among

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others, Aquino provided the following information in his certificate of candidacy, viz.:chanrob1es virtual 1aw library (7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM VILLAGE, MAKATI. x

x

x

(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: ____ Years and 10 Months x

x

x

THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey the law, rules and decrees promulgated by the duly constituted authorities; That the obligation imposed to such is assumed voluntarily, without mental reservation or purpose of evasion, and that the facts therein are true to the best of my knowledge. 1 On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino 2 on the ground that the latter lacked the residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution, should be for a period not less than one (1) year immediately preceding the May 8, 1995 elections. The petition was docketed as SPA No. 95-113 and was assigned to the Second Division of the Commission on Elections (COMELEC). On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another certificate of candidacy amending the certificate dated March 20, 1995. This time, petitioner stated in Item 8 of his certificate that he had resided in the constituency where he sought to be elected for one (1) year and thirteen (13) days. 3 On May 2, 1995 petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the disqualification case. 4 On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified and presented in evidence, among others, his Affidavit dated May 2, 1995, 5 lease contract between petitioner and Leonor Feliciano dated April 1, 1994, 6 Affidavit of Leonor Feliciano dated April 28, 1995 7 and Affidavit of Daniel Galamay dated April 28, 1995. 8 After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution dated May 6, 1995, the decretal portion of which reads:chanrob1es virtual 1aw library WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to DISMISS the instant petition for Disqualification against respondent AGAPITO AQUINO and declares him ELIGIBLE to run for the Office of Representative in the Second Legislative District

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of Makati City. SO ORDERED. 9 On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May 6, 1995 resolution with the COMELEC en banc. Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates vied for the congressional seat in the Second District, petitioner garnered thirty eight thousand five hundred forty seven (38,547) votes as against another candidate, Agusto Syjuco, who obtained thirty five thousand nine hundred ten (35,910) votes. 10 On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the COMELEC’s Second Division resolution dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. On May 15, 1995, COMELEC en banc issued an Order suspending petitioner’s proclamation. The dispositive portion of the order reads:chanrob1es virtual 1aw library WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board of Canvassers of the City of Makati is hereby directed to complete the canvassing of election returns of the Second District of Makati, but to suspend the proclamation of respondent Agapito A. Aquino should he obtain the winning number of votes for the position of Representative of the Second District of the City of Makati, until the motion for reconsideration filed by the petitioners on May 7, 1995, shall have been resolved by the Commission. The Executive Director, this Commission, is directed to cause the immediate implementation of this Order. The Clerk of Court of the Commission is likewise directed to inform the parties by the fastest means available of this Order, and to calendar the hearing of the Motion for Reconsideration on May 17, 1995, at 10:00 in the morning, PICC Press Center, Pasay City. SO ORDERED. 11 On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension of proclamation. On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to Resolve Urgent Motion to Resolve Motion to Lift Suspension of Proclamation" wherein he manifested his intention to raise, among others, the issue of whether of not the determination of the qualifications of petitioner after the elections is lodged exclusively in the House of Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution. Resolving petitioner’s motion to lift suspension of his proclamation, the COMELEC en banc issued an Order on June 2, 1995, the decretal portion thereof reading:chanrob1es virtual 1aw library Pursuant to the said provisions and considering the attendant circumstances of the case, the Commission RESOLVED to proceed with the promulgation but to suspend its rules, to accept

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the filing of the aforesaid motion, and to allow the parties to be heard thereon because the issue of jurisdiction now before the Commission has to be studied with more reflection and judiciousness. 12 On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the Second Division dated May 6, 1995. The fallo reads as follows:chanrob1es virtual 1aw library WHEREFORE, in view of the foregoing, petitioners’ Motion for Reconsideration of the Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declared ineligible and thus disqualified as a candidate for the Office of Representative of the Second Legislative District of Makati City in the May 8, 1995 elections, for lack of the constitutional qualification of residence. Consequently, the order of suspension of proclamation of the respondent should he obtain the winning number of votes, issued by this Commission on May 15, 1995 is now made permanent. Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately reconvene and, on the basis of the completed canvass of election returns, determine the winner out of the remaining qualified candidates, who shall be immediately proclaimed. SO ORDERED. 13 Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995 as well as the resolution dated June 2, 1995 issued by the COMELEC en banc. Petitioner raises the following errors for consideration, to wit:chanrob1es virtual 1aw library A THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE DISQUALIFICATION ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITH THE HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL B ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TO THE ADVERSE PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE HRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION C THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION). DESPITE IT OWN RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY

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REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN DIRECTING WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS THE WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF THE DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY NOT TO THWART THE PEOPLE’S WILL D THE COMELEC’S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS AND JURISPRUDENCE E IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER’S DISTRICT IN MAKATI F THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION WHEN IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER OUT OF; THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS IN TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR A PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS SUBSTITUTE WINNER. 15 I In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of petitioner’s qualifications to run for member of the House of Representative. He claims that jurisdiction over the petition for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet-unresolved question of jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in directing the suspension of his proclamation as the winning candidate in the Second Congressional District of Makati City. We disagree. Petitioner conveniently confuses the distinction between an unproclaimed-candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. Section 17 of

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Article VI of the 1987 Constitution reads:chanrob1es virtual 1aw library The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed 16 and who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to Section 17 of Article VI of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B .P. 881 in conjunction with Sec. 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner’s contention that "after the conduct of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis in law, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of candidates. Section 6 states:chanrob1es virtual 1aw library SECTION 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section. 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under Section 78 of B .P. 881. Section 7 states:chanrob1es virtual 1aw library SECTION 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petition to deny due course to or cancel a certificate of candidacy based on Sec 78 of Batas Pambansa 881. II We agree with COMELEC’s contention that in order that petitioner could qualify as a candidate for Representative of the Second District of Makati City the latter "must prove that he has

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established not just residence but domicile of choice." 17 The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in which he seeks election for a period of not less than one (I) year prior to the elections. 18 Residence, for election law purposes, has a settled meaning in our jurisdiction. In Co v. Electrocal Tribunal of the House of Representatives 19 this Court held that the term "residence" has always been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution. The Court there held: 20 The deliberations of the Constitutional Commission reveal that the meaning of residence vis-avis the qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:chanrob1es virtual 1aw library Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of elections. So my question is: What is the Committee’s concept of residence for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof’, that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile (underscoring ours) Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87). x

x

x

Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner Nolledo has raised the same point that ‘resident’ has been interpreted at times as a matter of intention rather than actual residence. Mr. De Los Reyes: Domicile. Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But we might encounter some difficulty especially considering that the provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110). The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile.

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Clearly, the place "where a party actually or constructively has his permanent home," 21 where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs Vera 22 is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident for a period of one year in the area now encompassed by the Second Legislative District of Makati at the time of his election or whether or not he was domiciled in the same. As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992 elections, indicated not only that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately preceding that election. 23 At the time, his certificate indicated that he was also a registered voter of the same district. 24 His birth certificate places Concepcion, Tarlac as the birthplace of both of his parents Benigno and Aurora. 25 Thus, from data furnished by petitioner himself to the COMELEC at various times during his political career, what stands consistently clear and unassailable is that his domicile of origin of record up to the time of filing of his most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac. Petitioner’s alleged connection with the Second District of Makati City is an alleged lease agreement of a condominium unit in the area. As the COMELEC, in its disputed Resolution noted:chanrob1es virtual 1aw library The intention not to establish a permanent home in Makati City is evident in his leasing a condominium unit instead of buying one. While a lease contract may be indicative of respondent’s intention to reside in Makati City it does not engender the kind of permanency required to prove abandonment of one’s original domicile especially since, by its terms, it is only for a period of two (2) years, and respondent Aquino himself testified that his intention was really for only one(1) year, because he has other "residences" in Manila or Quezon City. 26 While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of the condominium unit in Makati (and the fact of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical residence" 27 is not to acquire a new, residence or domicile "but only to qualify as a candidate for Representative of the Second District of Makati City." 28 The absence of clear and positive proof showing a successful abandonment of domicile under the conditions stated above, the lack of identification — sentimental, actual or otherwise — with the area, and the suspicious circumstances under which the lease agreement

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was effected all belie petitioner’s claim of residency for the period required by the Constitution, in the Second District of Makati. COMELEC en banc emphatically pointed out:chanrob1es virtual 1aw library [T]he lease agreement was executed mainly to support the one year residence requirement as a qualification for a candidate of Representative, by establishing a commencement dated of his residence. If a perfectly valid lease agreement cannot, by itself establish a domicile of choice, this particular lease agreement cannot do better. 29 Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile, a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. 30 These requirements are hardly met by the evidence adduced in support of petitioner’s claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin should be deemed to continue. Finally, petitioner’s submission that it would be legally impossible to impose the one year residency requirement in newly created political district is specious and lacks basis in logic. A new political district is not created out of thin air. It is carved out from part of a real and existing geographic area, in this case the old Municipality of Makati. That people actually lived or were domiciled in the area encompassed by the new Second District cannot be denied. Modern-day carpetbaggers cannot be allowed take advantage of the creation of new political districts by suddenly transplanting themselves in such new districts, prejudicing their genuine residents in the process of taking advantage of existing conditions in these areas. It will be noted, as COMELEC did in its assailed resolution, that petitioner was disqualified from running in the Senate because of the constitutional two-term limit, and had to shop around for a place where he could run for, public office. Nothing wrong with that, but he must first prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law. This he has not effectively done. III The next issue here is whether or not the COMELEC erred in issuing it Order instructing the Board of Canvassers of Makati City to proclaim as winner the candidate receiving the next higher number of votes. The answer must be in the negative. To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates in the May 8, 1995 elections is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings behind voters’ preferences. The result suggested by private respondent would lead not only to our reversing the doctrines firmly entrenched in the two cases of Labo v. Comelec 31 but also to a massive disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they believed could be validly voted for during the elections. Had petitioner been disqualified before the elections, the choice, moreover, would have been different. The votes for Aquino given the acrimony which attended the campaign, would not have automatically gone to second placer Syjuco The nature of the playing field would have substantially changed. To simplistically

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assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. In these cases, the pendulum of judicial opinion in our country has swung from one end to the other. In the early case of Topacio v. Paredes 32 we declared as valid, votes cast in favor of a disqualified, ineligible or dead candidate provided the people who voted for such candidate believed in good faith that at the of the elections said candidate was either qualified, eligible or alive. The votes cast in favor of a disqualified, ineligible or dead candidate cannot be considered stray votes, consequently, the candidate who obtained the next higher number of votes cannot be proclaimed as winner. According to this Court in the said case, "there is not, strictly speaking, a contest, that the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving the plurality of the legally cast ballots."cralaw virtua1aw library Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in view of his unlawful change of party affiliation (which was then a ground for disqualification) cannot be considered in the canvassing of election returns and the votes fall into the category of invalid and nonexistent votes because a disqualified candidate is no candidate at all and is not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the only candidate left in the disputed position. In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who lost in an election cannot be proclaimed the winner in the event the candidate who ran for the position is ineligible. We held in Geronimo:chanrob1es virtual 1aw library [I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the elections. (20 Corpus Juris 2nd, S 243, p. 676.) However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo v. Ramos and pronounced that "votes cast for a disqualified candidate fall within the category of invalid or non-existent votes because a disqualified candidate is no candidate at all in the eyes of the law," reverting to our earlier ruling in Ticson v. Comelec. In the more recent cases of Labo, Jr. v. Comelec; 36 Abella v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving the majority votes does not entitle the eligible candidate receiving the next higher number of votes to be declared elected,

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and that a minority or defeated candidate cannot be declared elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v. Ramos that:chanrob1es virtual 1aw library The fact that a candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in sincere belief that candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39 While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent disqualification does not make respondent Ortega the mayor-elect. This is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that:chanrob1es virtual 1aw library While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes was counted and she obtained the highest number of votes. The net effect is that petitioner lost in the election. He was repudiated by the electorate. . . . What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility, requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position cannot assume the vacated position. (Emphasis supplied) Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the choice of the people of Baguio City. Thus, while respondent Ortega (G.R No. 105111) originally filed a disqualification case with the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner’s (Labo’s) candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for his disqualification having yet to attain the degree of finality (Sec. 78, Omnibus Election Code). And in the earlier case of Labo v. Comelec (supra), We held:chanrob1es virtual 1aw library Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the

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choice of the people of Baguio City. The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregarded as stray. In effect, the second placer won by default. That decisions was supported by eight members of the Court then (Cuevas J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino, JJ., concurring) with three dissenting (Teehankee, actingC.J., Abad Santos and Melencio- Herrera) and another two reserving their votes (Plana and Gutierrez, Jr.). One was on official leave (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes (23 Phil. 238) was supported by ten members of the Court . . . The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec. 149). It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office. Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can a minority or defeated candidate be deemed elected to the offices. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; G.R No. 105111). This, it bears repeating, expresses the more logical and democratic view. We cannot, in another shift of the pendulum, subscribe to the contention that the runner-up in an election in which the winner has been disqualified is actually the winner among the remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure American state and English court decisions. 40 These decisions neglect the possibility that the runner-up, though obviously qualified, could receive votes so measly and insignificant in number that the votes they receive would be tantamount to rejection. Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to proclaim the totally repudiated candidate as the voters’ "choice." Moreover, even in instances where the votes received by the second placer may not be considered numerically insignificant, voters preferences are nonetheless so volatile and unpredictable that the result

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among qualified candidates, should the equation change because of the disqualification of an ineligible candidate, would not be self-evident. Absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be construed to have obtained a majority or plurality of votes cast where an "ineligible" candidate has garnered either a majority or plurality of the votes. In fine, we are left with no choice but to affirm the COMELEC’s conclusion declaring herein petitioner ineligible for the elective position of Representative of Makati City’s Second District on the basis of respondent commission’s finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And. as petitioner clearly lacks one of the essential qualifications for running for membership In the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order restraining respondent COMELEC from proclaiming the candidate garnering the next highest number of votes in the congressional elections for the Second District of Makati City is made PERMANENT. SO-ORDERED. Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur. Feliciano, J., is on leave. Separate Opinions PADILLA, J., concurring:chanrob1es virtual 1aw library I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and convincing evidence that he had established his residence in the second district of Makati City for a period of not less than one (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to its proposition that petitioner’s residence (in Makati) should be his "domicile of choice" . Article VI, Section 6 of the Constitution provides that:jgc:chanrobles.com.ph "No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines and on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election." (Emphasis supplied) In G.R No. 119976, Marcos v. Comelec, I have maintained that the phrase "a resident thereof

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for a period of not less than one year" means actual and physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person’s residence or domicile coincides. To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections. Noteworthy is the established fact before the Comelec that petitioner admits having maintained other residences in Metro Manila apart from his leased condominium unit in Makati’s 2nd district. 1 This clear admission made by petitioner against his interest weakens his argument that "where a party decides to transfer his legal residence so he can qualify for public office, he is free to do so." (see p. 20, Petition). Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never have become his domicile of choice because it never entered his mind and suddenly, seemingly not contented with these other residences, he rents a condominium unit in Makati, and calls it his domicile of choice — all these without adding clear and convincing evidence that he did actually live and reside in Makati for at least one year prior to 8 May 1995 — and that he no longer lived and resided in his other residence during said one year period. It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioner actually and physically resided therein for the same period, in the light of his admission that he maintained other residences in Metro Manila. In light of petitioner’s disqualification, the corollary issue to be resolved is whether or not jurisdiction continued to be vested in the Comelec to order the Makati Board of Canvassers" to determine and proclaim the winner out of the remaining qualified candidates" after petitioner had been declared post 8-May 1995 as disqualified. I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate shall not be counted, thus:jgc:chanrobles.com.ph "SECTION 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong."cralaw virtua1aw library There can be no dispute that if a final judgment is rendered before the election, declaring a

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particular candidate as disqualified, such disqualified candidate shall not be voted for and votes cast for him shall not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates. But what about after the election? Sec. 6 appears categorical enough in stating: "if for any reason" no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidence of his guilt is strong. It thus appears clear that the law does not dichotomize the effect of a final judgment of disqualification in terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall not be voted and, if voted, the votes cast for him shall not be counted. Ubi lex non distinguit nec nos distinguere debemus (where the law does not distinguish, we should not distinguish.) At this point, what I said in Marcos, supra, follows:jgc:chanrobles.com.ph "What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law consider him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution."cralaw virtua1aw library Therefore the candidate who received the highest number of votes from among the qualified candidates, should be proclaimed ACCORDINGLY, I vote to DISMISS the petition. DAVIDE, JR., J., dissenting:chanrob1es virtual 1aw library In sustaining the COMELEC’s acts of suspending the proclamation of petitioner Agapito A. Aquino and of proceeding to hear the disqualification case against him, the majority opinion relies on Section 6 of R.A. No. 6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code (B.P. Blg. 881). I disagree.

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In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due course to or cancel a certificate of candidacy under Section 78, which reads:chanrob1es virtual 1aw library SECTION 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material representation contained in the petitioner’s certificate of candidacy is false. What is being attacked therein is the petitioner’s lack of the one-year residence qualification in the new Second Legislative District of Makati City where he sought to be elected for the office of Congressman. The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure as amended on 15 February 1993. The amendment allows the filing of a petition to disqualify a candidate on the ground that he does not possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualification based on the commission of any act declared by law to be a ground for disqualification. The rule as thus amended now reads as follows:chanrob1es virtual 1aw library Rule 25 — Disqualification of Candidates SECTION 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. SECTION 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law. SECTION 3. Period to File Petition. — The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. SECTION 4. Summary Proceeding. — The petition shall be heard summarily after due notice. SECTION 5. Effect of Petition if Unresolved Before Completion of Canvass. — If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election.

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The underscored portion is the amendment to Rule 25, which the COMELEC must have deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the light of this Court’s interpretation in Loong v. Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Sections 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as follows:chanrob1es virtual 1aw library We do not agree with private respondent Ututalum’s contention that the petition for disqualification, as in the case at bar, may be filed’ at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be a ground for disqualification may be disqualified from continuing as a candidate. The grounds for disqualification as expressed in Sections 12 and 68 of the Code are the following:chanrob1es virtual 1aw library SECTION 12. Disqualification. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. SECTION 63 [sic]. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative

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enactment. Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. Sections 6 and 7 reads:chanrob1es virtual 1aw library SECTION 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such elections, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. SECTION 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6 which does not Provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates which reads as follows:chanrob1es virtual 1aw library SECTION 5. Procedure in Cases of Nuisance Candidates. — (a) A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed. (b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any. (c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses. (d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. (e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. (f) The Commission shall within twenty-four hours, through the fastest available means,

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disseminate its decision or the decision of the Supreme Court or the city or municipal election registrars, boards of election inspectors and the general public in the political subdivision concerned. and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise, for both cases necessarily require that they be decided before the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter. Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows:chanrob1es virtual 1aw library SECTION 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and, he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority opinion, "the phrase ‘when the evidence of guilt is strong’ seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code."cralaw virtua1aw library Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing petitions filed before election or proclamation for the disqualification of a candidate on the ground that he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue hearing the case after the election. Fifth, even assuming that the second sentence of Section 6 of R.A. No. 6646 is applicable to disqualification cases based on the ground of lack of qualification, it cannot be applied to a case which does not involve elective regional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strong evidence of guilt or ineligibility. In such a case, the candidate sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate’s eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the regional trial courts, in the case of municipal officials (Section 2(2), Article IX-C, Constitution; Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in

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the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the Supreme Court en banc, in the case of the President or VicePresident (Section 4, Article VII, Constitution). If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified, proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C, Constitution; Section 253, B.P. Blg. 881). But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioner’s proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of any claim that the evidence of the petitioner’s guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of the petitioner’s ineligibility is strong. It would have been otherwise if the Second Division had disqualified the petitioner. Besides, at the time the questioned order was issued, there was no hearing yet on the private respondents’ motions for the suspension of the petitioner’s proclamation. In fact, in that order the COMELEC en banc admitted that the said motions could not be resolved without hearing, thus:chanrob1es virtual 1aw library Pending the resolution of the petitioners’ Motion for Reconsideration filed on May 7, 1995; Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10, 1995) filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the Honorable Commission’s) [Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing, without violating the right of the respondent to due process. . . . For being void from the beginning, it is as if the order of 15 May 1995 had not existed and could not, therefore, be made permanent by the COMELEC en banc through its resolution of 2 June 1995 whose dispositive portion reads in part:" [c]onsequently, the order of suspension of the respondent should he obtain the winning number of votes, issued by this Commission on 15 May 1995 is now made permanent."cralaw virtua1aw library Absent a valid finding before the election or after the canvass of election returns that the evidence of the petitioner’s guilt or ineligibility is strong, the COMELEC should not have suspended the proclamation of the petitioner. After the completion of the canvass the petitioner should have been proclaimed. This case then must be distinguished from that of Imelda Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or on 7 May 1995. the Second Division’s resolution of 24 April 1995 disqualifying Mrs. Marcos.

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Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be ordered to immediately proclaim the petitioner, without prejudice to the right of his opponents to file a petition for quo warranto with the House of Representatives Electoral Tribunal, which is the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives (Section 17, Article VI Constitution). In view of the foregoing, a disquisition on the merits of the ground for the petitioner’s disqualification will no longer be proper. I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to file the appropriate action in the House of Representatives Electoral Tribunal. Romero and Bellosillo, JJ., concur. VITUG, J., concurring:chanrob1es virtual 1aw library I find what I would consider as the relevant issues in this petition as similar in almost all material respects to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos v. Commission on Elections and Cirilo Roy Montejo). Let me then here just reiterate what I have there said in my separate opinion. The case at bench deals with explicit Constitutional mandates. The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been , not must it never been, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very essence. Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest (see Marcelino v. Cruz, 121- SCRA 51). The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions read:jgc:chanrobles.com.ph "SECTION 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines, and on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election."cralaw virtua1aw library

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"SECTION 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman."cralaw virtua1aw library The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution that, there being nothing said to the contrary, should include its authority to pass upon the qualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC’s jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). The matter before us specifically calls for the observance of the constitutional one-year residency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has a broader connotation that may mean permanent (domicile), official (place where one’s official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez v. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:jgc:chanrobles.com.ph "In election cases, the Court treats domicile and residence as synonymous terms, thus: ‘(t)he term ‘residence’ as used in the election law is synonymous with ‘domicile, ‘which imports not only an intention to reside in a fixed place but also presence in that place, could with conduct indicative of such intention.’ ‘Domicile’ denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the at the place chosen for the new domicile must be actual."cralaw virtua1aw library Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of discretion in its assailed resolution.

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The COMELEC’s jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must have therefore been duly proclaimed and has since become a ‘’member’’ of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done. The Court, on its parts, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court’s peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to the election, returns and qualification" of its members. Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:chanrob1es virtual 1aw library REPUBLIC ACT NO. 6646 "x

x

x

"SECTION 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong."cralaw virtua1aw library BATAS PAMBANSA BLG. 881 "x

x

x

"SECTION 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. "Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the

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provisions of the preceding sections shall not prevent his proclamation and assumption to office."cralaw virtua1aw library I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the case of Topacio v. Paredes (23 Phil. 238 [1912]) which, although later abandoned in Ticzon v. Comelec (103 SCRA 687 [1981]), and Santos v. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo v. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito v. Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision:jgc:chanrobles.com.ph "Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. "The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, ActingC.J., Abad Santos and MelencioHerrera, JJ.,), and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.,) Onewason official leave. (Fernando, C.J.) "Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J .) another took no part, (Aquino, J .) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J .) There the Court held:jgc:chanrobles.com.ph "‘. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. ‘Sound policy dictates that public elective offices are filled by those who have received the

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highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) ‘The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.’ (at pp. 20-21)" Accordingly, I am constrained to vote for the dismissal of the petition. MENDOZA, J., dissenting:chanrob1es virtual 1aw library For the reasons expressed in my separate opinion in the companion case, G.R. No. 119976, Imelda Romualdez-Marcos v. Commission on Elections, I am of the opinion that the Commission on Elections has no jurisdiction over petitions for disqualification of candidates based on alleged ineligibility for the office to which they seek election. The May 15, 1995 resolution of the COMELEC en banc, suspending the proclamation of petitioner should be obtain the highest number of votes for Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant to § 6 of R.A.. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation" whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision refers to proceedings under § 68 of the Omnibus Election Code which provides for the disqualification of candidates found guilty of using what in political parlance have been referred to as "guns, goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the application of § 6 of R.A. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC. Nor may the petition to disqualify petitioner in the COMELEC be justified under § 78 of the OEC which authorizes the filing of a petition for the cancellation of certificates of candidacy since such a petition may be filed "exclusively on the ground that a material representation contained [in the certificate] as required under section 74 is false." There was no allegation that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation. For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95113; that its proceedings in SPA No. 95-113, including the questioned orders, are void; and that the qualifications of petitioner Agapito A. Aquino for the position of Representative of the Second District of the City of Makati may only be inquired into by the House of Representatives Electoral Tribunal. This conclusion makes it unnecessary for me to express my view at this time on the question

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whether, in the event the candidate who obtained the highest number of votes is declared ineligible, the one who received the next highest number of votes is declared the winner. Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6, 1995, May 15, 1995, and the two orders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second District of the City of Makati and direct the City Board of Canvassers of Makati to determine and proclaim the winner out of the remaining qualified candidates. Narvasa, C.J., concurs. FRANCISCO, J., concurring and dissenting:chanrob1es virtual 1aw library I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I wish, however, to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the disqualification suit, (2) domicile, (3) theory of legal impossibility, and (4) "second placer rule" . Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal (HRET) can declare his disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET , 199 SCRA 692 (1991); Robles v. HRET , 181 SCRA 780 (1990); Lazatin v. HRET , 168 SCRA 391 (1988); and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as supporting authorities. To my mind, this position is untenable. Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the members of the House of Representatives. The operative acts necessary for an electoral candidate’s rightful assumption of the office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to declare his disqualification and invoking instead HRET’s jurisdiction, it indubitably appearing that he has yet to be proclaimed, much less has he taken an oath of offices. Clearly, petitioner’s reliance on the aforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon HRET, extends only to Congressional members is further established by judicial notice of HRET Rules of Procedure, 1 and HRET decisions 2 consistently holding that the proclamation of a winner in the contested election is the essential requisite vesting jurisdiction on the HRET. Moreover, a perusal of the records shows that the question on COMELEC’s jurisdiction is now barred by estoppel. It is to be noted that in his May 2, 1995 Answer, as well as in his Memorandum and Supplemental Memorandum filed before the COMELEC’s Second Division, petitioner never assailed COMELEC’s lack of jurisdiction to rule on his qualification. On the contrary, the asked that the disqualification suit against him be dismissed on the following grounds: that it was filed outside the reglementary period; that the one year residence requirement of the 1987 Constitution is inapplicable due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854; that he committed a simple inadvertence in filling up his certificate of candidacy; that the proper procedure to attack his qualification is by a quo warranto proceeding; that he had actually and physically resided in Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence

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(e.g. affidavits, amended certificate of candidacy, copy of the lease contract) to prove that he is qualified for the position. Subsequently, on May 16, 1995, in response to the COMELEC En Banc’s May 15, 1995 Order suspending the proclamation of the winner, petitioner filed his Comment/Opposition with Urgent Motion To Lift Order of Suspension of Proclamation asking for the lifting of the COMELEC’s order of suspension. On May 19, 1995, petitioner again filed a Memorandum and averred that the recent conversion of Makati into a city made the one-year residence requirement inapplicable; that he resided in Makati for more than a year; that quo warranto is the right remedy to question his qualification. In passing, petitioner also alleged that the issue on his qualification should be" properly" ventilated in a full-dress hearing before the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for lack of jurisdiction), and for lifting the suspension of his proclamation. It was only on June 01, 1995, in his Motion to File Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised COMELEC’s alleged lack of jurisdiction to resolve the question on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the COMELEC’s Second Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule is that a party who objects to the jurisdiction of the court and alleges at the same time any nonjurisdictional ground for dismissing the action is deemed to have submitted himself to the jurisdiction of the court. 3 Where a party voluntarily submits to the jurisdiction of the court and thereafter loses on the merits, he may not thereafter be heard to say that the court had no jurisdiction. 4 In Jimenez v. Macaraig, 5 the Court, citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrine in this wise:jgc:chanrobles.com.ph "The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People v. Archilla, G.R. No. L-15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a posture of double-dealing without running afoul of the doctrine of estoppel. The principle of estoppel is in the interest of a sound administration of the laws. It should deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elementary principles of right dealing and good faith (People v. Acierto, 92 Phil. 534, 541, [1953]). 6 It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision. 7 Perforce, petitioner’s asseveration that the COMELEC has no jurisdiction to rule on his qualification must fail. Petitioner insists that domicile is a matter of personal intention. Thus, petitioner asserts that if he decides to transfer his legal residence so he can qualify for public office then he is entirely free to do so. This argument to hold water, must be supported by clear and, convincing proofs that petitioner has effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemed lost until a new one is established (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last election as senator has consistently maintained Concepcion, Tarlac, as his domicile. He moved to Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim, however, is dismally unsupported by the records. The lease contract entered into by petitioner for a period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The intention to establish domicile must be an intention to remain indefinitely or permanently in the new place. 8 This

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element is lacking in this instance. Worse, public respondent Commission even found that "respondent Aquino himself testified that his intention was really for only one (1) year because he has other ‘residences’ in Manila or in Quezon City ([citing] TSN, May 2, 1995, p. 92)." 9 Noting that petitioner is already barred from running for senator due to the constitutional consecutive two-term limit, his search for a place where he could further and continue his political career and sudden transfer thereto make his intent suspect. The best test of intention to establish legal residence comes from one’s acts and not by mere declarations alone. 10 To acquire, or effect a change of domicile, the intention must be bona fide and unequivocal (28 C.J.S. § 11). Petitioner, in my view, miserably failed to show a bona fide and unequivocal intention to effect the change of his domicile. The theory of legal impossibility is advanced to justify non-compliance with the constitutional qualification on residency. Petitioner explains his theory in this wise:jgc:chanrobles.com.ph ". . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER’S DISTRICT IN MAKATI." ‘ 11 Apparently, this theory is an offshoot of Republic Act No. 7854, an act converting the municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995, established a second Congressional district in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner’s acts, however, as borne by the records, belie his own theory. Originally, he placed in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year and thirteen (13) days to correct what he claims as a mere inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely four-month old Makati district. The amendment only reveals the true intent of petitioner to comply with the one year constitutional requirement for residence, adding an extra thirteen (13) days for full measure. Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same time played it safe in the other (the constitutional one year residence requirement). And that is not all. If we were to adhere to petitioner’s theory of legal impossibility, then in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying voters — one of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner’s contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or revision of the constitution outlined under Article XVIII of the 1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic law of the land to which every statute must conform and harmonize. Finally, it has been contended that a second place candidate cannot be proclaimed a substitute winner. I find the proposition quite unacceptable. A disqualified "candidate" is not a candidate

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and the votes which may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as placer and not from without. Necessarily, Petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for disqualified candidate would, in my view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who garnered the highest number of votes should be proclaimed the duly elected representative of the district. I feel that the Labo doctrine ought to be abandoned. I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated June 6, 1995. Endnotes:

1. Rollo, p. 61. 2. Id., at 56-60. 3. Id., at 63. 4. Petition, Annex H; Rollo p. 65. 5. Id., Annex I; Rollo , p. 71. 6. Id., Ibid. 7. Id., Annex K, Id., at 74. 8. Id., Annex L, Id., at 75 9. Petition, annex "D" ; Rollo, p. 55. 10. Id., at 7-8 citing the completed canvass of election returns by the Board of Canvassers of Makati City as source. 11. Id., Annex "A" ; Rollo pp. 30-31. 12. Id., Annex "B" ; Id., at 32-33. 13. Id., Annex "C" ; Id., at 48-49. 14. The petition filed on June 6, 1995 prayed for the issuance of a temporary restraining order

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to enjoin public respondents from reconvening and determining the winner out of the remaining qualified candidates for Representative of the Second Congressional District of Makati City. As prayed for a temporary restraining order was issued by the Court on June 6, 1995. 15. Id., at 12-14. 16. B.P. 881, Sec. 231 provides:chanrob1es virtual 1aw library The respective Board of Canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the provinces, city, municipality or Barangay. Failure to comply with this requirement shall constitute an election offense. 17. Rollo, p. 35. 18. CONST., Art. VI, sec. 6. 19. 199 SCRA 692 (1991). 20. Id., at 713-714. 21. MINOR, CONFLICT OF LAWS, 62. 22. 73 Phil. 453 (1941). 23. Rollo, pp. 35-36. 24. Id. 25. Id. 26. Id., at 37. 27. Id., at 34-37. 28. Resolution, p. 3. 29. Id. 30. 18 Am. Jur 211-220. 31. 176 SCRA 1 [1989]. 32. 23 Phil. 238 [1912]. 33. 103 SCRA. 687 [1981].

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34. 136 SCRA 435 [May 14, 1985]. 35. 137 SCRA 740 [July 23, 1985]. 36. 176 SCRA 1[1989]. 37. 201 SCRA 253 [1991]. 38. 235 SCRA 436 [1994]. 39. 211 SCRA 297 [1992]. 40. In England, where the election system is open and the voters known, knowledge of a candidate’s ineligibility or disqualification is more easily presumed. . . and upon the establishment of such disqualification on the part of the majority candidate, the one receiving the next highest number of votes is declared elected. King v. Hawkins, 10 East 211; King v. Parry, 14 Id. 549; Gosling v. Veley, 7 Q.B. 406; French v. Nolan, 2 Moak 711; Reg v. Cooks, 3 El. & BI. 249; Rex v. Monday, 2 Cowp. 530; Rex v. Foxcroft, Burr. 1017. In a few states in the United States the settled law is directly opposite that taken by the Court in Labo and Abella, supra. For example, in Indiana, ballots cast for an ineligible candidate are not counted for any purpose. They cannot be counted to defeat the election of an opposing candidate by showing that he did not receive a majority of votes cast in such election. Votes made favor of an ineligible candidate are considered illegal, and have no effect upon the election for any purpose. Consequently the qualified candidate having the highest number of legal votes is regarded as entitled to offices. Price v. Baker, 41 Id., 572, See also, Gulick v. New, 14 Ind. 93 and Carson v. Mcphetridge, 15 id., 327. PADILLA, J., concurring:chanrob1es virtual 1aw library 1. See p. 4 Annex "C", Petition; Comelec En Banc Resolution dated 2 June 1995. FRANCISCO, J., concurring and dissenting:chanrob1es virtual 1aw library 1. Rule 16. Election Protest. — A verified petition contesting the election of any Member of the House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten (10) days after the proclamation of the winner. Rule 17. Quo Warranto. — A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner. 2. Puzon, v. Evangelista Cua, HRET Case No. 42, July 25, 1988, Vol. 1 HRET Reports 9; Aznar v. Bacaltos, HRET Case No. 05, January 28, 1988, Vol. 1, HRET Reports 5; Ty Deling v. Villarin, HRET Case No. 53, May 2, 1950. 3. Wang Laboratories, Inc. v. Mendoza, 156 SCRA 44, 53-54 (1987).

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4. La Campana Food Products Inc. v. Court of Appeals, 223 SCRA 152, 157 (1993). 5. 219 SCRA 230 (1993). 6. Id., at 239. 7. Tijam v. Sibonghanoy, 23 SCRA 29, 35-36 (1968). 8. 28 C.J.S. § 11. 9. Resolution, SPA No. 95-113, June 2, 1995, p. 4. 10. Tanseco v. Arteche, 57 Phil. 227, 235 91932). 11. Petition, June 5, 1995, p. 20.

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EN BANC [G.R. No. 150469. May 30, 2002.] MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN SANAYON, and AMIN SANGARAN, Petitioners, v. THE COMMISSION ON ELECTIONS and ABDULMALIK M. MANAMPARAN, Respondents. DECISION CARPIO, J.: The Case Before us is a Petition for Certiorari with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 64 of the 1997 Rules of Civil Procedure 1 assailing the Resolution of the Commission on Elections ("Comelec" for brevity) en banc 2 in SPC No. 01-276 dated October 24, 2001, the dispositive portion of which reads:jgc:chanrobles.com.ph "WHEREFORE, premises considered, the instant petition is hereby GRANTED. The results of special elections held on 30 May 2001 covering Precincts Nos. 2A 2A1/2A2 in Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No. 10A/10A1 in Barangay Liangan are hereby ANNULLED. Accordingly, the proclamation of all winning candidates insofar as the results in the four (4) contested precincts affect the standing of candidates is hereby SET ASIDE until the choice of the people is finally determined through another special election to be authorized, conducted and supervised by this Commission as soon as possible unless restrained. Finally, the Law Department is hereby directed to investigate the election irregularities that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of the Election Officer and thereafter, file election offense case/s should there be finding of probable cause and other appropriate cases if warranted under the circumstances. Page 370 of 492

SO ORDERED." 3 The Facts During the May 14, 2001 elections, petitioner Jun Rascal Cawasa ("petitioner Cawasa" for brevity) and private respondent Adbulmalik M. Manamparan ("private respondent Manamparan" for brevity) were among the candidates for mayor in the Municipality of Nunungan, Lanao del Norte ("Nunungan" for brevity). Out of the forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a failure of election in the remaining four (4) precincts. The following were the precincts, barangays, polling places and number of registered voters where there was a failure of election:chanrob1es virtual 1aw library PRECINCT NO. BARANGAY POLLING PLACE REG. VOTERS 2A Bangko Bangko Prim School 200 2A1 /2A2 Bangko -do- 254 3A Cabasaran Cabasaran Prim. Sch. 155 10A/10A1 Liangan Liangan Prim. Sch. 236 _____ Total 845 After canvassing the election returns from the 36 precincts, the Municipal Board of Canvassers of Nunungan deferred the proclamation of all winning candidates due to the failure of the said 4 precincts to function. Special elections were set on May 30, 2001 considering that the number of registered voters in the remaining four precincts would affect the election results. The Comelec promulgated Resolution No. 4360 on May 21, 2001 authorizing the conduct of special elections in the affected areas, including barangays Bangko, Cabasaran and Liangan in Nunungan, the pertinent portion of which states:jgc:chanrobles.com.ph "VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001. REGION MUNICIPALITY/PROVINCE Region XII Nunu(n)gan, Lanao del Norte Barangays:chanrob1es virtual 1aw library 1. Bangco 2. Cabasaran 3. Liangan

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REASONS : disagreement of venue of election, tension of BEIs, forcible taking of the ballot boxes and other election paraphernalia. Scheduled date: May 30, 2001 x

x

x

In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as follows:chanrob1es virtual 1aw library 1. To schedule the special elections in the foregoing areas on May 26 and 30, 2001 as herein specified; x

x

x

Let the Executive Director, Deputy Executive Directors for Operations and all the working Committees implement this resolution. SO ORDERED." 4 As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001. The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were conducted in the Municipality of Sultan Naga Dimaporo, Lanao del Norte. The special elections for Precinct No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of Barangay Liangan were conducted in the Municipality of Sapad, Lanao del Norte. The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4 precincts on May 31, 2001. After the canvassing of the election returns, the Municipal Board of Canvassers proclaimed the winning candidates on the basis of the earlier 36 election returns of the May 14, 2001 regular elections and the 4 election returns of the 4 precincts subject of the special elections. The May 14, 2001 regular elections and the May 30, 2001 special elections show the following results with respect to the position of mayor:chanrob1es virtual 1aw library Sub-Total of Votes Sub-Total of votes Grand Obtained May 14, 2001 Obtained May 30, Total Regular Elections 2001 Special Elections Private Respondent Manamparan 1,197 570 1,767

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Petitioner Cawasa 1,283 187 1,470 _____ Margin ..... 297 As shown above, during the May 14, 2001 regular elections, the lead of petitioner Cawasa was eighty six (86). After the May 30, 2001 special elections, private respondent Manamparan overcame the margin with a lead of 297 votes. Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran were also proclaimed as councilors of Nunungan. On June 4, 2001, private respondent Manamparan filed an appeal and petition to annul the proclamation of petitioner Cawasa docketed as SPC No. 01-252. The appeal/petition was dismissed by the Comelec Second Division on September 26, 2001. In the meantime, on June 8, 2001, private respondent Manamparan filed a petition for "Annulment of Election Results during the May 30, 2001 Special Elections in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction" docketed as SPC Case No. 01-276. Impleaded as respondents were petitioner Cawasa and the Municipal Board of Canvassers composed of Mario Allan Ballesta, 5 Nedalyn S. Sebial 6 and Iluminada O. Pegalan. 7 As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated a resolution annulling the results of the special elections of the 4 precincts (Precinct Nos. 2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001 conducted in the municipalities of Sultan Naga Dimaporo and Sapad. The Comelec en banc also annulled the proclamation of all winning candidates insofar as the results in the 4 contested precincts affect the standing of candidates. The Comelec Ruling In granting the petition, the Comelec held that "the special elections in the 4 contested precincts were not genuinely held and resulted in failure to elect on account of fraud." The Comelec’s ruling is summarized as follows:chanrob1es virtual 1aw library First. The Comelec clarified that the Comelec en banc can take cognizance of the petition for annulment of election results in accordance with Section 4 of RA 7166, 8 otherwise known as the "Synchronized Elections Law of 1991." It explained that while the proclamation of a candidate has the effect of terminating pre-proclamation issues, a proclamation that is a result of an illegal act is void and cannot be ratified by such proclamation and subsequent assumption of office. The Comelec declared that there is no forum-shopping considering that SPC 01-252 pending before the Second Division of the Comelec is a pre-proclamation controversy, 9 while SPC 01-276 pending before the Comelec en banc is a case for annulment of election results. Second. The Comelec found that the special elections were not held in the designated polling

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places in Nunungan but were transferred to the municipalities of Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According to the Comelec, the Election Officer, who happened to be the chairman of the Municipal Board of Canvassers, caused the transfer of the polling places without asking permission from the Comelec. The transfer was likewise in violation of the due process requirements found in Section 153 of the Omnibus Election Code. Moreover, it ruled that the unauthorized transfer of a polling place is also punishable as an election offense under Section 261 (z) (17) of the Same Code. We quote the pertinent portion of the Comelec ruling thus:jgc:chanrobles.com.ph "The transfer of polling places cannot be done without due process. This is the explicit rule of Section 153 of the Omnibus Election Code, . . . x

x

x

In the instant case, the Election Officer, who happened to be the Chairman of the respondent Board, also caused the transfer of the polling places without asking the permission of this Commission and in violation of the due process rule, thereby, making the aforequoted Section 153 inutile. Considering these unwarranted acts of the official of this Commission, the sanctity of the special elections therefore is suspect. Nothing in the records could show that notice was given to the political candidates and to the registered voters affected by the special elections of the said transfer of polling places. Who therefore voted on the assailed special elections given these circumstances? This issue has never been squarely addressed by the respondents. We take judicial notice of the distance of the venues of voting which are more or less 25 kilometers away from Nunungan, far from being accessible to the voters given the time and material constraints. The panorama of what is supposed to be a free and honest exercise of democracy is indeed rendered myopic by fraud perpetrated by no other than the COMELEC officials concerned." 10 Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario Allan Ballesta, preposterously feigned ignorance of the fact that during the said special elections, members of the Philippine Army 26th Infantry Battalion served as election inspectors without authority from the Comelec. Hence, the instant petition. The Issues Petitioners argue that the COMELEC en banc Resolution was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction for the following reasons:jgc:chanrobles.com.ph "1. The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon, and Amin Sangaran were annulled and set aside in violation of due process of law. They were not impleaded as respondents in the

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petition to annul the election. They were not notified of the proceedings . . . 2. The transfer of the venue of the special elections at Sultan Naga Dimaporo and Sapad and the appointment of military personnel as members of the Board of Election Inspectors of the four (4) precincts were agreed upon by the private respondent and the municipal candidates and their respective political parties. 3. The election officer in the exercise of his discretion has authority to transfer the venue of the special elections in view of the agreement of the political parties and municipal candidates on the transfer of the venue of the special elections . . . 4. There is substantial compliance with the provisions of Sec. 153 of the Omnibus Election Code. The political parties and municipal candidates of the municipality Nunungan were notified and in fact agreed to the transfer of venue of the special elections. 5. The COMELEC en banc promulgated the October 24, 2001 resolution without requiring its election officer of Nunungan, the provincial election supervisor of Lanao del Norte, and Regional Election Director of Region XII to explain why the special elections of the four (4) precincts were transferred to the municipalities of Sultan Naga Dimaporo and Sapad. The petitioner Mayor Jun Rascal Cawasa prayed that the case be set for trial and hearing in order that the election officer of Nunungan be required to testify and explain the circumstances of the special elections. The COMELEC en banc did not act on the motion. It promulgated the resolution of October 24, 2001 without investigating the circumstances why the election officer transferred the venue of the special elections to the municipalities of Sultan Naga Dimaporo and Sapad. No hearing was conducted by the COMELEC en banc." 11 Simply put, the issues raised boil down to whether or not: (1) the transfer of the polling places to the adjacent municipalities is legal; (2) the appointment of military personnel as members of the board of election inspectors is legal; and (3) the petitioners were accorded due process prior to the promulgation of the assailed resolution in SPC No. 01-276. The Court’s Ruling The petition is bereft of merit. First Issue: Legality of the Transfer of Polling Places and Appointment of Military Personnel as Members of the Board of Election Inspectors There is no dispute that the venue of the special elections was transferred to the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military personnel were appointed as members of the Board of Election Inspectors ("BEI" for brevity) in the 4 precincts. Petitioners and private respondent Manamparan agree that the 4 precincts covered by the special elections with a total of 845 registered voters will affect the result of the elections. Petitioners insist on the validity of the conduct of the special elections claiming that the political parties and the municipal candidates were notified and in fact agreed on the transfer

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of venue and the appointment of military personnel as members of the BEI. They contend that there is substantial compliance with the provisions of Section 153 of the Omnibus Election Code considering that the election officer as the representative of the Comelec reported the matter to the Provincial Election Supervisor of Lanao del Norte and the transfer was not disapproved by the Comelec. Petitioners claim that an "election officer has authority to transfer the polling places even four days before the scheduled election" citing Balindong v. Comelec 12 and Alonto v. Comelec. 13 Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus Election Code shed light on this matter, to wit:chanrob1es virtual 1aw library SEC. 152. Polling Place. — A polling place is the building or place where the board of election inspectors conducts its proceedings and where the voters shall cast their votes. SEC. 153. Designation of polling places. — The location of polling places designated in the preceding regular election shall continue with such changes as the Commission may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing: provided, That no location shall be changed within forty-five days before a regular election and thirty days before a special election or a referendum or plebiscite, except in case it is destroyed or it cannot be used. SEC. 154. Requirements for polling places. — Each polling place shall be, as far as practicable, a ground floor and shall be of sufficient size to admit and comfortably accommodate forty voters at one time outside the guard rail for the board of election inspectors. The polling place shall be located within the territory of the precinct as centrally as possible with respect to the residence of the voters therein and whenever possible, such location shall be along a public road. No designation of polling places shall be changed except upon written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Commission upon prior notice and hearing. A public building having the requirements prescribed in the preceding paragraph shall be preferred as polling place. 14 The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code. As clearly provided by the law, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. But ultimately, it is the Comelec which determines whether a change is necessary after notice and hearing. The Comelec has unequivocally stated that "nothing in the records showed that notice was given to the political candidates and registered voters affected by the transfer." Private respondent Manamparan has categorically denied petitioners’ claim that all the political parties and municipal candidates agreed to the transfer of venue. The Court discerns no substantiation of petitioners’ claim regarding the agreement to transfer. There is then no cogent reason for us to disturb the findings of the Comelec on this matter. Indeed, the factual findings of the Comelec supported by substantial evidence shall be final and non-reviewable. 15 Thus, it has been held that findings of fact of the Comelec based on its own assessments

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and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack on the validity of the same. 16 Moreover, there is no question that the transfer of venue was made within the prohibited period of thirty days before the special election. Reliance on Balindong v. Comelec 17 and Alonto v. Comelec 18 is misplaced. Alonto involved an entirely different factual scenario from the instant case. In said case, the Court upheld the validity of the transfer of the counting and tallying of the votes after the closing of the polls from the precincts to the PC camps. The Court held that the transfer was dictated by necessity and authorized by the Comelec directly or by its provincial representative. The Court explained that "while it is highly desirable that the authority for the transfer of the counting should be directly authorized by the Comelec itself, the latter’s denial of the petitioners’ motion for reconsideration where this legal point was advanced was tantamount to a validation of the authority issued by its provincial representatives."cralaw virtua1aw library On the other hand, the Court in Balindong 19 held that the mere fact that the transfer of polling place was not made in accordance with law, particularly Secs. 152-154 of the Omnibus Election Code, does not warrant a declaration of failure of election and the annulment of the proclamation of the winning candidate, because the number of uncast votes will not affect the result of the election. In the case at bar, there is no dispute that the election returns from the 45 precincts will affect the results of the elections. Next, the appointment of military personnel as members of the BEI is another grave electoral irregularity that attended the special elections held on May 30, 2001. There was absolutely no legal basis for the appointment of military personnel as members of the BEI. Verily, the appointments were devoid of any justification other than the bare assertion, again, that "the political parties and municipal candidates agreed on the said arrangement." The pertinent provisions of the Omnibus Election Code regarding the composition, appointments and substitution of the members of the BEI are quoted as follows:chanrob1es virtual 1aw library SEC. 164. Composition and appointments of board of election inspectors. — At least thirty days before the date when the voters list is to be prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment. SEC. 165. Oath of the members of the board of election inspectors. — The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election inspectors present, or in case no one is present, they shall take it before any voter. The oaths shall be sent immediately to the city or municipal treasurer. (Sec. 157, 1971 EC) SEC. 166. Qualification of members of the board of election inspectors. — No person shall be appointed chairman, member or substitute member of the board of election inspectors unless

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he is of good moral character and irreproachable reputation, a registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. (Sec. 114, 1978 EC)chanrob1es virtua1 1aw 1ibrary x

x

x

SEC. 170. Relief and substitution of members of the board of election inspectors. — Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing. x

x

x

Section 13 of Republic Act No. 6646 20 modified Section 164 of the Omnibus Election Code. Said section reads:chanrob1es virtual 1aw library SEC. 13. Board of Election Inspectors. — The board of election inspectors to be constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom shall be public school teachers, giving preference to those with permanent appointments. In case there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence who are registered voters of the city or municipality may be appointed for election duty. Clearly, the BEI shall be composed of a chairman and two members, all of whom are public school teachers. If there are not enough public school teachers, teachers in private schools, employees in the civil service or other citizens of known probity and competence may be appointed. It was highly irregular to replace the duly constituted members of the BEI, who were public school teachers. Nothing in petitioners’ pleadings would even suggest that the substitution was made for cause and after hearing. The importance of the constitution of the BEI to the conduct of free, honest and orderly elections cannot be overemphasized. The Court has held that, "the members of the board of election inspectors are the front line election officers. They perform such duties and discharge such responsibilities that make them, in a real sense, foot soldiers who see to it that elections are free, honest and orderly. They are essential to the holding of elections." 21 Second Issue: Denial of Due Process Petitioners claim that there was a clear violation of due process of law because a hearing was not conducted on the circumstances of the special election. Petitioners further claim that the Comelec rendered the assailed resolution without requiring its field officers, specifically, the election officer, provincial election supervisor and the regional election director to explain the transfer of the polling places. Lastly, petitioners point out that none of the eight (8) proclaimed members of the Sangguniang Bayan 22 of Nunungan, Lanao del Norte and the proclaimed Vice Mayor were notified and impleaded as respondents in the petition to annul the election results citing Velayo v. Commission on Elections. 23

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Section 4 of Republic Act No. 7166 or "The Synchronized Elections Law of 1991" provides that the Comelec sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:jgc:chanrobles.com.ph "SEC. 6. Failure of election. — If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect."cralaw virtua1aw library A prayer to annul election results, as in the instant case, and a prayer to declare failure of elections based on allegations of fraud, terrorism, violence or analogous causes, are actually of the same nature and the Election Code denominates them similarly. 24 The Comelec may exercise the power to annul election results or declare a failure of election motu proprio 25 or upon a verified petition. 26 The hearing of the case shall be summary in nature. 27 A formal trial-type hearing is not at all times and in all instances essential to due process — it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based. 28 In fine, a trial is not at all indispensable to satisfy the demands of due process.chanrob1es virtua1 1aw 1ibrary The petition was heard by the Comelec en banc on June 27, 2001. During the said hearing, the Comelec directed the parties, as agreed upon, to submit their respective memoranda within five (5) days from date and after which, the case shall be submitted for resolution. Petitioners were duly heard through their pleadings, thus, there is no denial of procedural due process to speak of. Moreover, contrary to the claim of petitioners, the Municipal Board of Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing held on June 27, 2001 and furnished a copy of the petition. The pre-conditions for declaring a failure of election are: (1) that no voting has been held in any precinct or precincts because of force majeure, violence, terrorism, fraud or other analogous causes and (2) that the votes not cast therein are sufficient to affect the results of the elections. The concurrence of these two circumstances justifies the calling of special elections. 29 Here, the Comelec found that the special elections were vitiated by fraud due to the illegal transfer of the polling places and the appointment of military personnel as members of the BEI. Inevitably, the Comelec could not ascertain who voted during the special elections. The circumstances were such that the entire electoral process was not worthy of faith and credit, hence, in practical effect no election was held. 30 In Velayo v. Commission of Elections, 31 the Court held that "the non-inclusion of a

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proclaimed winner as respondent in a pre-proclamation controversy and his lack of notice of the proceedings in the Comelec which resulted in the cancellation of his proclamation constitute clear denial of due process." In the Velayo case, the proclaimed mayor and the members of the Municipal Board of Canvassers were not impleaded in the pre-proclamation cases brought before the Comelec. However, in this case, petitioner Cawasa and the members of the Municipal Board of Canvassers were in fact impleaded, notified and even heard by the Comelec in SPC No. 01-276. At this late stage, public interest in the speedy disposition of this case will only be further derailed by the re-opening of the case for the benefit of petitionerscouncilors who did not advance any new and substantial matters in this petition warranting the declaration that the special elections were valid and untainted by fraud. WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections, the instant petition is hereby DISMISSED. The resolution of the Commission on Elections en banc in SPC No. 01-276 dated October 24, 2001 is hereby AFFIRMED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, Austria-Martinez and Corona, JJ., concur. Davide, Jr., C.J., on official leave. Endnotes:

1. Since the instant petition is grounded on grave abuse of discretion on the part of the Comelec, the same is considered as a Petition for Certiorari under Rule 65 of the Rules of Court pursuant to Section 2 of Rule 64. 2. Composed of Alfredo L. Benipayo as Chairman with Luzviminda G. Tancangco, Rufino SB. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr, as Commissioners. 3. Rollo, p. 45. 4. Rollo, pp. 50-51. 5. Chairman and acting Election Officer. 6. Vice Chairman and acting Municipal Treasurer. 7. Member and District Supervisor.chanrob1es virtua1 1aw 1ibrary 8. Sec. 4. Postponement, Failure of Election and Special Elections. — The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority of votes of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election.

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x

x

x

9. As mentioned earlier, this case was dismissed on September 26, 2001. 10. Rollo, p. 43, Emphasis supplied. 11. Rollo, pp. 20-22. 12. 260 SCRA 494 (1996). 13. 22 SCRA 878 (1968). 14. Emphasis supplied. 15. See Section 5, Rule 64, 1997 Rules of Civil Procedure. 16. Mohammad v. Commission on Elections, 320 SCRA 258 (1999). 17. Supra, see note 12. 18. Supra, see note 13. 19. Supra. 20. An Act Introducing Additional Reforms in the Electoral System and For Other Purposes. 21. Sumulong v. Comelec, 70 Phil. 703 (1940). 22. Including herein petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran. 23. 327 SCRA 713 (2000). 24. Banaga, Jr. v. Commission on Elections, 336 SCRA 701 (2000). 25. Section 3, Rule 26, The 1993 Comelec Rules of Procedure. 26. Ibid., Section 4. 27. Ibid., Section 6. 28. Melendres, Jr. v. Commission on Elections, 319 SCRA 262 (2000). 29. Hassan v. Commission on Elections, 264 SCRA 125 (1996). 30. Sanchez v. Comelec, 114 SCRA 454 (1982). 31. Supra.

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EN BANC [G.R. No. L-12596. July 31, 1958.] JOSE L. GUEVARA, Petitioner, v. THE COMMISSION ON ELECTIONS, Respondent. Enrique M. Fernando for Petitioner. Dominador D. Dayot for Respondent. SYLLABUS 1. COMMISSION ON ELECTIONS; JURISDICTION AND POWER TO PUNISH FOR CONTEMPT. — Under section 2, Article X of the Constitution and section 5 of the Revised Election Code, the Commission on Elections not only has the duty to enforce and administer all laws relative to the conduct of elections but the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. And as an incident of this power, it may also punish for contempt in those cases provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein. In this sense, the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (section 13, Art. VIII) for it is merely an independent administrative body (The Nacionalista Party v. Vera, 85 Phil., 126), may however exercise quasi-judicial functions in so far as controversies that by express provision of the law come under its jurisdiction. As to what questions may come within this category, neither the Constitution nor the Revised Election Code specifies. The former merely provides that it shall come under its jurisdiction, saving those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and other election officials, while the latter is silent as to what questions may be brought before it for determination. But it is clear that, to come under its jurisdiction, the questions should be controversial in nature and must refer to the enforcement and administration of all laws relative to the conduct of elections. 2. ID.; ID.; ON MINISTERIAL ACT; NEWSPAPER COMMENTS ON REQUISITION FOR BALLOT BOXES. — The requisitioning and preparation of the necessary ballot boxes to be used in the elections is an imperative ministerial duty of the Commission on Elections performed in its administrative capacity in relation to the conduct of election ordained by our Constitution. In proceeding on this matter, it only dicharges a ministerial duty; it does not exercise any judicial functions. Such being the case, it can not exercise the power to punish for contempt as Page 382 of 492

postulated in the law, for such power is inherently Judicial in nature. 3. ID.; ID.; POWER TO PUNISH FOR CONTEMPT IS INHERENTLY JUDICIAL; EXEMPTION. — "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of Courts, and, consequently, in the administration of justice" (Slade Perkins v. Director of Prisons, 58 Phil., 271; U. S. v. Loo Koe, 36 Phil., 867; In re Sotto 46 Off. Gaz., 2570; In re Kelly, 35 Phil, 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.) Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People v. Swena, 296 p. 271), and the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg v. Decker, 31 N. E. 190; In re Sims, 37 Phil., 135; Roberts v. Hacney, 58 S.W. 180). DECISION BAUTISTA ANGELO, J.: Petitioner was ordered by the Commissioner on Elections to show cause why he should not be punished for contempt for having published in the Sunday Times issue of June 2, 1957 an article entitled "Ballot Boxes Contract Hit", which tended to interfere with and influence the Commission on Elections and its members in the adjudication of a controversy then pending investigation and determination before said body "arising from the third petition for reconsideration of May 20, 1957 and the supplementary petition thereof of June 1, 1957 filed by Acme Steel Mfg. Co., Inc., praying for reconsideration of the resolutions of the Commission of May 4 and 13, 1957, awarding the contracts for the manufacture and supply of 34,000 ballot boxes to the National Shipyards & Steel Corporation and the Asiatic Steel Mfg. Co., Inc. and the respective answers of the latter two corporations to said petitions; and which article likewise tended to degrade, bring into disrepute, and undermine the exclusive constitutional function of this Commission and its Chairman Domingo Imperial and Member Sixto Brillantes in the administration of all the laws relative to the conduct of elections."cralaw virtua1aw library Petitioner, answering the summons issued to him by the Commission, appeared and filed a motion to quash on the following grounds:jgc:chanrobles.com.ph "a) The Commission has no jurisdiction to punish as contempt the publication of the alleged contemptuous article, as neither in the Constitution nor in statutes is the Commission granted a power to so punish the same, for should Section 5 of Republic Act No. 180, vesting the Commission with ‘power to punish contempts provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein,’ be applied to the case at hand, said provision would be unconstitutional. "b) Assuming that the Commission’s power to punish contempt exists, the same cannot be applied to the instant case, where the Commission is exercising a purely administrative

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function of purchasing ballot boxes. "c) Assuming that the Commission’s power to punish contempt exists, said power cannot apply to the present case because the matter of purchasing the ballot boxes was already a closed case when the article in question was published. "d) Assuming that controversy contemplated by the law was still pending, the article in question was a fair report because it could be assumed that the news report of the respondent was based on the motion for reconsideration filed by the Acme Steel where there was an allegation of fraud, etc."cralaw virtua1aw library The Commission, after hearing, denied the motion to quash but granted petitioner a period of fifteen (15) days within which to elevate the matter to the Supreme Court in view of the issue raised which assails the jurisdiction of the Commission to investigate and punish petitioner for contempt in connection with the alleged publication. Hence the present petition for prohibition with preliminary injunction. The facts which gave rise to the present contemptuous incident are: The Commission on Elections, on May 4, 1957, after proper negotiations, awarded to the National Shipyards & Steel Corporation (NASSCO), the Acme Steel Mfg. Co., Inc. (ACME), and the Asiatic Steel Mfg. Co., Inc. (ASIATIC), the contracts to manufacture and supply the Commission 12,000, 11,000 and 11,000 ballot boxes at P17.64, P14.00 and P17.00 each, respectively. On May 8, 1957, both the NASSCO and the ASIATIC signed with the Commission on Elections the corresponding contracts thereon. On May 13, 1957, the Commission cancelled the award to the ACME for failure of the latter to sign the contract within the designated time and awarded to the NASSCO and the ASIATIC, one-half each, the 11,000 ballot boxes originally alloted to the ACME. The corresponding contracts thereon were signed on May 16, 1957. Then followed a series of petitions filed by the ACME for the reconsideration of the resolution of the Commission of May 13, 1957. The first of these petitions was filed on May 14, 1957 which, after hearing, was denied by the Commission in its resolution of May 16, 1957. The second petition was filed on May 16, 1957 and was denied on May 17, 1957. The third petition was filed on May 20, 1957, and because of the seriousness of the grounds alleged therein for the annulment of its previous resolutions, the Commission resolved to conduct a formal investigation on the matter ordering the NASSCO and the ASIATIC to file their respective answers. Thereafter, after these corporations had filed their answers, the Commission held a formal hearing thereon on May 24, 1957. On May 28, 1957, the ACME filed a memorandum on the points adduced during the hearing, and on June 4, 1957, the Commission issued its resolution denying the third motion for reconsideration. The article signed by petitioner was published in the June 2, 1957 issue of the Sunday Times, a newspaper of nationwide circulation. The question to be determined is whether the Commission on Elections has the power and jurisdiction to conduct contempt proceedings against petitioner with a view to imposing upon him the necessary disciplinary penalty in connection with the publication of an article in the Sunday Times issue of June 2, 1957 which, according to the charge, tended to interfere with and influence said Commission in the adjudication of a controversy then pending determination and to degrade and undermine the function of the Commission and its members in the administration of all laws relative to the conduct of elections.

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The Commission on Elections is an independent administrative body which was established by our Constitution to take charge of the enforcement of all laws relative to the conduct of elections and devise means and methods that will insure the accomplishment of free, orderly, and honest elections (Sumulong v. Commission on Elections, 73 Phil., 288; Nacionalista Party v. The Solicitor General, 85 Phil., 101; 47 Off. Gaz. 2356). Its powers are defined in the Constitution. It provides that it "shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials" (Section 2, Article X). The Revised Election Code supplements what other powers may be exercised by said Commission. Among these powers are those embodied in Section 5 thereof which, for ready reference, we quote:jgc:chanrobles.com.ph "SEC. 5. Powers of Commission. — The Commission on Elections or any of the members thereof shall have the power to summon the parties to a controversy pending before it, issue subpoenas and subpoenas duces tecum and otherwise take testimony in any investigation or hearing pending before it, and delegate such power to any officer. Any controversy submitted to the Commission on Elections shall be tried, heard and decided by it within fifteen days counted from the time the corresponding petition giving rise to said controversy is filed. The Commission or any of the members thereof shall have the power to punish contempts provided for in rule sixty-four of the Rules of Court, under the same procedure and with the same penalties provided therein. "Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt of the Commission. "Any decision, order or ruling of the Commission on Elections may be reviewed by the Supreme Court by writ of certiorari in accordance with the Rules of Court or with such rules as may be promulgated by the Supreme Court."cralaw virtua1aw library It would therefore appear that the Commission on Elections not only has the duty to enforce and administer all laws relative to the conduct of elections but the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. And as an incident of this power, it may also punish for contempt in those cases provided for in Rule 64 of the Rules of Court under the same procedure and with the same penalties provided therein. In this sense, the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (Section 13, Article VIII), for it is merely an independent administrative body (The Nacionalista Party v. Vera, 85 Phil., 126; 47 Off. Gaz. 2375), may however exercise quasi-judicial functions in so far as controversies that by express provision of the law come under its jurisdiction. As to what questions may come within this category, neither the Constitution nor the Revised Election Code specifies. The former merely provides that it shall come under its jurisdiction, saving those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and other election officials, while the latter is silent as to what questions may be brought before it for determination. But it is clear that, to come under its jurisdiction, the questions should be controversial in nature and must refer to the enforcement and administration of all laws

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relative to the conduct of election. The difficulty lies in drawing the demarcation line between a duty which inherently is administrative in character and a function which is justiciable and which would therefore call for judicial action by the Commission. But this much depends upon the factors that may intervene when a controversy should arise. Thus, it has been held that the Commission has no power to annul an election which might not have been free, orderly and honest for such matter devolves upon other agencies of the Government (Nacionalista Party v. Commission on Elections, 85 Phil., 148; 47 Off. Gaz. 2851); neither does it have the power to decide the validity or invalidity of votes cast in an election for such devolves upon the courts or the electoral tribunals (Ibid.); it does not also have the power to order a recounting of the votes before the proclamation of election even if there are discrepancies in the election returns for it is a function of our courts of justice (Ramos v. Commission on Elections, 80 Phil., 722); nor does it have the power to order the correction of a certificate of canvass after a candidate had been proclaimed and assumed office (De Leon v. Imperial, 94 Phil., 680); and only very recently this Court has held that the Commission has no power to reject a certificate of candidacy except only when its purpose is to create confusion in the minds of the electors (Abcede v. Imperial, 103 Phil., 136). On the other hand, it has been held that the Commission has the power to annul an illegal registry list of voters (Feliciano, Et. Al. v. Lugay, Et Al., 93 Phil., 744; 49 Off. Gaz. 3863); to annul an election canvass made by a municipal board of canvassers (Mintu v. Enage, Et Al., G. R. No. L-1834); and to investigate and act on the illegality of a canvass of election made by a municipal board of canvassers (Ramos v. Commission on Elections, 80 Phil., 722). And as to what are the ministerial duties which the Commission on Elections must perform in connection with the conduct of elections, the following resume made by the Commission itself in a controversy which was submitted to it for determination is very enlightening:jgc:chanrobles.com.ph "In the enforcement and administration of all laws relative to the conduct of elections, the first duty of the Commission is to set in motion all the multifarious preparatory processes ranging from the purchase of election supplies, printing of election forms and ballots, appointments of members of the boards of inspectors, establishment of precincts and designation of polling places to the preparation of the registry lists of voters, so as to put in readiness on election day the election machinery in order that the people who are legally qualified to exercise the right of suffrage may be able to cast their votes to express their sovereign will. It is incumbent upon the Commission to see that all these preparatory acts will insure free, orderly and honest elections. All provisions of the Revised Election Code contain regulations relative to these processes preparatory for election day. It is incumbent upon the Commission on Elections to see that all these preparatory acts are carried out freely, honestly and in an orderly manner. It is essential that the Commission or its authorized representatives, in establishing precincts or designating polling places, must act freely, honestly and in an orderly manner. It is also essential that the printing of election forms and the purchase of election supplies and their distribution are done freely, honestly and in an orderly manner. It is further essential that the political parties or their duly authorized representatives who are entitled to be represented in the boards of inspectors must have the freedom to choose the person who will represent them in each precinct throughout the country. It is further essential that once organized, the boards of inspectors shall be given all the opportunity to be able to perform their duties in accordance with law freely, honestly and in an orderly manner, individually and as a whole. In other words, it is the duty of the Commission to see that the boards of inspectors, in all their

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sessions, are placed in an atmosphere whereby they can fulfill their duties without any pressure, influence and interference from any private person or public official. All these preparatory steps are administrative in nature and all questions arising therefrom are within the exclusive powers of the Commission to resolve. All irregularities, anomalies and misconduct committed by any election official in these preparatory steps are within the exclusive power of the Commission to correct. Any erring official must respond to the Commission for investigation. Of these preparatory acts, the preparation of the permanent list of voters is the matter involved in this case, which to our mind is completely an administrative matter." (Decision of the Commission on Elections, October 28, 1951, In Re Petition of Angel Genuino v. Prudente, Et Al., Case No. 196) 1 Considering that the paramount administrative duty of the Commission is to set in motion all the multifarious preparatory processes ranging from the purchase of election supplies, printing of election forms and ballots, appointments of members of the board of inspectors, establishment of precincts and designation of polling places to the preparation of registry lists of voters, so as to put in readiness on election day the election machinery, it may also be reasonably said that the requisitioning and preparation of the necessary ballot boxes to be used in the elections is by the same token an imperative ministerial duty which the Commission is bound to perform if the elections are to be held. Such is the incident which gave rise to the contempt case before us. It stems from the ministerial act of the Commission in requisitioning for the necessary ballot boxes in connection with the last elections and in so proceeding it provoked a dispute between several dealers who offered to do the job. Although the negotiation conducted by the Commission has resulted in controversy between several dealers, that however merely refers to a ministerial duty which the Commission has performed in its administrative capacity in relation to the conduct of elections ordained by our Constitution. In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any judicial function. Such being the case, it could not exercise the power to punish for contempt as postulated in the law, for such power is inherently judicial in nature. As this Court has aptly said: "The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of courts, and, consequently, in the administration of justice" (Slade Perkins v. Director of Prisons, 58 Phil., 271; U. S. v. Loo Hoe, 36 Phil., 867; In Re Sotto, 46 Off. Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.) . Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg v. Decker, 31 N.E. 190; In Re Sims 37 P., 135; Roberts v. Hacney, 58 S.W., 810). We are therefore persuaded to conclude that the Commission on Elections has no power nor authority to submit petitioner to contempt proceedings if its purpose is to discipline him because of the publication of the article mentioned in the charge under consideration. Wherefore, petition is granted. Respondent Commission is hereby enjoined from proceeding with the contempt case set forth in its resolution of June 20, 1957, without pronouncement as to costs. The preliminary injunction issued by this Court is made permanent.

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Paras, C.J., Padilla, Montemayor, Reyes, A., Reyes, J.B.L., Endencia and Felix, JJ., concur. Endnotes:

1. This case has been upheld by the Supreme Court in the certiorari case, G. R. No. L-5222, Prudente, Et. Al. v. Genuino, Et Al., Nov. 6. 1951.

EN BANC G.R. No. L-61998 February 22, 1983 ROGELIO DE JESUS, Petitioner, vs. PEOPLE OF THE PHILIPPINES, et al., Respondents. Jaime G. Fortes for petitioner.chanrobles virtual law library The Solicitor General for respondents. ESCOLIN, J.: The question of law posed for determination in this petition for review on certiorari of the resolution of the Sandiganbayan may be propounded thus: Which of these entities have the power to investigate, prosecute and try election offenses committed by a public officer in relation to his office - the Commission on Elections and the Court of First Instance [now the regional trial court] or the Tanodbayan and the Sandiganbayan? chanrobles virtual law library After the local elections of January 18, 1980, Ananias Hibo defeated candidate of the Nacionalista Party for the office of mayor of the Municipality of Casiguran, Sorsogon filed with the COMELEC a complaint charging petitioner Rogelio de Jesus, then COMELEC registrar of Casiguran, with violation of the 1978 Election Code. Copy of the complaint was sent to the Ministry of Justice which endorsed the same to the Provincial Fiscal of Sorsogon for investigation. Noting that petitioner was being charged in relation to his office, Asst. Fiscals Manuel Genova and Delfin Tarog in their capacity as deputized Tanodbayan prosecutors, conducted an investigation. Thereafter Fiscal Genova issued a resolution finding the existence of a prima facie case against petitioner for violation of section 89 1 and sub-sections [x] 2 and [mm] 3 of Section 178 of the Election Code of 1978. After approval thereof by the Tanodbayan, the following information, dated January 27, 1982, was filed before the Sandiganbayan:chanrobles virtual law library That on or about January 30, 1980 and sometime thereafter to February 6, 1980, in the Municipality of Casiguran Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused while discharging the Office of the Election Registrar in the Municipality of Casiguran, Province of Sorsogon, taking advantage and abusing his official position, did there and there wilfully unlawfully and feloniously by reason of

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his being a registrar knowingly registered persons in order to vote on January 30, 1980 being an election day and at the same time issuing Identification cards during election day, thereby violating the provision of the Election Code of 1978 and at the same time tampering with the election reports by mag it appear that 10,727 persons were the total number of registered voters for the election of January 30, 1980, when in truth and in fact the actual total number of voters as - sported on January 27, 1980 by the accused was only 10,532 but then changed to 10,727, thereby violating the provisions of Section '89' and Section.'178' under Article XVI specifically sub- section 'X' and sub-section 'MM' which is a violation of the Election Code of 1978 to the erosion of public faith and confidence. The case, docketed as SB Criminal Case No. 5054, was raffled to the Second Division of the Sandiganbayan.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner filed a motion to quash the information, contending that neither the Tanodbayan nor the Sandiganbayan has the authority to investigate, prosecute and try the offense chanrobles virtual law library xxx xxx xxx chanrobles virtual law library [x] Any election registrar or any person acting in his behalf who issues or causes the issuance of a voter's certificate of registration or cancels or causes the cancellation thereof the violation of the provisions of this Code.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library [mm] Any person who, without authority, acts as, or assumes r performs any -function of a member of the election committee, or the board of canvassers, or deputy of representative of the Commission. charged in the information, the same being an election offense over which the power to investigate, prosecute and try is lodged by law in the COMELEC and the Court of First Instance. In its opposition, the prosecution maintained the Tanodbayan's exclusive authority to investigate and prosecute offenses committed by public officers and employees in relation to their office, and consequently, the Sandiganbayan's jurisdiction to try and decide the charges against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library The COMELEC, having learned of the pendency of the case, entered its appearance as amicus curiae, and through its law department manager, Atty. Zoilo Gomez, Jr., submitted a memorandum supporting petitioner's stand. 4 chanrobles virtual law library On August 13, 1982, the Sandiganbayan issued the questioned resolution denying the motion to quash. Petitioner's motion for reconsideration was likewise denied. Hence, this petition for review on certiorari.chanroblesvirtualawlibrary chanrobles virtual law library The legal question posed being one of first impression, this, Court resolved to give due course to the petition, treating the same as an original petition for certiorari under Rule 65 of the Rules of Court, the proper mode by which relief from the resolution of the Sandiganbayan could be obtained from this Tribunal. Petitioner and respondents rely on different provisions of

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the 1973 Constitution as bases for their respective contentions. Petitioner invokes Section 2 of Article XII[c] of the 1973 Constitution which vests upon the COMELEC the power "to enforce and administer all laws relative to the conduct of elections," and its implementing legislation, Section 182 of the 1978 Election Code, which provides the following: chanrobles virtual law library Section 182 - Prosecution. The Commission shall, thru its duly authorized legal officer, have the power to conduct preliminary investigation of all election offenses punishable under this Code and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government. Petitioner further cites Section 184 of the same Code which invests the court of first instance with "exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this code except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the city or municipal courts. ... The Solicitor General supports the petitioner's views.5 chanrobles virtual law library Upon the other hand, the Sandiganbayan, in its resolution of August 13, 1982, 6 asserts its jurisdiction over Criminal Case No. 5054 on the authority of Section 5, Article XIII of the Constitution, which mandated the creation by the Batasan Pambansa of "a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices, and such other offenses committed by public officers and employees, including those in government-owned and controlled corporations, in relation to their office as may be determined by law." chanrobles virtual law library To the Sandiganbayan, as set forth in the challenged resolution, ... the key phrase in the determination as to which of the Sandiganbayan or the regular courts of first instance should take cognizance of an election offense, is the phrase, 'in relation to their office'." Thus, it would distinguish between election offenses committed by public officers and employees in relation to their office and those committed not in relation to their office, in this manner: chanrobles virtual law library If the election offense is committed by a public officer or employee NOT in relation to their office, generally, jurisdiction will be assumed by the regular courts. If, on the other hand, the offense was committed by a public officer or employee in relation to their office, then there is no other tribunal vested with jurisdiction to try such offense but this court, in consonance with the mandate of the Constitution that the Sandiganbayan has jurisdiction, lover ... offenses committed by public officers and employees in relation to their office. We find the position of the Sandiganbayan devoid of merit.chanroblesvirtualawlibrary chanrobles virtual law library The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere Idle ceremony of the sacred right and duty of every qualified citizen to vote. To

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divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.chanroblesvirtualawlibrary chanrobles virtual law library From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceive neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office, as contra-distinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978.chanroblesvirtualawlibrary chanrobles virtual law library Under the Constitution, the Sandiganbayan shall have jurisdiction over ... offenses committed by public officers ... in relation to their office as may be determined by law" [Sec. 5, Art. XIII]; while the Office of the Tanodbayan shall "receive and investigate complaints relative to public office." [Sec. 6, Art. XIII]. The clause, "as may be determined by law" is, to Our mind imbued with grave import. It called for a legislation that would define and delineate the power and jurisdiction of both the Tanodbayan and the Sandiganbayan, as what, in fact had been provided for in Presidential Decree Nos. 1606 and 1607, creating the said entities.chanroblesvirtualawlibrary chanrobles virtual law library Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan shall have jurisdiction over: chanrobles virtual law library [a] Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379; chanrobles virtual law library [b] Crimes committed by public officers and employees, including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and, chanrobles virtual law library [c] Other crimes or offenses committed by public officers or employees, including those employed in government-owned or controlled corporations, in relation to their office. Plainly, the above quoted paragraph [c] is but a re-statement of the constitutional provision relating to the Sandiganbayan. It is also to be noted that it is phased in terms so broad and general that it cannot be legitimately construed to vest said entity with exclusive jurisdiction over election offenses committed by public officers in relation to their office. Neither can it be interpreted to impliedly repeal the exclusive and original jurisdiction granted by Section 184 of the Election Code of 1978 to the court of first instance to hear and decide all election offenses, without qualification as to the status of the accused.chanroblesvirtualawlibrary chanrobles virtual law library Apart from the fact that repeals by implication are not favored. it is noted that while Section 184 of the Election Code deals specifically with election offenses, Section 4[c] of P.D. No, 1606 speaks generally of "other crimes or offenses committed by public officers ... in relation to their office." Needless to state, as between specific and general statute, the former must

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prevail since it evinces the legislative intent more clearly than a general statute does. 7 And where a reconciliation between the statute is possible, as in the case at bar, the former should be deemed an exception to the latter.8 chanrobles virtual law library The same principle of statutory construction should be applied with respect to the powers vested upon the COMELEC and the Tanodbayan in so far as election offenses are concerned.chanroblesvirtualawlibrary chanrobles virtual law library Moreover, as aptly observed by the COMELEC as well as the Solicitor General, splitting the jurisdiction over election offenses would serve no beneficial purpose but would rather spawn much controversy - "complaints about unequal protection, about inconsistent decisions, etc. (which are) not conducive to a fair and speedy administration of justice." [p. 17, Comment, Solicitor General].chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the resolution of the Sandiganbayan Second Division dated August 13, 1982 is hereby set aside and Criminal Case No. 5054. entitled "People of the Philippines versus Rogelio de Jesus" is ordered dismissed. The COMELEC is hereby directed to forthwith conduct an investigation, and if the evidence so warrants, to prosecute the complaint against petitioner before the proper court of first instance. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Fernando, C.J., Makasiar, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Teehankee, J., reserves his vote.chanroblesvirtualawlibrary chanrobles virtual law library Aquino, J., is on leave.chanroblesvirtualawlibrary chanrobles virtual law library Abad Santos, J., I reserve my vote. Endnotes:

1 Section 89 of the 1978 Election Code provides: Sec. 89. Certified list of voters.- Not later than three days before the day of the election, the election registrar and the members of the citizens election committee shall prepare and certify, in three copies, a complete list of voters for each voting center containing the names, in alphabetical order, and addresses of all voters registered in the city, municipality or municipal district based on the approved applications in the books of voters. One copy should be delivered to the election committee together with the books of voters for use on election day, one copy shall be delivered to the barangay captain concerned who shall inform the voters of their voting center, and the third copy shall be retained by the election registrar.chanrobles virtual law library

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2&3 Sub-sections "x" and "mm" of Section 178 of the 1978 Election petition Code read as follows: "Sec. 178. Prohibited Acts.- The following shall be guilty of an election offense: 4 Annex "F", p. 47, Rollo.chanrobles virtual law library 5 Solicitor General's Comment dated January 11, 1983.chanrobles virtual law library 6 p. 124, Rollo.chanrobles virtual law library 7 Lacsamana, vs. Baltazar, 92 Phil. 32; Wilhemsen vs. Baluyot, 83 SCRA 38.chanrobles virtual law library 8 Lichauco vs. Apostol, 44 Phil. 138; Butuan Saw Mill Inc. vs. City of Butuan, et al, 16 SCRA 755.

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EN BANC G.R. No. 129417 February 10, 1998 COMMISSION ON ELECTIONS, Petitioner, vs. HON. LORENZO R. SILVA, JR., as Presiding Judge, RTC, Branches 2 and 3, Balanga, Bataan, HON. BENJAMIN T. VIANZON, as Presiding Judge, Branch 1, of the same Court, ERASTO TANCIONGCO, and NORMA CASTILLO, Respondents.

MENDOZA, J.: This case presents for determination the extent of control which those designated by the Commission on Elections have in the prosecution of election offenses. The facts are not in dispute. Pursuant to its power under Art. IX-C, 2(6) of the Constitution, the COMELEC charged private respondents Erasto Tanciongco and Norma Castillo with violations of 27 of R.A. No. 6646, together with Zenon Uy, in twelve separate informations filed with the Regional Trial Court of Bataan. Tanciongco, who is provincial prosecutor of Bataan, was vice chairman, while Castillo, who is division superintendent of schools, was secretary of the Provincial Board of Canvassers of Bataan. Uy, who is assistant regional director of elections, was chairman of the board. In each information, the three were accused of having tampered, in conspiracy with one another, with the certificates of canvass by increasing the votes received by then senatorial candidate Juan Ponce Enrile in certain municipalities of Bataan in the May 8, 1995 elections. The twelve cases were raffled to three branches of the court presided over the respondent judges, Honorable Lorenzo R. Silva Jr. (Branches 2 and 3) and Honorable Benjamin T. Vianzon (Branch 1). On October 30, 1996, Tanciongco and Castillo filed a joint "Omnibus Motion for Examination of Evidence to Determine the Existence of Probable Cause; Suspension of Issuance of Warrant of Arrest; and Dismissal of the Cases." Chief State Prosecutor Jovencito Zuño, who had been Page 394 of 492

designated by the Commission on Elections to prosecute the cases, filed a comment joining in private respondents' request. On the other hand, the complainant, Aquilino Q. Pimentel, Jr. expressed no objection to the dismissal of the cases against the two. 1 In orders dated March 31, and April 7, 1997, respectively, Judges Silva and Vianzon summarily dismissed the cases against private respondents. 2 The COMELEC sought to appeal the dismissal of the cases to the Court of Appeals by filing notices on April 18, 1997, 3 but the judges denied due course to its appeal. The sole basis for the denials was the fact that the prosecutor, whom the COMELEC had deputized to prosecute the cases, had earlier taken a contrary stand against the COMELEC. Thus, in his order, dated May 16, 1997, denying due course to the Notice of Appeal of the COMELEC in Criminal Case Nos. 6439, 6441, 6443, 6445, 6646, 6647, and 6470, Judge Silva, Jr. stated: A Notice of Appeal dated April 18, 1997, in the above-entitled cases was filed on April 23, 1997 by Jose P. Balbuena, Director IV, Law Department, Commission on Elections, from the Order of the Court dated March 31, 1997, insofar as it dismissed the above-entitled cases as regards the accused Erasto Tanciongco and Norma P. Castillo. Chief State Prosecutor Jovencito Zuño who has been authorized by the Commission on Elections to prosecute the cases, was required to comment on the Notice of Appeal which does not bear his signature. In his comment dated May 9, 1997, the Chief State Prosecutor states that he cannot give his conformity to the Notice of Appeal filed by Jose P. Balbuena of the Comelec as it would not be consistent with his position that he would abide by whatever finding the court may come up with on the existence of probable cause as against the accused Erasto Tanciongco and Norma Castillo. Consequently, the notice of appeal filed by Jose P. Balbuena is unauthorized and without legal effect. WHEREFORE, the Notice of Appeal dated April 13, 1997, filed by Jose P. Balbuena is denied due course. 4 SO ORDERED. Judge Vianzon took a similar course in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471. In his ordedr of May 23, 1997, he stated: Considering that Chief State Prosecutor Jovencito R. Zuño has filed his comment to the Notice of Appeal filed by Director Jose P. Balbuena of the COMELEC, manifesting his non-conformity with the same because of his previous commitment to abide by the ruling of this court on the Omnibus Motion filed by accused Tanciongco and Castillo and the Motion to Quash filed by accused Uy, and considering further that Chief State Prosecutor has been duly deputized by the COMELEC en banc to handle the prosecution of this case, the said Notice of Appeal is hereby DENIED. SO ORDERED. 5

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Hence this petition for certiorari and mandamus seeking the nullification of the orders of the two judges, denying due course to the Notices of Appeal of the COMELEC. 6 The issue is not just the right of the prosecution to appeal from the previous orders of dismissal. It is settled that the approval of a notice of appeal, in cases where no record on appeal is required by law, is a ministerial duty of the court to which the notice of appeal is addressed, provided that such appeal is timely filed. 7 Of course in criminal cases the prosecution cannot appeal if the accused would thereby be placed in double jeopardy, but here the cases were dismissed by the judges before the accused were arraigned and, therefore, jeopardy has not attached. For while the right to appeal is statutory and is not constitutional, once it is granted by statute, its denial would be a violation of the due process clause of the Constitution. 8 The ultimate question concerns the authority of the COMELEC prosecutor. More precisely, the question is, who has authority to decide whether or not to appeal from the orders of dismissal - the COMELEC or its designated prosecutor? The trial courts held the view that the Chief State Prosecutor's decision not to appeal the dismissal of the cases, consistent with his earlier decision to leave the determination of the existence of probable cause to the trial courts, was binding on them. We think this view to be mistaken. The authority to decide whether or not to appeal the dismissal belongs to the COMELEC. Art. IX-C, 2(6) of the Constitution expressly vests in it the power and function to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." As this Court has held: In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC. 9 Indeed, even before the present Constitution, the Omnibus Election Code (B.P. Blg. 881) and, before it, the 1971 Election Code (R.A. No. 6388) and the 1978 Election Code (P.D. No. 1296) already gave the COMELEC the exclusive power to conduct preliminary investigation of all election offenses and to prosecute them in court. 10 The purpose is to place in the hands of an independent prosecutor the investigation and prosecution of election offenses. 11 Prosecutors designated by the COMELEC to prosecute the cases act as its deputies. They derive their authority from it and not from their offices. 12 Consequently, it was beyond the power of Chief State Prosecutor Zuño to oppose the appeal of the COMELEC. For that matter, it was beyond his power, as COMELEC-designated prosecutor, to leave to the trial courts the determination of whether there was probable cause for the filing of the cases and, if it found none, whether the cases should be dismissed. Those cases were filed by the COMELEC after appropriate preliminary investigation. If the Chief State Prosecutor thought there was no probable cause for proceeding against private respondents, he should have discussed the matter with the COMELEC and awaited its instruction. If he disagreed with the COMELEC's

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findings, he should have sought permission to withdraw from the cases. But he could not leave the determination of probable cause to the courts and agree in advance to the dismissal of the cases should the courts find no probable cause for proceeding with the trial of the accused. It was, therefore, grave abuse of discretion on the part of the respondent judges to rely on the manifestation of Chief State Prosecutor Zuño as basis for denying due course to the notices of appeal filed by the COMELEC. Whether respondent judges also erred in dismissing the cases filed by the COMELEC - indeed, whether the trial courts at that stage were justified in inquiring into the existence of probable cause because of exceptional reasons 13 - must be determined in the appeal after it is allowed. Here we only hold that whether the orders of dismissal should be appealed is for the COMELEC to decide, not for Chief State Prosecutor Zuño whom it has merely deputized to represent in it court. Private respondents have nothing to say on this question. Their sole contention is that the petition should be dismissed because, so it is argued, it should have been brought in the name of the People of the Philippines and have been filed by the Solicitor General. This contention is without merit. This is not the first time the COMELEC has come to this Court in its own name in regard to an action taken against it in cases filed by it in the lower courts. In Commission on Elections v. Court of Appeals 14 the COMELEC's right to appeal from the decision of the Court of Appeals dismissing a criminal case filed by it was sustained. This Court said: The COMELEC has sufficient interest in filing the petition [for certiorari] to set aside the decision of the Court of Appeals having sustained the demurrer to evidence in the criminal vase against private respondent for violation of the Election Laws. This is so, for it is not only entrusted with the duty to enforce the said law but also to prosecute all election offenses. Under the Constitution, the COMELEC has the power to "prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices" (Art. IX [C], Sec. 2[6]), and under the Omnibus Election Code, (BP Blg. 881), it may avail of the assistance of other prosecution arms of the government (Sec. 265). Thus, the COMELEC Rules of Procedure gave the Chief State, Provincial and City Prosecutors a continuing authority "as disputes" to prosecute offenses punishable under the Election laws (COMELEC Rules of Procedure, Part 12, Rule 34, Sec. 2). We have allowed government agencies to handle their cases before appellate courts, to the exclusion of the Solicitor General. 15 In Commission on Elections v. Romillo 16 the right of the COMELEC to file a petition for certiorari and mandamus to question the dismissal of criminal cases which it had filed for violation of the Election Code was assumed. Although the petition was eventually dismissed, the ruling was based not on the lack of authority of the COMELEC to file the petition but on this Court's determination that the dismissal of the criminal cases by the trial court was correct, considering that the evidence was insufficient.

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Indeed, under the Rules of Court, the proper party who can file a petition for certiorari, prohibition or mandamus is the person "aggrieved" by the action of a tribunal, board or official because such action was taken without or in excess of jurisdiction or with grave abuse of discretion or in willful neglect of duty. 17 In contrast to an appealed case which is brought in the name of the parties in the court of origin and for this reason retains its title below, the case, which is an original action, is brought by him. 18 In this case, denied by the courts below the authority to prosecute the criminal actions because they recognized instead the Chief State Prosecutor as the representative of the People, the COMELEC had to bring this suit to seek vindication of its authority. Naturally, the petition has to be brought in its name as the "aggrieved" party. In Assistant Provincial Fiscal of Bataan v. Dollete, 19 this Court granted a petition for certiorari, which the fiscal had filed in his name, to annul an order of the trial court denying his right to make an independent examination of the witnesses for the prosecution for the purpose of satisfying himself of the sufficiency of the evidence. Considering the authority of the COMELEC over the prosecution of election offenses, its decision to bring this instant petition forcertiorari and mandamus is conclusive on the Solicitor General. It would simply be a matter of referring this case to the Solicitor General so that, if he agrees, he may take over the conduct of this case. Otherwise, the COMELEC could just continue handling this case as it has actually done. Hence, the omission of the COMELEC to refer this petition to the Office of the Solicitor General for representation should be disregarded. To make the filing of this case depend on his decision would be to place him in the same position in which respondent judges placed Chief State Prosecutor Zuño. That would further negate the constitutional function of the COMELEC. WHEREFORE, the petition if GRANTED. The orders dated May 16, 1997 and May 23, 1997 of respondent judges are hereby SET ASIDE as null and void and respondent judges are ORDERED to give due course to the appeals of petitioner from their respective orders in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471 (filed in Branch 1); Criminal Case Nos. 6439, 6441, 6443, 6445, 6446 and 6470 (filed in Branch 2); and Criminal Case No. 6447 (filed in Branch 3). SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Puno, Vitug, Kapunan, Francisco, Panganiban, Martinez, Quisumbing and Purisima,JJ., concur. Bellosillo and Melo, JJ., concur in the result. Endnotes: 1 Rollo, pp. 79 and 81. 2 Id., pp. 80 and 85.

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3 Id., pp. 86 and 88. 4 Id., p. 91 5 Rollo, p. 92. 6 The COMELEC alleges in its petition: 1. This is a petition for certiorari and mandamus under Rule 65 of the Revised Penal Code of Court, to declare as null and void the Orders issued by respondents Judge Lorenzo R. Silva, Jr., and Judge Benjamin T. Vianzon, of the Regional Trial Court, Branches 1, 2 and 3, Balanga, Bataan, namely: (a) Order dated May 16, 1997, denying due course to the Notice of Appeal dated April 18, 1997, filed by petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6439, 6441, 6446, 6443, 6445, 6470, and 6447, and (b) Order dated My 23, 1997, denying due course to the Notice of Appeal dated April 18, 1997, filed by petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6438, 6440, 6442, 6444 and 6471, and to compel said respondent Judges to approve the notice of appeal filed by petitioner in the aforesaid cases. 7 See 1997 Rules of Civil Procedure, Rule 41; Santos v. Court of Appeals, 253 SCRA 632 (1996). 8 Estoya v. Abraham-Singson, 237 SCRA 1, 19 (1994.) 9 People v. Inting, 187 SCRA 788, 799 (1990). 10 The OMNIBUS ELECTION CODE provides: "Sec. 265. Prosecution - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted." 11 Compare De Jesus v. People, 120 SCRA 760, 765-766 (1983): "The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate." Reiterated in Corpus v. Tanodbayan, 149 SCRA 281, 283 (1987).

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12 People v. Basilla, 179 SCRA 87 (1989); People v. Inting, 187 SCRA 788 (1990). 13 Unless there are exceptional circumstances justifying inquiry, such as those enumerated by this Court in Broka v. Enrile, 192 SCRA 183, 188-189 (1990), it is to be presumed that in filing cases in court, the prosecutor found probable cause. If a court inquires at all into the existence of probable cause, it is only for the purpose of determining whether a warrant of arrest should issue, but not whether the cases should be dismissed (See Roberts, Jr. v. Court of Appeals, 254 SCRA 307, 349 (1996) (Narvasa, C.J., concurring); Webb v. De Leon, 247 SCRA 652 (1995). 14 229 SCRA 501 (1994). 15 Id., at 505. 16 158 SCRA 716 (1988). 17 Rule 65, 1-3. 18 Rule 44, 1. 19 103 Phil. 914 (1958).

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EN BANC [G.R. NO. 160427 : September 15, 2004] POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG MASCARA,Petitioners, v. COMMISSION ON ELECTIONS and EO ESMAEL MAULAY, Acting Election Officer, Tamparan, Lanao del Sur or whoever is acting on his behalf,Respondents. DECISION CARPIO, J.: The Case Challenged in this Petition for Certiorari1 with prayer for temporary restraining order and preliminary injunction is the Resolution of the Commission on Elections en banc ("COMELEC")2 dated 8 October 2003. The COMELEC declared a failure of election but refused to conduct another special election. The Facts In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections ("elections"), Polala Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar ("Abubacar"), Macabigung Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran for re-election as punong barangayin their respective barangays, namely: Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South ("five barangays"), all in Tamparan, Lanao del Sur. Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays in Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer Esmael Maulay ("EO Maulay") issued a certification that there were no special elections held on 13 August 2002.

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Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners") filed a Joint Petition seeking to declare a failure of elections in the five barangays and the holding of another special election. The Joint Petition attributed the failure of the special elections to EO Maulay's non-compliance with COMELEC Commissioner Mehol K. Sadain's ("Commissioner Sadain") directive. Commissioner Sadain had directed EO Maulay to use the Autonomous Region of Muslim Mindanao ("ARMM") 2001 computerized Voter's List and the Voter's Registration Records of the Provincial Election Officer during the December 2001 registration of new voters. The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel appeared. The COMELEC ordered the parties to submit their memoranda within 20 days. The COMELEC also directed EO Maulay to explain in writing why he should not be administratively charged for failing to comply with Commissioner Sadain's directive. The joint-petitioners filed their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a written explanation as directed. The COMELEC considered the case submitted for resolution. On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows: ACCORDINGLY, the Department of Interior and Local Government is herebyDIRECTED to proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK Chairmen and SK Kagawads in Barangays Occidental Linuk,Pindolonan Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud, all of Tamparan, Lanao del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and other related laws on the matter. Let a copy of this Resolution be furnished to the Department of Interior and Local Government, the Municipality of Tamparan, Lanao [d]el Sur, and the respective Sangguniang Barangays of Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South and New Lumbacaingud, of Tamparan. Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s, and consequently, the filing of administrative charges against him if warranted. SO ORDERED.3 Sambarani, Miraato, Abubacar and Mascara ("petitioners") filed the instant petition.4 The COMELEC's Ruling The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the five barangays failed. The COMELEC, however, ruled that to hold another special election in these barangays as prayed for by petitioners is untenable. The COMELEC explained that it is no longer in a position to call for another special election since Section 6 of the Omnibus Election Code provides that "special elections shall be held on a date reasonably close to the date of the election not held, but not later than thirty days after cessation of the cause of such

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postponement." The COMELEC noted that more than thirty days had elapsed since the failed election. The COMELEC also pointed out that to hold another special election in these barangays will not only be tedious and cumbersome, but a waste of its precious resources. The COMELEC left to the Department of Interior and Local Government ("DILG") the process of appointing the Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan ("SK") Chairmen and SK Kagawads in these barangays "in accordance with the Local Government Code of 1991 and other related laws on the matter."5 The Issues Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in ' 1. Denying the prayer to call for another special election in barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays"); 2. Directing the DILG to proceed with the appointment of the barangay captains, barangay kagawads, SK chairmen and SK kagawads in the subject barangays; 3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office until their successors have been elected and qualified. The Court's Ruling The petition is meritorious. First Issue: Whether To Call Another Special Election Petitioners fault the COMELEC for not holding another special election after the failed 13 August 2002 special election. Petitioners insist that the special barangay and SK elections in the subject barangays failed because EO Maulay did not use the voter's list used during the 2001 ARMM elections. Neither did Maulay segregate and exclude those voters whose Voter's Registration Records ("VRRs") were not among those 500 VRRs bearing serial numbers 00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not delete from the certified list of candidates the name of disqualified candidate Candidato Manding. Petitioners contend that COMELEC's refusal to call another special election conflicts with established jurisprudence, specifically the ruling in Basher v. Commission on Elections.6 The Solicitor General supports the COMELEC's stance that a special election can be held only within thirty days after the cause of postponement or failure of election has ceased. The Solicitor General also maintains that the DILG has the power to appoint and fill vacancies in the concerned elective barangay and SK offices.

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Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." Indisputably, the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve its primordial objective of holding free, orderly, honest, peaceful and credible elections.7 The functions of the COMELEC under the Constitution are essentially executive and administrative in nature. It is elementary in administrative law that "courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies."8 The authority given to COMELEC to declare a failure of elections and to call for special elections falls under its administrative function.9 The marked trend in our laws has been to grant the COMELEC ample latitude so it can more effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in this case, the COMELEC refuses to hold elections due to operational, logistical and financial problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second special Barangay and SK elections in the subject barangays?chanroblesvirtualawlibrary Neither the candidates nor the voters of the affected barangays caused the failure of the special elections. The COMELEC's own acting election officer, EO Maulay, readily admitted that there were no special elections in these barangays. The COMELEC also found that the Provincial Election Supervisor of Lanao del Sur and the Regional Election Director of Region XII did not contest the fact that there were no special elections in these barangays. An election is the embodiment of the popular will, the expression of the sovereign power of the people.10 It involves the choice or selection of candidates to public office by popular vote.11 The right of suffrage is enshrined in the Constitution because through suffrage the people exercise their sovereign authority to choose their representatives in the governance of the State. The fact that the elections involved in this case pertain to the lowest level of our political organization is not a justification to disenfranchise voters. COMELEC anchored its refusal to call another special election on the last portion of Section 6 of the Omnibus Election Code ( "Section 6") which reads: SEC. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous cases the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. (Emphasis supplied)cralawlibrary

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The Court construed Section 6 in Pangandaman v. COMELEC,12as follows ' In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case. Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held." (Emphasis supplied)cralawlibrary The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is absolute. The COMELEC has broad power or authority to fix other dates for special elections to enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot be reasonably held within the period prescribed by law. More in point is Section 45 of the Omnibus Election Code ("Section 45") which specifically deals with the election of barangay officials. Section 45 provides: SEC. 45. Postponement or failure of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission, upon a verified petition of an interested party and after due notice and hearing at which the interested parties are given equal opportunity to be heard, shall postpone the election therein for such time as it may deem necessary. If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the election in any barangay has not been held on the date herein fixed or has been suspended before the hour fixed by law for the closing of the voting therein and such failure or suspension of election would affect the result of the election, the Commission, on the basis of a verified petition of an interested party, and after due notice and hearing, at which the interested parties are given equal opportunity to be heard shall call for the holding or continuation of the election within thirty days after it shall have verified and found that the cause or causes for which the election has been postponed or suspended have ceased to exist or upon petition of at least thirty percent of the registered voters in the barangay concerned. When the conditions in these areas warrant, upon verification by the Commission, or upon petition of at least thirty percent of the registered voters in the barangay concerned, it shall order the holding of the barangay election which was postponed or suspended. (Emphasis supplied)cralawlibrary

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Unlike Section 6, Section 45 does not state that special elections should be held on a date reasonably close to the date of the election not held. Instead, Section 45 states that special elections should be held within thirty days from the cessation of the causes for postponement. Logically, special elections could be held anytime, provided the date of the special elections is within thirty days from the time the cause of postponement has ceased. Thus, in Basher13 the COMELEC declared the 27 May 1997 barangay elections a failure and set special elections on 12 June 1997 which also failed. The COMELEC set another special election on 30 August 1997 which this Court declared irregular and void. On 12 April 2000, this Court ordered the COMELEC "to conduct a special election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible." This despite the provision in Section 214 of Republic Act No. 6679 ("RA 6679")15stating that the special barangay election should be held "in all cases not later than ninety (90) days from the date of all the original election." Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it would not be as pressed for time as it is now. The operational, logistical and financial problems which COMELEC claims it will encounter with the holding of a second special election can be solved with proper planning, coordination and cooperation among its personnel and other deputized agencies of the government. A special election will require extraordinary efforts, but it is not impossible. In applying election laws, it would be better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.16 In any event, this Court had already held that special elections under Section 6 would entail minimal costs because it covers only the precincts in the affected barangays.17 In this case, the cause of postponement after the second failure of elections was COMELEC's refusal to hold a special election because of (1) its erroneous interpretation of the law, and (2) its perceived logistical, operational and financial problems. We rule that COMELEC's reasons for refusing to hold another special election are void. Second and Third Issues: Whether the DILG may Appoint the Barangay and SK Officials Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent elective punong barangaysin the four barangays,18 they should remain in office in a hold over capacity until their successors have been elected and qualified. Section 5 of Republic Act No. 9164 ("RA 9164")19 provides: Sec. 5. Hold Over. - All incumbent barangay officials and sangguniang kabataan officials shall remain in office unless sooner removed or suspended for cause until their successors shall have been elected and qualified. The provisions of the Omnibus Election Code relative to failure of elections and special elections are hereby reiterated in this Act. RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term of office of barangay and SK officials, and provides for the qualifications of candidates and voters for the SK elections.

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As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this Court to apply the plain meaning of the language of Section 5. Since there was a failure of elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections, petitioners can legally remain in office as barangay chairmen of their respective barangays in a hold-over capacity. They shall continue to discharge their powers and duties as punong barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local Government Code limits the term of elective barangay officials to three years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may continue in office in a hold over capacity until their successors are elected and qualified. Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent barangay officials xxx shall remain in office unless sooner removed or suspended for cause xxx until their successors shall have been elected and qualified." Section 8 of the same RA 6679 also states that incumbent elective barangay officials running for the same office "shall continue to hold office until their successors shall have been elected and qualified." The application of the hold-over principle preserves continuity in the transaction of official business and prevents a hiatus in government pending the assumption of a successor into office.20 As held inTopacio Nueno v. Angeles,21 cases of extreme necessity justify the application of the hold-over principle. WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections dated 8 October 2003 is declared VOID except insofar as it directs its Law Department to conduct a preliminary investigation of Esmael Maulay for possible commission of election offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over capacity until their successors shall have been elected and qualified. The Commission on Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within thirty (30) days from finality of this decision. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, TINGA, and Chico-Nazario,JJ., concur. Endnotes:

1

Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.

2

Composed of Benjamin S. Abalos, Sr. as Chairman, with Commissioners Luzviminda G. Tancangco, Rufino SB. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra and Florentino A. Tuason, Jr. 3

Rollo, p. 29.

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4

Dayondong of Barangay Tatayawan South did not join the instant petition.

5

Rollo, p. 28.

6

386 Phil. 954 (2000).

7

Pangandaman v. COMELEC, 377 Phil. 297 (1999).

8

Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109583, 11 October 2000, 342 SCRA 549. 9

Ampatuan v. COMELEC, 426 Phil. 201 (2002).

10

Taule v. Santos, G.R. No. 90336, 12 August 1991, 200 SCRA 512.

11

Ibid.

12

Supra note 7.

13

Supra note 6.

14

Section 2 of RA 6679 provides:

SEC. 2. When for any serious cause such as rebellion, insurrection, violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission on Elections motu proprio or upon sworn petition of ten (10) registered voters of a barangay, after summary proceedings of the existence of such grounds, shall suspend or postpone the election therein to a date reasonably close to the date of the election that is not held or is suspended or postponed, or which resulted in a failure to elect, but not later than thirty (30) days after the cessation of the cause for such suspension or postponement of the election or failure to elect, and in all cases not later than ninety (90) days from the date of all the original election. 15

AN ACT TO AMEND REPUBLIC ACT NO. 6653 TO POSTPONE THE BARANGAY ELECTIONS TO MARCH 28, 1989, PRESCRIBING ADDITIONAL RULES GOVERNING THE CONDUCT OF BARANGAY ELECTIONS AND FOR OTHER PURPOSES. 16

Malabaguio v. Commission on Elections, G.R. No. 142507, 1 December 2000, 346 SCRA 699; Maruhom v. Comelec, 387 Phil. 491 (2000). 17

Lucero v. Commission on Elections, G.R. NOS. 113107 and 113509, 20 July 1994, 234 SCRA 280. 18

Now only four, since Dayondong of Tatayawan South no longer joined this petition.

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19

AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT. NO. 7160, AS AMENDED, OTHERWISE KNOWN AS THE "LOCAL GOVERNMENT CODE OF 1991," AND FOR OTHER PURPOSES. 20

State ex rel. Coe v. Lee, 147 Fla 464; Burnett v. Brown, 194 Va. 103.

21

76 Phil. 12 (1946).

EN BANC [G.R. No. 133676. April 14, 1999.] TUPAY T. LOONG, Petitioner, v. COMMISSION ON ELECTIONS and ABDUSAKUR TAN,Respondents. DECISION PUNO, J.: In a bid to improve our elections, Congress enacted R.A. No. 8436 on December 22, 1997 prescribing the adoption of an automated election system. The new system was used in the May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the COMELEC Task Force to have administrative oversight of the elections in Sulu.chanroblesvirtuallawlibrary The voting in Sulu was relatively peaceful and orderly. 1 The problem started during the automated counting of votes for the local officials of Sulu at the Sulu State College. At about 6 a.m. of May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies between the election returns and the votes cast for the mayoralty candidates in the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed that votes in favor of a mayoralty candidate were not reflected in the printed election returns. He suspended the automated counting of ballots in Pata and immediately communicated the problem to the technical experts of COMELEC and the suppliers of the automated machine. After consultations, the experts told him that the problem was caused by the misalignment of

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the ovals opposite the names of candidates in the local ballots. They found nothing wrong with the automated machines. The error was in the printing of the local ballots, as a consequence of which, the automated machines failed to read them correctly. 2 At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meeting of the local candidates and the military-police officials overseeing the Sulu elections. Those who attended were the various candidates for governor, namely, petitioner Tupay Loong, private respondent Abdusakur Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival Subala, AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command and congressional candidate Bensandi Tulawie. 3 The meeting discussed how the ballots in Pata should be counted in light of the misaligned ovals. There was lack of agreement. Those who recommended a shift to manual count were Brig. Generals Espinosa and Subala, PNP Director Alejandrino, gubernatorial candidates Tan and Tulawie and congressional candidate Bensandi Tulawie. Those who insisted on an automated count were gubernatorial candidates Loong and Jikiri. In view of their differences in opinion, Atty. Tolentino, Jr. requested the parties to submit their written position papers. 4 Reports that the automated counting of ballots in other municipalities in Sulu was not working well were received by the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the automated machines. These municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were rejected because they had the wrong sequence code. 5 Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to the COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the suspension of the automated counting of ballots throughout the Sulu province. 6 On the same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the municipality of Pata. The resolution reads: 7 "x

x

x

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, to suspend or stop counting of ballots through automation (sic) machines for the following grounds, quoted to wit:chanrob1es virtual 1aw library ‘1. The Election Returns for the Municipality of Pata, Province of Sulu-District II do not reflect or reveal the mandate of the voters:chanrob1es virtual 1aw library ‘DISCUSSIONS ‘That the watchers called the attention of our political leaders and candidates regarding their discovery that the election returns generated after the last ballots for a precinct is scanned revealed that some candidates obtained zero votes, among others the Provincial Board Members, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCD-UMDP; ‘That the top ballot, however, reveals that the ballots contained votes for Anton Burahan, candidate for Municipal Mayor while the Election Return shows zero vote;

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‘That further review of the Election Return reveals that John Masillam, candidate for Mayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the total number of voters who actually voted; ‘The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll clerks and members of the Board of Election Inspectors (BEI) such as Rena Jawan, Matanka Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma Marawali to mention some; ‘The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, Task Force Sulu, whose attention was called regarding the discrepancies; ‘The foregoing is a clear evidence that the automated machine (scanner) cannot be relied upon as to truly reflect the contents of the ballots. If such happened in the Municipality of Pata, it is very possible that the same is happening in the counting of votes in the other municipalities of this province. If this will not be suspended or stopped, the use of automated machines will serve as a vehicle to frustrate the will of the sovereign people of Sulu; ‘Wherefore, the foregoing premises considered and in the interest of an honest and orderly election, it is respectfully prayed of this Honorable Commission that an Order be issued immediately suspending or stopping the use of the automated machine (scanner) in the counting of votes for all the eighteen (18) municipalities in the Province of Sulu and in lieu thereof, to avoid delay, counting be done through the usual way and known and tested by us.’ "While the commission does not agree with the conclusions stated in the petition, and the failure of the machine to read the votes may have been occasioned by other factors, a matter that requires immediate investigation, but in the public interest, the Commission, ‘RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting of votes shall be done manually in the Municipality of PATA, the only place in Sulu where the automated machine failed to read the ballots, subject to notice to all parties concerned." ‘chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his report and recommendation, urging the use of the manual count in the entire Province of Sulu, viz: 8 "The undersigned stopped the counting in the municipality of Pata since he discovered that votes for a candidate for mayor was credited in favor of the other candidate. Verification with the Sulu Technical Staff, including Pat Squires of ES & S, reveals that the cause of the error is the way the ballot was printed. Aside from misalignment of the ovals and use of codes assigned to another municipality (which caused the rejection of all local ballots in one precinct in Talipao), error messages appeared on the screen although the actual condition of the ballots would have shown a different message. Because of these, the undersigned directed that counting for all ballots in Sulu be stopped to enable the Commission to determine the problem and rectify the same. It is submitted that stopping the counting is more in consonance with the Commission’s mandate than proceeding with an automated but inaccurate count.

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"In view of the error discovered in Pata and the undersigned’s order to suspend the counting, the following documents were submitted to him. "1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for manual counting and canvassing; "2. Petition of Governor Sakur Tan for manual counting; "3. Position paper of Tupay Loong, Benjamin Loong, and Asani Tamang for automated count; "4. MNLF Position for automated count; and "5. Recommendation of General E. V. Espinosa, General PM Subala, and PD CS Alejandrino for manual count; "Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended to tame a disorderly crowd, inside and outside SSC, or a show of force. "It is submitted that since an error was discovered in a machine which is supposed to have an error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend to the other municipalities. Whether or not this is true, it would be more prudent to stay away from a lifeless thing that has sown tension and anxiety among and between the voters of Sulu. Respectfully submitted:chanrob1es virtual 1aw library 12 May 1998 (SGD.) JOSE M. TOLENTINO, JR."cralaw virtua1aw library The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving Atty. Tolentino, Jr.’s recommendation and the manner of its implementation as suggested by Executive Director Resurreccion Z. Borra. The Resolution reads: 9 "In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurreccion Z. Borra, pertinent portion of which is quoted as follows:jgc:chanrobles.com.ph "In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which resolved to order that the counting of votes shall be done manually in the municipality of Pata, the only place in Sulu where the automated counting machine failed to read the ballots, subject to notice to all parties concerned, please find the following:jgc:chanrobles.com.ph "1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu, addressed to the Executive Director on the subject counting and canvassing in the municipality of Pata due to the errors of the counting of votes by the machine brought about by the error in the printing of the ballot, causing misalignment of ovals and use of codes assigned to another municipality. He recommended to revert to the manual counting of votes in the whole of Sulu. He attached the stand of Congressman Tulawie, Governor Sakur Tan and recommendation of Brigadier

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General Edgardo Espinosa, General Percival Subala, P/Supt. Charlemagne Alejandrino for manual counting. The position paper of former Governor Tupay Loong, Mr. Benjamin Loong and Mr. Asani S. Tamang, who are candidates for Governor and Congressman of 1st and 2nd Districts respectively, who wanted the continuation of the automated counting. "While the forces of AFP are ready to provide arm (sic) security to our Comelec officials, BEIs and other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per report received, the MNLF forces are readying their forces to surround the venue for automated counting and canvassing in Sulu in order that the automation process will continue.chanrobles law library "Director Borra recommends, that while he supports Minute Resolution No. 98-1747, implementation thereof shall be done as follows:jgc:chanrobles.com.ph "1. That all the counting machines from Jolo, Sulu be transported back by C130 to Manila and be located at the available space at PICC for purposes of both automated and manual operations. This approach will keep the COMELEC officials away from violence and bloodshed between the two camps who are determined to slug each other as above mentioned in Jolo, Sulu. Only authorized political party and candidate watchers will be allowed in PICC with proper security, both inside and outside the perimeters of the venue at PICC. "2. With this process, there will be an objective analysis and supervision of the automated and manual operations by both the MIS and Technical Expert of the ES & S away from the thundering mortars and the sounds of sophisticated heavy weapons from both sides of the warning factions. "3. Lastly, it will be directly under the close supervision and control of Commission on Elections En Banc. "RESOLVED:jgc:chanrobles.com.ph "1. To transport all counting machines from Jolo, Sulu by C130 to Manila for purposes of both automated and manual operations, with notice to all parties concerned; "2. To authorize the official travel of the board of canvassers concerned for the conduct of the automated and manual operations of the counting of votes at PICC under the close supervision and control of the Commission En Banc. For this purpose, to make available a designated space at the PICC; "3. To authorize the presence of only the duly authorized representative of the political parties concerned and the candidates watchers both outside and inside the perimeters of the venue at PICC."cralaw virtua1aw library Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 98-1750 and called for another meeting the next day, May 14, 1998, to discuss the implementation of the resolution. 10 The meeting was attended by the parties, by Lt. Gen. Joselin Nazareno, then the Chief of the AFP Southern Command, the NAMFREL, media, and the public. Especially discussed was the manner of transporting the ballots and the counting machines to the PICC in Manila. They agreed to allow each political party to have at least one (1) escort/watcher for

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every municipality to accompany the flight. Two C130s were used for the purpose. 11 On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796 laying down the rules for the manual count, viz: 12 "In the matter of the Memorandum dated 15 May 1998 of Executive Director Resurreccion Z. Borra, quoted to wit:chanrob1es virtual 1aw library ‘In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May 1998 in the manual counting of votes of Pata, Sulu, and in view of the arrival of the counting machines, ballot boxes, documents and other election paraphernalia for the whole province of Sulu now stored in PICC, as well as the arrival of the Municipal Board of Canvassers of said Municipality in Sulu, and after conference with some members of the Senior Staff and Technical Committee of this Commission, the following are hereby respectfully recommended:chanrob1es virtual 1aw library ‘1. Manual counting of the local ballots of the automated election system in Pata, Sulu; ‘2. Automated counting of the national ballots considering that there are no questions raised on the National Elective Officials as pre-printed in the mark-sensed ballots; ‘3. The creation of the following Special Boards of Inspectors under the supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:chanrob1es virtual 1aw library a) Atty. Mamasapunod M. Aguam Ms. Gloria Fernandez Ms. Esperanza Nicolas b) Director Ester L. Villaflor-Roxas Ms. Celia Romero Ms. Rebecca Macaraya c) Atty. Zenaida S. Soriano Ms. Jocelyn Guiang Ma. Jacelyn Tan d) Atty. Erlinda C. Echavia Ms. Theresa A. Torralba Ms. Ma. Carmen Llamas e) Director Estrella P. de Mesa

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Ms. Teresita Velasco Ms. Nelly Jaena ‘4. Additional Special Board of Inspectors may be created when necessary. ‘5. The Provincial Board of Canvassers which by standing Resolution is headed by the Task Force Sulu Head shall consolidate the manual and automated results as submitted by the Municipal Boards of Canvassers of the whole province with two members composed of Directors Estrella P. de Mesa and Ester L. Villaflor-Roxas; ‘6. The political parties and the candidates in Sulu as well as the Party-List Candidates are authorized to appoint their own watchers upon approval of the Commission’, ‘RESOLVED to approve the foregoing recommendations in the implementation of Min. Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual counting of votes in the municipality of Pata, Sulu. ‘RESOLVED, moreover, considering the recommendation of Comm. Manolo B. Gorospe, Commissioner-In-Charge, ARMM, to conduct a parallel manual counting on all 18 municipalities of Sulu as a final guidance of the reliability of the counting machine which will serve as basis for the proclamation of the winning candidates and for future reference on the use of the automated counting machine." ‘ On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz: 13 "1. The minute resolution under agenda No. 98-1796 violates the provisions of Republic Act No. 8436 providing for an automated counting of the ballots in the Autonomous Region in Muslim Mindanao. The automated counting is mandatory and could not be substituted by a manual counting. Where the machines are allegedly defective, the only remedy provided for by law is to replace the machine. Manual counting is prohibited by law; "2. There are strong indications that in the municipality of Pata the ballots of the said municipality were rejected by the counting machine because the ballots were tampered and/or the texture of the ballots fed to the counting machine are not the official ballots of the Comelec; "3. The automated counting machines of the Comelec have been designed in such a way that only genuine official ballots could be read and counted by the machine; "4. The counting machines in the other municipalities are in order. In fact, the automated counting has already started. The automated counting in the municipalities of Lugus and Panglima Tahil has been completed. There is no legal basis for the ‘parallel manual counting’ ordained in the disputed minute resolution."cralaw virtua1aw library Nonetheless, COMELEC started the manual count on the same date, May 18, 1998.chanroblesvirtuallawlibrary:red

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On May 25, 1998, petitioner filed with this Court a petition for certiorari and prohibition under Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior notice and hearing to him; (b) the order for manual counting violated R.A. No. 8436; (c) manual counting gave "opportunity to the following election cheating," namely. "(a) The counting by human hands of the tampered, fake and counterfeit ballots which the counting machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436). "(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than the head of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended to the COMELEC the anomalous manual counting, had approached the watchers of petitioners to allow the retrieval of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin," clearly indicating overtures of possible bribery of the watchers of petitioner (ANNEX E). "(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors to manually count the 1,194 precincts, the manipulators are given sufficient time to change and tamper the ballots to be manually counted. "(d) There is the opportunity of delaying the proclamation of the winning candidates through the usually dilatory moves in a pre-proclamation controversy because the returns and certificates of canvass are already human (sic) made. In the automated counting there is no room for any dilatory pre-proclamation controversy because the returns and the MBC and PBC certificates of canvass are machine made and immediate proclamation is ordained thereafter."cralaw virtua1aw library Petitioner then prayed:jgc:chanrobles.com.ph "WHEREFORE, it is most especially prayed of the Honorable Court that:jgc:chanrobles.com.ph "1. upon filing of this petition, a temporary restraining order be issued enjoining the COMELEC from conducting a manual counting of the ballots of the 1,194 precincts of the 18 municipalities of the Province of Sulu but instead proceed with the automated counting of the ballots, preparation of the election returns and MBC, PBC certificates of canvass and proclaim the winning candidates on the basis of the automated counting and consolidation of results; "2. this petition be given due course and the respondents be required to answer; "3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12, 13, 15, and 17, 1998 be all declared null and void ab initio for having been issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction and for being in violation of due process of law; "4. the winning candidates of the Province of Sulu be proclaimed on the basis of the results of the automated counting, automated election returns, automated MBC and PBC certificates of canvass; "x

x

x."cralaw virtua1aw library

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On June 8, 1998, private respondent Tan was proclaimed governor-elect of Sulu on the basis of the manual counting. 14 Private respondent garnered 43,573 votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes. On June 23, 1998, this Court required the respondents to file their Comment to the petition and directed the parties "to maintain the status quo prevailing at the time of the filing of the petition." 15 The vice-governor elect was allowed to temporarily discharge the powers and functions of governor. On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for governor filed a motion for intervention and a Memorandum in Intervention. 16 The result of the manual count showed he received 38,993 votes and placed second. Similarly, he alleged denial of due process, lack of factual basis of the COMELEC resolutions and illegality of manual count in light of R.A. No. 8436. The Court noted his intervention. 17 A similar petition for intervention filed by Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it was filed too late. In due time, the parties filed their respective Comments. On September 25, 1998, the Court heard the parties in oral argument 18 which was followed by the submission of their written memoranda.chanrobles virtual lawlibrary The issues for resolution are the following:chanrob1es virtual 1aw library 1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is the appropriate remedy to invalidate the disputed COMELEC resolutions. 2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in ordering a manual count. 2.a. Is there a legal basis for the manual count? 2.b. Are its factual bases reasonable? 2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it ordered a manual count? 3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is proper to call for a special election for the position of governor of Sulu. We shall resolve the issues in seriatim. First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article IX (A) of the 1987 Constitution states that "unless provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. 19 Contrariwise, administrative orders of the COMELEC are not, as a general rule, fit subjects of a petition for certiorari. The main issue in the case at bar is whether the COMELEC gravely abused its discretion when it ordered a

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manual count of the 1998 Sulu local elections. A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and administer all laws and regulations relative to the conduct of an election . . ." The issue is not only legal but one of first impression and undoubtedly suffused with significance to the entire nation. It is adjudicatory of the right of the petitioner, the private respondent and the intervenor to the position of governor of Sulu. These are enough considerations to call for an exercise of the certiorarijurisdiction of this Court. Second. The big issue, one of first impression, is whether the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in light of R.A. No. P8436. The post election realities on ground will show that the order for a manual count cannot be characterized as arbitrary, capricious or whimsical. a. It is well established that the automated machines failed to read correctly the ballots in the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained zero votes despite the representations of the Chairman of the Board of Election Inspectors and others that they voted for him. Another candidate garnered 100% of the votes. b. It is likewise conceded that the automated machines rejected and would not count the local ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo. c. These flaws in the automated counting of local ballots in the municipalities of Pata, Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the Technical experts of COMELEC and the supplier of the automated machines. All of them found nothing wrong with the automated machines. They traced the problem to the printing of local ballots by the National Printing Office. In the case of the municipality of Pata, it was discovered that the ovals of the local ballots were misaligned and could not be read correctly by the automated machines. In the case of the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it turned out that the local ballots contained the wrong sequence code. Each municipality was assigned a sequence code as a security measure. Ballots with the wrong sequence code were programmed to be rejected by the automated machines. It is plain that to continue with the automated count in these five (5) municipalities would result in a grossly erroneous count. It cannot also be gainsaid that the count in these five (5) municipalities will affect the local elections in Sulu. There was no need for more sampling of local ballots in these municipalities as they suffered from the same defects. All local ballots in Pata with misaligned ovals will be erroneously read by the automated machines. Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain to be rejected by the automated machines. There is no showing in the records that the local ballots in these five (5) municipalities are dissimilar which could justify the call for their greater sampling. Third. These failures of automated counting created post election tension in Sulu, a province with a history of violent elections. COMELEC had to act decisively in view of the fast deteriorating peace and order situation caused by the delay in the counting of votes. The evidence of this fragile peace and order cannot be downgraded. In his handwritten report to the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:jgc:chanrobles.com.ph

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"x

x

x

"Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended to tame a disorderly crowd inside and outside SSC, or a show of force. "It is submitted that since an error was discovered in a machine which is supposed to have an error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend to the other municipalities. Whether or not this is true, it would be more prudent to stay away from a lifeless thing that has sown tension and anxiety among and between the voters of Sulu."cralaw virtua1aw library Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13, 1998 Memorandum to the COMELEC likewise stated:chanrob1es virtual 1aw library x

x

x

"While the forces of AFP are ready to provide arm (sic) security to our COMELEC officials, BEI’s and other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per report received, the MNLF forces are readying their forces to surround the venue for automated counting and canvassing in Sulu in order that automation process will continue."cralaw virtua1aw library Last but not the least, the military and the police authorities unanimously recommended manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding General, Marine Forces Southern Philippines, Brig. Gen. Percival M. Subala, Commanding General, 3rd Marine Brigade, and Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu PNP Command explained that it." . . will not only serve the interest of majority of the political parties involved in the electoral process but also serve the interest of the military and police forces in maintaining peace and order throughout the province of Sulu."cralaw virtua1aw library An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of the sovereignty of the electorate. Its aftermath could have been a blood bath. COMELEC avoided this imminent probability by ordering a manual count of the votes. It would be the height of irony if the Court Condemns COMELEC for aborting violence in the Sulu elections. Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due process. The Tolentino memorandum clearly shows that they were given every opportunity to oppose the manual count of the local ballots in Sulu. They were orally heard. They later submitted written position papers. Their representatives escorted the transfer of the ballots and the automated machines from Sulu to Manila. Their watchers observed the manual count from beginning to end. We quote the Tolentino memorandum, viz:jgc:chanrobles.com.ph "x

x

x

"On or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the province of Sulu was being conducted at the counting center located at the Sulu State College,

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the COMELEC Sulu Task Force Head (TF Head) proceeded to the room where the counting machine assigned to the municipality of Pata was installed to verify the cause of the commotion therein. "During the interview conducted by the TF Head, the members of the Board of Election Inspectors (BEI) and watchers present in said room stated that the counting machine assigned to the municipality of Pata did not reflect the true results of the voting thereat. The members of the BEI complained that their votes were not reflected in the printout of the election returns since per election returns of their precincts, the candidate they voted for obtained "zero." After verifying the printout of some election returns as against the official ballots, the TF Head discovered that votes cast in every of a mayoralty candidate were credited in favor of his opponent. "In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for said municipality to enable COMELEC field technicians to determine the cause of the technical error, rectify the same, and thereafter proceed with automated counting. In the meantime, the counting of the ballots for the other municipalities proceeded under the automated system. "Technical experts of the supplier based in Manila were informed of the problem and after numerous consultations through long distance calls, the technical experts concluded that the cause of the error was in the manner the ballots for local positions were printed by the National Printing Office (NPO), namely, that the ovals opposite the names of the candidates were not properly aligned. As regards the ballots for national positions, no error was found. "Since the problem was not machine-related, it was obvious that the use of counting machines from other municipalities to count the ballots of the municipality of Pata would still result in the same erroneous count. Thus, it was found necessary to determine the extent of the error in the ballot printing process before proceeding with the automated counting. "To avoid a situation where proceeding with automation will result in an erroneous count, the TF Head, on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the province to enable him to call a meeting with the heads of the political parties which fielded candidates in the province, inform them of the technical error, and find solutions to the problem. On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista (3rd Marine Brigade) to discuss the process by which the will of the electorate could be determined. Present during the meeting were:chanrob1es virtual 1aw library 1. Brig. Gen. Edgardo Espinoza Marine Forces, Southern Philippines 2. Brig. Gen. Percival Subala 3rd Marine Brigade 3. Provincial Dir. Charlemagne Alejandrino

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Sulu PNP Command 4. Gubernatorial Candidate Tupay Loong LAKAS-NUCD Loong Wing 5. Gubernatorial Candidate Abdusakur Tan LAKAS-NUCD Tan Wing 6. Gubernatorial Candidate Yusop Jikiri LAKAS-NUCD-MNLF Wing 7. Gubernatorial Candidate Kimar Tulawie LAMMP 8. Congressional Candidate Bensaudi Tulawie LAMMP "During said meeting, all of the above parties verbally advanced their respective positions. Those in favor of a manual count were:chanrob1es virtual 1aw library 1. Brig. Gen. Edgardo Espinoza 2. Brig. Gen. Percival Subala 3. Provincial Dir. Charlemagne Alejandrino 4. Gubernatorial Candidate Abdusakur Tan 5. Gubernatorial Candidate Kimar Tulawie 6. Congressional Candidate Bensaudi Tulawie and those in favor of an automated count were:chanrob1es virtual 1aw library 1. Gubernatorial Candidate Tupay Loong 2. Gubernatorial Candidate Yusop Jikiri "Said parties were then requested by the TF Head to submit their respective position papers so that the same may be forwarded to the Commission en banc, together with the recommendations of the TF Head. "The TF Head returned to the counting center at the Sulu State College and called his technical

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staff to determine the extent of the technical error and to enable him to submit the appropriate recommendation to the Commission en banc. "Upon consultation with the technical staff, it was discovered that in the Municipality of Talipao, some of the local ballots were rejected by the machine. Verification showed that while the ballots were genuine, ballot paper bearing a wrong "sequence code" was used by the NPO during the printing process. Briefly, the following is the manner by which a "sequence code" determined genuineness of a ballot. A municipality is assigned a specific machine (except for Jolo, which was assigned two (2) machines, and sharing of one (1) machine by two (2) municipalities, namely, H.P. Tahil and Maimbung, Pandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A machine is then assigned a specific "sequence code" as one of the security features to detect whether the ballots passing through it are genuine. Since a counting machine is programmed to read the specific "sequence code" assigned to it, ballots which bear a "sequence code" assigned to another machine/municipality, even if said ballots were genuine, will be rejected by the machine. "Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of rejected ballots. However, since the machine operators were not aware that one of the reasons for rejection of ballots is the use of wrong "sequence code", they failed to determine whether the cause for rejection of ballots for said municipalities was the same as that for the municipality of Talipao. "In the case of ‘misaligned ovals’, the counting machine will not reject the ballot because all the security features, such as "sequence code", are present in the ballot, however, since the oval is misaligned or not placed in its proper position, the machine will credit the shaded oval for the position where the machine is programmed to "read" the oval. Thus, instead of rejecting the ballot, the machine will credit the votes of a candidate in favor of his opponent, or in the adjacent space where the oval should be properly placed. "It could not be determined if the other municipalities also had the same technical error in their official ballots since the "misaligned ovals" were discovered only after members of the Board of Election Inspectors of the Municipality of Pata complained that their votes were not reflected in the printout of the election returns. "As the extent or coverage of the technical errors could not be determined, the TF Head, upon consultation with his technical staff, was of the belief that it would be more prudent to count the ballots manually than to proceed with an automated system which will result in an erroneous count. "The TF Head thus ordered the indefinite suspension of counting of ballots until such time as the Commission shall have resolved the petition/position papers to be submitted by the parties. The TF Head and his staff returned to Camp General Bautista to await the submission of the position papers of the parties concerned.chanroblesvirtualawlibrary "Upon receipt of the position papers of the parties, the TF Head faxed the same in the evening of May 12, 1998, together with his handwritten recommendation to proceed with a manual count. Attached are copies of the recommendations of the TF Head (Annex "1"), and the

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position papers of the Philippine Marines and Philippine National Police (Annex "2"), LAKASNUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said recommendations and position papers were the bases for the promulgation of COMELEC Minute Resolution No. 98-1750 dated May 13, 1998 (Annex "7"), directing, among other things, that the ballots and counting machines be transported by C130 to Manila for both automated and manual operations. "Minute Resolution No. 98-1750 was received by the TF Head through fax on or about 5:30 in the evening of May 13, 1998. Copies were then served through personal delivery to the heads of the political parties, with notice to them that another conference will be conducted at the 3rd Marine Brigade on May 14, 1998 at 9:00 o’clock in the morning, this time, with Lt. General Joselin Nazareno, then AFP Commander, Southern Command. Attached is a copy of said notice (Annex "8") bearing the signatures of candidates Tan (Annex "8-A") and Loong (Annex "8-B"), and the representatives of candidates Tulawie (Annex "8-C") and Jikiri (Annex "8-D"). "On May 14, 1998, the TF Head presided over said conference in the presence of the heads of the political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of the NAMFREL, media and the public. "After hearing the sides of all parties concerned, including that of NAMFREL, the procedure by which the ballots and counting machines were to be transported to Manila was finalized, with each political party authorized to send at least one (1) escort/watcher for every municipality to accompany the ballot boxes and counting machines from the counting center at the Sulu State College to the Sulu Airport up to the PICC, where the COMELEC was then conducting its Senatorial Canvass. There being four parties, a total of seventy-two (72) escorts/watchers accompanied the ballots and counting machines. "Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting machines, accompanied by all the authorized escorts. Said ballots boxes reached the PICC on the same day, with all the escorts/watchers allowed to station themselves at the ballot box storage area. On May 17, 1998, another C130 left Sulu to ferry the members of the board of canvassers."cralaw virtua1aw library Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they were transferred from Sulu to Manila and when they were manually counted. As shown by the Tolentino memorandum, representatives of the political parties escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the names of his representatives who would accompany the ballot boxes and other election paraphernalia, viz: 20 "Dear Atty. Tolentino:jgc:chanrobles.com.ph "Submitted herewith are the names of escort(s) to accompany the ballot boxes and other election paraphernalia to be transported to COMELEC, Manila, to wit:chanrob1es virtual 1aw library 1 Jolo Joseph Lu

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2. Patikul Fathie B. Loong 3. Indanan Dixon Jadi 4. Siasi Jamal Ismael 5. K. Kaluang Enjimar Abam 6. Pata Marvin Hassan 7. Parang Siyang Loong 8. Pangutaran Hji. Nasser Loong 9. Marunggas Taib Mangkabong 10. Luuk Jun Arbison 11. Pandami Orkan Osman 12. Tongkil Usman Sahidulla 13. Tapul Alphawanis Tupay 14. Lugus Patta Alih 15. Maimbong Mike Bangahan 16. P. Estino Yasir Ibba 17. Panamao Hamba Loong 18. Talipao Ismael Sali "Hoping for your kind and (sic) consideration for approval on this matter. Thank you. Very truly yours, (Sgd.) Tupay T. Loong (Sgd.) Asani S. Tamang" The ballot boxes were consistently under the watchful eyes of the parties’ representatives. They were placed in an open space at the PICC. The watchers stationed themselves some five (5) meters away from the ballot boxes. They watched 24 hours a day and slept at the PICC. 21

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The parties’ watchers again accompanied the transfer of the ballot boxes from PICC to the public schools of Pasay City where the ballots were counted. After the counting, they once more escorted the return of the ballot boxes to PICC. 22 In fine, petitioner’s charge that the ballots could have been tampered with before the manual counting is totally unfounded. Sixth. The evidence also reveals that the result of the manual count is reliable. It bears stressing that the ballots used in the case at bar were specially made to suit an automated election. The ballots were uncomplicated. They had fairly large ovals opposite the names of candidates. A voter needed only to check the oval opposite the name of his candidate. When the COMELEC ordered a manual count of the votes, it issued special rules as the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus Election Code rules on appreciation of ballots cannot apply for they only apply to elections where the names of candidates are handwritten in the ballots. The rules were spelled out in Minute Resolution 98-1798, viz: 23 "In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z. Borra, re procedure of the counting of votes for Sulu for the convening of the Board of Election Inspectors, the Municipal Board of Canvassers and the Provincial Board of Canvassers on May, 18, 1998 at 9:00 a.m. at the Philippine International Convention Center (PICC), ‘RESOLVED to approve the following procedure for the counting of votes for Sulu at the PICC:chanrob1es virtual 1aw library ‘I. Common Provisions:chanrob1es virtual 1aw library ‘1. Open the ballot box, retrieve the Minutes of Voting and the uncounted ballots or the envelope containing the counted ballots as the case may be; ‘2. Segregate the national ballots from the local ballots; ‘3. Count the number of pieces of both the national and local ballots and compare the same with the number of votes who actually voted as stated in the Minutes of Voting:chanrob1es virtual 1aw library — If there is no Minutes of Voting, refer to the Voting Records at the back of the VRRs to determine the number of voters who actually voted. — If there are more ballots than the number of voters who actually voted, the poll clerk shall draw out as many local and national ballots as may be equal to the excess and place them in the envelope for excess ballots. ‘II. Counting of Votes ‘A. National Ballots:chanrob1es virtual 1aw library ‘1. If the national ballots have already been counted, return the same inside the envelope for

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counted ballots, reseal and place the envelope inside the ballot box; ‘2. If the national ballots have not yet been counted, place them inside an envelope and give the envelope through a liaison officer to the machine operator concerned for counting and printing of the election returns; ‘3. The machine operator shall affix his signature and thumbmark thereon, and return the same to the members of the BEI concerned for their signatures and thumbmarks; ‘4. The said returns shall then be placed in corresponding envelopes for distribution; ‘B. Local Ballots:chanrob1es virtual 1aw library ‘1. Group the local ballots in piles of fifty (50); ‘2. The Chairman shall read the votes while the poll clerk and the third member shall simultaneously accomplish the election returns and the tally board respectively. ‘If the voters shaded more ovals than the number of positions to be voted for, no vote shall be counted in favor of any candidate. ‘3. After all the local ballots shall have been manually counted, the same shall be given to the machine operator concerned for counting by the scanning machine. The machine operator shall then save the results in a diskette and print out the election returns for COMELEC reference. ‘4. The BEI shall accomplish the certification portion of the election returns and announce the results; ‘5. Place the election returns in their respective envelopes and distribute them accordingly; ‘6. Return all pertinent election documents and paraphernalia inside the ballot box. ‘III. Consolidation of Results ‘A. National Ballots ‘1. The results of the counting for the national ballots for each municipality shall be consolidated by using the ERs of the automated election system; ‘2. After the consolidation, the Machine Operator shall print the certificate of canvass by municipality and statement of votes by precinct. ‘3. To consolidate the provincial results, the MO shall load all the diskettes used in the scanner to the ERs; ‘4. The MO shall print the provincial certificate of canvass and the SOV by municipality; ‘5. In case there is system failure in the counting and/or consolidation of the results, the

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POBC/MOBC shall revert to manual consolidation. ‘B. Local Ballots ‘1. The consolidation of votes shall be done manually by the Provincial/Municipal Board of Canvassers; ‘2. The proclamation of winning candidates shall be based on the manual consolidation. ‘RESOLVED, moreover, that the pertinent provisions of COMELEC Resolution Nos. 2971 and 3030 shall apply. ‘Let the Executive Director implement this resolution." ‘ As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr. to undertake the manual counting, 24 viz:jgc:chanrobles.com.ph "a) Atty. Mamasapunod M. Aguam Ms. Gloria Fernandez Ms. Esperanza Nicolas b) Director Ester L. Villaflor-Roxas Ms. Celia Romero Ms. Rebecca Macaraya c) Atty. Zenaida S. Soriano Ms. Jocelyn Guiang Ma. Jocelyn Tan d) Atty. Erlinda C. Echavia Ms. Teresa A. Torralba Ms. Ma. Carmen Llamas e) Director Estrella P. de Mesa Ms. Teresita Velasco Ms. Nelly Jaena" Later, the COMELEC utilized the services of 600 public school teachers from Pasay City to do the manual counting. Five (5) elementary schools served as the venues of the counting,

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viz:25cralaw:red "1. Gotamco Elementary School, Gotamco Street, Pasay City — for the municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung; "2. Zamora Elementary School, Zamora Street, Pasay City — for the municipalities of Jolo, Talipao, Panglima Estino, and Tapul; "3. Epifanio Elementary School, Tramo Street, Pasay City — for the municipalities of Parang, Lugus, Panamao; "4. Burgos Elementary School, Burgos Street, Pasay City — for the municipalities of Luuk and Tongkil; "5. Palma Elementary School — for the municipalities of Siasi and Kalingalang Caluang."cralaw virtua1aw library From beginning to end, the manual counting was done with the watchers of the parties concerned in attendance. Thereafter, the certificates of canvass were prepared and signed by the City/Municipal Board of Canvassers composed of the Chairman, Vice-Chairman, and Secretary. They were also signed by the parties watchers. 26 The correctness of the manual count cannot therefore be doubted. There was no need for an expert to count the votes. The naked eye could see the check marks opposite the big ovals. Indeed, nobody complained that the votes could not be read and counted. The COMELEC representatives had no difficulty counting the votes. The 600 public school teachers of Pasay City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object to the rules on manual count on the ground that the ballots cannot be manually counted. Indeed, in his original Petition, petitioner did not complain that the local ballots could not be counted by a layman. Neither did the intervenor complain in his petition for intervention. The allegation that it will take a trained eye to read the ballots is more imagined than real. This is not all. As private respondent Tan alleged, the manual count could not have been manipulated in his favor because the results show that most of his political opponents won. Thus, "the official results show that the two congressional seats in Sulu were won by Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and Congressman Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In the provincial level, of the eight (8) seats for the Sangguniang Panlalawigan, two (2) were won by the camp of respondent Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF; and one (1) by LAMMP. In the mayoral race, seven (7) out of eighteen (18) victorious municipal mayors were identified with respondent Tan; four (4) with petitioner Loong; three (3) with the MNLF; two (2) with LAMMP and one (1) with REPORMA." 27 There is logic to private respondent Tan’s contention that if the manual count was tampered, his candidates would not have miserably lost. Seventh. We further hold that petitioner cannot insist on automated counting under R.A. No. 8436 after the machines misread or rejected the local ballots in five (5) municipalities in Sulu. Section 9 of R.A. No. 8436 provides:jgc:chanrobles.com.ph

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"SECTION 9. Systems Breakdown in the Counting Center. — In the event of a systems breakdown of all assigned machines in the counting center, the Commission shall use any available machine or any component thereof from another city/municipality upon approval of the Commission En Banc or any of its divisions.chanroblesvirtual|awlibrary The transfer of such machines or any component thereof shall be undertaken in the presence of representatives of political parties and citizens’ arm of the Commission who shall be notified by the election officer of such transfer. There is a systems breakdown in the counting center when the machine fails to read the ballots or fails to store/save results or fails to print the results after it has read the ballots; or when the computer fails to consolidate election results/reports or fails to print election resultsreports after consolidation."cralaw virtua1aw library As the facts show, it was inutile for the COMELEC to use other machines to count the local votes in Sulu. The errors in counting were due to the misprinting of ovals and the use of wrong sequence codes in the local ballots. The errors were not machine-related. Needless to state, to grant petitioner’s prayer to continue the machine count of the local ballots will certainly result in an erroneous count and subvert the will of the electorate. Eight. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error in counting is not machine-related for human foresight is not all-seeing. We hold, however, that the vacuum in the law cannot prevent the COMELEC from levitating above the problem. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. Congruent to this intent, this Court has not been niggardly in defining the parameters of powers of COMELEC in the conduct of our elections. Thus, we held in Sumulong v. COMELEC: 28 "Politics is a practical matter, and political questions must be dealt with realistically — not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions . . . There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election, . . . we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal mandates properly belongs to it."cralaw virtua1aw library In the case at bar, the COMELEC order for a manual count was not only reasonable. It was the only way to count the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is that by means of the manual count, the will of the voters of Sulu was honestly determined. We cannot kick away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine count does not work. Counting is part and parcel of the conduct of an election which is under the control and supervision of the COMELEC. It ought to be self-evident that the Constitution

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did not envision a COMELEC that cannot count the result of an election. Ninth. Our elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances. Even more, we cannot order a special election unless demanded by exceptional circumstances. Thus, the plea for this Court to call a special election for the governorship of Sulu is completely off-line. The plea can only be grounded on failure of election. Section 6 of the Omnibus Election Code tells us when there is a failure of election, viz:jgc:chanrobles.com.ph "SECTION 6. Failure of Election. — If, on account of force majeure, terrorism, fraud, or other analogous causes, the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election, not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect."cralaw virtua1aw library To begin with, the plea for a special election must be addressed to the COMELEC and not to this Court. Section 6 of the Omnibus Election Code should be read in relation to Section 4 of R.A. No. 7166 which provides:jgc:chanrobles.com.ph "SECTION 4. Postponement, Failure of Election and Special Elections. — The postponement, declaration of failure of elections and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after casting of votes or on the day of the election."cralaw virtua1aw library The grounds for failure of election — force majeure, terrorism, fraud or other analogous causes — clearly involve questions of fact. It is for this reason that they can only be determined by the COMELEC en banc after due notice and hearing to the parties. In the case at bar, petitioner never asked the COMELEC en banc to call for a special election in Sulu. Even in his original petition with this Court, petitioner did not pray for a special election. His plea for a special election is a mere afterthought. Too late in the day and too unprocedural. Worse, the grounds for failure of election are inexistent. The records show that the voters of Sulu were able to cast their votes freely and fairly. Their votes were counted correctly, albeit manually. The people have spoken. Their sovereign will has to be obeyed. There is another reason why a special election cannot be ordered by this Court. To hold a special election only for the position of Governor will be discriminatory and will violate the right of private respondent to equal protection of the law. The records show that all elected officials in Sulu have been proclaimed and are now discharging their powers and duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of the Sangguniang Panlalawigan

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and eighteen (18) mayors, numerous vice-mayors and municipal councilors are now servicing in their official capacities. These officials were proclaimed on the basis of the same manually counted votes of Sulu. If manual counting is illegal, their assumption of office cannot also be countenanced. Private respondent’s election cannot be singled out as invalid for alike cannot be treated unalike. A final word. Our decision merely reinforces our collective efforts to endow COMELEC with enough power to hold free, honest, orderly, and credible elections. A quick flashback of its history is necessary lest our efforts be lost in the labyrinth of time. The COMELEC was organized under Commonwealth Act No. 607 enacted on August 22, 1940. The power to enforce election laws was originally vested in the President and exercised through the Department of Interior. According to Dean Sinco, 29 the view ultimately emerged that an independent body could better protect the right of suffrage of our people. Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC. From a statutory creation, the COMELEC was transformed to a constitutional body by virtue of the 1940 amendments to the 1935 Constitution which took effect on December 2, 1940. COMELEC was generously granted the power to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections . . ." 30 Then came the 1973 Constitution. It further broadened the powers of COMELEC by making it the sole judge of all election contests relating to the election, returns and qualifications of members of the national legislature and elective provincial and city officials. 31 In fine, the COMELEC was given judicial power aside from its traditional administrative and executive functions. The 1987 Constitution quickened this trend of strengthening the COMELEC. Today, COMELEC enforces and administers all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction. All contests involving elective municipal and barangay officials are under its appellate jurisdiction. 32 Our decisions have been in cadence with the movement towards empowering the COMELEC in order that it can more effectively perform its duty of safeguarding the sanctity of our elections. In Cauton v. COMELEC, 33 we laid down this liberal approach, viz:jgc:chanrobles.com.ph "x

x

x

"The purpose of the Revised Election Code is to protect the integrity of elections and to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created — to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with."cralaw virtua1aw library

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In Pacis v. COMELEC, 34 we reiterated the guiding principle that "clean elections control the appropriateness of the remedy." The dissent, for all its depth, is out of step with this movement. It condemns the COMELEC for exercising its discretion to resort to manual count when this was its only viable alternative. It would set aside the results of the manual count even when the results are free from fraud and irregularity. Worse, it would set aside the judgment of the people electing the private respondent as Governor. Upholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said.chanrobles virtual lawlibrary IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there being no showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted. No costs. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Buena and Gonzaga-Reyes, JJ., concur. Pardo, J., took no part. Santiago, J., took no part; Did not participate in the deliberation. Separate Opinions PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly violated its express and specific statutory mandate to conduct automated elections in the Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec gravely abused its discretion in the following acts:chanrob1es virtual 1aw library 1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a mayoralty candidate in said municipality were not tallied by the counting machine assigned to said town 2. In changing the venue and the mode of counting from automated to manual, due to alleged imminent danger of violence 3. In violating its own Resolution ordering both an automated count and a parallel manual count, by actually holding only a manual count, without giving any reason for completely abandoning the automated system which was already 65 percent complete in the entire province 4. In counting and appreciating the automated ballots with the use of the rules peculiar to

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manual elections, not to the automated election system; that is, the Comelec manually tallied the ballots in a way different from how the automated machines would have counted them; hence, the results as manually appreciated substantially differed from the machine-generated ones 5. In issuing without due process of law, its assailed Minute Resolutions relating to the change in the manner and venue or counting Let me explain each of these grounds. 1. Stoppage of Automated Count Legally and Factually Flawed To begin with, there is absolutely no dispute that Congress required the Comelec to conduct automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM), including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436 explicitly mandates the Comelec to "use an automated election system . . . for the process of voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM. However, contrary to its above clear mandate, the Comelec abandoned the ongoing automated counting of votes in Sulu during the last elections and substituted it mid-stream with the manual system. This reversion to the manual election system is nowhere authorized in the same or any other law. Clearly, the poll body has no legislative power to modify, much less to contravene, the law. 2 Neither can it assume powers not granted to it either by the Constitution or by Congress.chanrobles virtual lawlibrary On the other hand, the majority justifies this reversion to the manual method as a valid exercise of the Comelec’s discretion to ensure a free, orderly, honest, and credible electoral exercise, stressing that this Court’s ruling is "in cadence with the movement towards empowering the Comelec in order that it can more effectively perform its duty of safeguarding the sanctity of our elections." I respectfully say, however, that such "movement" should be canalized by the proposition that the Comelec may exercise its discretion only in accordance with law and never in violation of it. In any event, let me delve deeper into the factual and legal antecedents which led to the stoppage of the automated count, if only to demonstrate the utter lack of prudence in the Comelec’s actions. Factual Antecedents of Stoppage of Count About 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting of the ballots was being conducted at the Sulu State College, some election inspectors as well as watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose Tolentino Jr., to allegedly patent discrepancies between the printed election returns and the actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty. Tolentino picked out three local ballots that had already been counted. He noticed that while they

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contained votes for a certain mayoralty candidate, such votes were not credited in the latter’s favor in the precinct election return, which showed zero (0) vote for that candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately order the suspension of the automated counting of the ballots from Pata. Tracing the error to misprinted ballots, he forthwith ordered a province-wide suspension of the automated count, on the suspension that the printing defect was prevalent province-wide. At that point, about 65 percent of the ballots cast in Sulu were already machine-counted. intervenor Jikiri alleged he was at the time leading the count. I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal authority to order even a temporary stoppage of the counting. During the Oral Argument on September 25, 1998, he candidly admitted that he had no statutory or even regulatory basis for his action. 3 Second, the verbal manifestation of a BEI member or a watcher that a vote for a certain candidate was not reflected in the election return conferred no legal authority upon the election official to examine the ballots personally. Third, granting that Atty. Tolentino had such authority, the factual basis of his exercise of discretion was sorely insufficient. He saw only three (3) ballots out of about 200 from a single precinct in Pata, which had 27 precincts; noted that the votes for a certain mayoralty candidate, which where indicated in the three ballots, were not reflected on the election return, which instead printed zero vote for such candidate; then, without much ado, ordered the stoppage of the counting of the rest of the ballots from Pata. At the time, only 13 ballot boxes had been, and 14 more remained to be, counted. Under RA 8436, it would have taken only one (1) minute for the counting machine to process 100 to 150 ballots. 4 Thus, it would not have taken very long to finish the count for the entire municipality. Atty. Tolentino did not even try to get the aggregate votes cast in the municipality for each mayoral candidate, in order to see if three or even 200 votes would spell a material difference in the result. Even under the manual election system, election cases are heard on the assumption that the protested ballots or returns would, if validated, change the election results. By analogy, the same logic should apply to automated elections. But Atty. Tolentino immediately assumed that the three ballots would be determinative of the election results in the municipality, where about 5,400 5 votes had been cast. Not even the manual election system allows a suspension of the entire counting process on the mere allegation that a few ballots or votes for one candidate in one precinct are questionable. Doctrinally, it would be imprudent, even dangerous, to discard the automated system cavalierly and thereafter resort to the manual count on the flimsy basis that a few ballots were allegedly miscounted. Such holding would give losing parties and candidates a convenient device to scuttle the automated system by the simple expedient of alleging that a few ballots were improperly counted by the machine. It would give them a convenient excuse to revive and use an antiquated and fraud-ridden electoral method and thus lead to a prolonged counting and canvassing, the very evil sought to be remedied by RA 8436. Remedy in Cases of False Returns and Questionable Ballots Moreover, since verbal complaints of incorrect tallying by the machine were not a valid reason to suspend the counting, the charges made by the candidates’ watchers should have prompted

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Atty. Tolentino to require the complaining parties to file their protests for proper action in accordance with law and the Comelec rules. During the canvassing (which, under the automated system, is also done separately from the counting), the adversely affected parties could have objected to the inclusion of the questioned election return and followed, by analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of the OEC, as amended by Section 20 of RA 7166. Had that recourse failed, the aggrieved candidate’s remedy was an election protest. Suspending and finally stopping the automated count were completely uncalled for. There simply was no basis for it. Making matters worse, Atty. Tolentino directed the suspension of the automated count in all the 18 municipalities of Sulu, even though the alleged errors were reportedly discovered in partial returns from only six (6) municipalities — Pata, Talipao, Siasi, Indanan, Tapul and Jolo. If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count must be set aside and declared null and void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. 6 But there are even more odious grounds, as I will now show. 2. No Imminent Danger of Violence The ponencia justifies the Comelec’s precipitate shift to manual counting "in view of the fast deteriorating peace and order situation caused by the delay in the counting of the votes." It pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP provincial director’s Comprehensive Report on the Sulu Election 7 dated May 18, 1998, which was submitted to this Court by Private Respondent Tan. Said Report makes no mention of or reference to any incident that would substantiate Tolentino’s statement. Rather, it bares the relative tranquillity of the recent electoral process in the province, viz.:jgc:chanrobles.com.ph "1. The conduct of election in the province of Sulu, by her own standard, was generally peaceful sans some isolated cases of mortar shelling and failure of voting in some barangays of Panamao, ballot boxes damaged resulting from pump boat capsizing in Tongkil and failure of conducting elections in two precincts is Siasi, all of Sulu. Automated counting of the ballots, however, was stopped the day after the election when inconsistency in the print out of results were discovered in the counting machine assigned to Pata municipality. This prompted the COMELEC to order the counting to be done in Manila. x

x

x

SIGNIFICANT INCIDENTS "Voting in the areas assigned to Sulu PPO was generally peaceful and orderly except for some minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat carrying them capsized. There was also allegation of ballot snatching threat and this matter is being investigated by this PPO. In Indanan, there was a minor misunderstanding between the Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo, particularly at the polling places at Hadji Butu School of Arts and Trade there was a short commotion among

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followers of candidates. "In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao. Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group reacted. x

x

x

3. ASSESSMENT "The conduct of election in Sulu was generally peaceful compared with the previous elections. Political rivalry was less intense; the extent of cheating was also less; and a good number of registered voters actually voted. This phenomenon may have been brought about by the fact that since there were four sets of candidates, the partisan armed groups were thinly distributed, meaning the more number of groupings, the lesser is the threat of violence."cralaw virtua1aw library Even assuming arguendo that imminent violence threatened the counting center, such situation would justify only the transfer of the counting venue. Even then, the concurrence of the majority of the watchers for such transfer is still required under the OEC. It does not appear on record that the consent of the watchers was ever sought, not to say given. On the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of venue for the counting, was issued ex parte by the Comelec en banc, without any petition, recommendation or proper investigation for said purpose. Such arbitrary and peremptory issuance, in violation of law, again amounted to an abusive exercise of discretion. But, even granting arguendo that the transfer of the counting venue was valid, the abandonment of the automated count was definitely not a necessary legal consequence thereof. In other words, only the venue could have been changed, but not the method of counting. If the Comelec had conducted an automated count in Manila, that may even be arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify the manualization of the counting process; if at all, it only authorized a change of venue of the automated count. 3. No Justification to Abandon Automated Count Please note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998, actually resolved "to conduct a parallel manual counting [i]n all 18 municipalities of Sulu . . ." 9 Originally, it would appear that the Commission intended to conduct in Manila an automated count first, and then a parallel manual count. Hence, it ordered the air-lifting to its head office of all the relevant election paraphernalia, including the automated machines. However, the Comelec did not obey its own Resolution. Worse, it did not explain why this vital provision requiring an automated count was not implemented, and why only a manual count was conducted. I could have conceded the propriety of a parallel manual count — which plainly means that both automated and manual counts were to be performed. Although not

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expressly sanctioned by law, such parallel manual count may arguably be regarded as falling within the residual regulatory authority of the Comelec. Unfortunately and inexplicably, however, only a manual count was done; the Resolution ordering an automated count was simply ignored without the Comelec giving any reason therefor. To repeat, there was no reason at all to completely abandon the automated count. The Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I submit, unexplainable reasons, it simply substituted the will of Congress with its own arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction. 4. Rules for Manual Elections Different from Those for the Automated System I would like to emphasize that the resort to a manual appreciation of the ballots is precluded by the basic features of the automated election system, 10 which requires minimum human intervention, the use of a special quality of ballot paper, the use of security codes, the mere shading of an oval corresponding to the name of the candidate voted for, and the mechanized discrimination of genuine from spurious ballots, as well as rejection of fake or counterfeit ones. The automated system takes away the discretion of the boards of election inspectors (BEI) in appreciating ballots. 11 A simple cursory reading of the rules 12 12a 12b laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election easily discloses that they are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system, wherein the names of the candidates are printed on the ballots beforehand and are not handwritten by the voters themselves, and wherein each name has a corresponding oval which must have its own exact location on the ballot, conforming to the design that has been programmed in the counting machine. In other words, the automated election system has peculiar features designed for electronic, not manual, verification.chanrobles.com : virtual law library Under the automated system, the machines are programmed to recognize or read only the presence of carbon in the ovals. To erase a vote, in fact, not advisable (the voter may, under Comelec rules, ask for a new ballot), because some carbon content may be left in the oval that would still be recognized and tallied by the machine. Human handling of the automated ballots will also make it all too easy to nullify the voter’s will. A blank ballot (in which the voter intentionally refrained from voting for any candidate) can be easily pencil-marked in favor of a certain candidate. Or a vote can be facilely nullified by simply marking the oval of another candidate for the same office. The point is: human handling of automated ballots is fraught with dangers to the integrity of the votes therein; it actually makes the political exercise more vulnerable to electoral fraud. To be more concrete and specific, during the physical examination of the ballots used in several precincts in Pata and Jolo, conducted pursuant to the Court’s Resolution dated February 9, 1999, as well as in the operation of the counting machines to which these ballots were fed, 13 there were significant discrepancies between the results of the manual count, as reflected in the official election returns, and those of the machine count. 14 Such were brought about by the following:chanrob1es virtual 1aw library

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1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the Comelec rules. 16 On the other hand, these were ignored by the machines, which could detect only ovals with sufficient carbon content. 2. Some ovals that were only partly shaded were not read by the machines, but were counted by the BEI, pursuant to said Comelec rules. 3. In some ballots, several ovals for candidates for one office were shaded but, except for one, also crossed out or marked with an "X." The counting machine invalidated these votes, because it could not recognize the difference between an "X" mark and any other mark on the oval. All it could "read" was the carbon content, and due to the presence of carbon on more than one oval for a single office, the machine concluded that there was an "over-vote." Under the automated program, an "over-vote" is considered "no-vote." However, the BEIs counted the remaining uncrossed vote, considering it the voter’s true and valid vote, pursuant to the OEC rules. 17 4. Ballots on which the voter manually wrote the candidates’ names were considered marked ballots by some BEIs, pursuant to the OEC. But the machines counted the votes therein and ignored such writings, as long as they were not found inside the ovals. I could cite several other examples of why the manual count was not reflective of the machine count. Inspite of the ponencia’s plain admission that the OEC Rules on the appreciation of ballots "only apply to elections where the names of candidates are handwritten in the ballots," the stark fact is that such Rules were actually (and erroneously) used here. Indeed, the use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the ballots. Such misappreciation, in turn, led to a substantial difference in the election results, as yielded by the manual and the automated counts. In sum, the manual count was not reflective of the automated count. This Court’s Ruling Sets Back Election Modernization It must be borne in mind that, verily, the consistency and the accuracy of the machine count were the underlying factors in adopting the automated system of election. Precisely, human error, inconsistency and fraud were intended to be eliminated in the automated system. In fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a manual count under the facts of this case was antithetical to the rationale and intent behind RA 8436. The very purpose of the law was defeated by the cumbersome, inaccurate and error-prone manual system of counting automated votes. Indeed, to uphold the results of the manual count would set a dangerous precedent. It would be tantamount to validating the arbitrary and illegal acts of the Comelec. It would provide the candidates a degenerated means to delay the proclamation of winners. It would effectively nullify the purpose of delivering speedy and accurate election results and thus defeat the election modernization ordained by Congress. Definitely, it would critically set back efforts at

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eliminating electoral fraud. To paraphrase then Vice President, now President, Joseph E. Estrada, the automated election system, which was prescribed as the "cure for electoral fraud," may, in the imprudent hands of an indiscreet poll body, be truly "worse than the disease."cralaw virtua1aw library 5. Lack of Due Process in Issuance of Assailed Comelec Resolutions The ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and Intervenor Jikiri "were given every opportunity to oppose the manual count of the local ballots in Sulu." Hence, contrary to their allegations, they were not denied due process. Again, I beg to disagree. Some factual antecedents have to be brought up to set the record straight. The meeting among the candidates and other parties concerned, which Atty. Tolentino convened in the early afternoon of May 12, 1998, was already post facto. The talking points in that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did not discuss the issue of whether to stop the tallying because much earlier in the morning of that same day, Atty. Tolentino had already suspended the counting in that municipality and, shortly thereafter, in the entire province. Furthermore, the group that convened did not yet take up the alleged rejection by the machines of ballots in other municipalities, since the reports thereon came only after the said meeting. And such stoppage, as I discussed earlier, was based merely on the verbal complaints of some watchers and members of the BEI and Atty. Tolentino’s personal, albeit unauthorized, examination of three ballots from one precinct, which showed that votes for a certain mayoralty candidate were not reflected in the election return. Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his petition 18 directly to the Comelec, requesting the immediate suspension of the automated count and the holding of a manual count in the entire Province of Sulu. In response, the Comelec en banc forthwith issued on the very same day — May 12, 1998 — assailed Minute Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata were concerned. The assailed Resolution was issued even before the report-recommendation of Atty. Tolentino was submitted to the Comelec en banc, close to midnight of that day. 20 While the effectivity of Minute Resolution 98-1747 was expressly "subject to notice to all parties concerned," its very issuance by the Comelec en banc was obviously (1) without notice to the other candidates, (2) without any hearing at all, and (3) without an independent investigation by the Comelec. It relied totally on the contents of the petition itself. Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were definitely not communicated to nor required by the Commission en banc prior to its issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the problems in the Municipality of Pata only, for the alleged problems in the five other municipalities of Sulu were discovered after that meeting was adjourned already. Such meeting, therefore, did not serve as a sufficient basis for the Comelec to abandon the automated count in the entire province; to

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transfer the counting venue from Sulu to Manila; and to totally shift to the manual count. In making these decisions and issuing the resolutions therefor, the Comelec clearly did not accord the parties due process. It did not give them any opportunity to be heard prior the promulgation of its rulings. The Comelec simply acted on its own. Epilogue Special Election as the Equitable Remedy The assailed Comelec Resolutions have heretofore been shown to be tainted with grave abuse of discretion; hence, the manual count has no legal leg to stand on. Consequently, its results cannot be upheld. That which proceeds from a void order is likewise void. The invalidity of the manual count resulted in no count at all. Equally important, the manual count was not reflective of the results of an automated count because the ballots were not appreciated in the manner the scanning machine would have counted them.chanrobles lawlibrary : rednad During the Oral Argument, the parties, as well as the solicitor general, agreed that an automated count was no longer possible because, after the ballots had been manually handled (and blemished or rumpled in the process), the scanning machines could not accurately read all of them anymore. 21 While the great majority of the ballots could still be counted by the machines, there were those that could no longer be electronically processed — ballots that were torn, dirty or sticky; and the damp ones that the machine found difficult to disengage. The ultimate effect of the invalidity of the manual count and the futility of an automated count at this time is the annulment or junking of the votes of the people of Sulu in the last elections. The will of the electorate, expressed through the ballots, has been frustrated or virtually canceled by the unauthorized acts of the Comelec. There is then no basis for the proclamation of Private Respondent Tan as the duly elected governor of Sulu. It must be pointed out, however, that the nullity of Tan’s proclamation is not equivalent to a judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing that the voting process itself was tainted with undue irregularity. It was the counting process, rather, that was shrouded with uncertainty. The manual count, I repeat, was not the prescribed or even the appropriate method of validating the ballots intended to be electronically verified. Time and again, the Court has held that the sovereign will must prevail over legal technicalities. 22 But when the popular will itself is placed in serious doubt due to the irregularity of the very method used in determining it, we must allow the people involved another chance to express their true choice. We simply cannot impose upon the people of Sulu one, who was not their clear choice, or whose election was, at the very least, placed in serious doubt by the spuriousness of the method used in counting the votes. The consequent loss of a legal and appropriate means to ascertain the genuine will of the voters during the last election in Sulu necessitates the holding of a special election. I believe that this is the only equitable remedy left under the circumstances, if we are to give true justice to the people of Sulu and let their sovereign will prevail. 23 Such special election will, however, concern only the position of governor of the Province of Sulu. Only this position was contested in the instant petition; only the candidates therefor have timely sought relief from

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this Court to assail the manual count and the subject Minute Resolutions of the Comelec. The same relief cannot be granted to the candidates for the other positions who, insofar as they are concerned, are deemed to have accepted the results of the manual count as truly reflective of the will of the people of Sulu. Their failure to object in due time to the process, as well as the results, manifests their conformity and acceptance. They are now estopped from questioning the validity of the assumption into office of the duly proclaimed winners of the other positions in the province, whose rights cannot be adversely affected in these proceedings without them being haled to and accorded their day in court. 24 Even this Court has admitted the wisdom of this caveat as it denied the late intervention of Vice Gubernatorial Candidate Abdulwahid Sahidulla. The Need for Legislative Action The foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated system that were unrelated to the counting machines or components thereof; thus, the lacuna of the proper recourse in such event. No remedies were expressly prescribed (1) for candidates who believe there was a wrong count or canvass by the machine, or more relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and if so, under what circumstances.25cralaw:red Well-settled is the rule, that courts have no jurisdiction to make legislative pronouncements. 26 They have no power to fill a vacuum in the law. Thus, the Court, I submit, should not give its imprimatur to the Comelec’s resort to the manual method of determining election results, where Congress has categorically prescribed the automated system. Only Congress, the legislative arm of the government, can prescribe a precise remedy that will address the flaws identified in this case. For the courts or the Comelec to do so (like a resort to manual count) would be tantamount to judicial or administrative legislation, a course diametrical to the constitutional principle of separation of powers.chanrobles virtuallawlibrary WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-1747, 98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually determined election results for the position of governor of Sulu and the proclamation of Respondent Abdusakur Tan as the elected governor of said province must thus be SET ASIDE and the Comelec ORDERED to call a special election for such position as soon as practicable. Endnotes:

1. See Report of Charlemagne Salamat Alejandrino, Police Superintendent, GSC, Provincial Director, pp. 1-2; Rollo, pp. 318-319. 2. See Memorandum of Atty. Tolentino, Jr. to Atty. Jose Balbuena, Director IV, Legal Department, COMELEC, pp. 1-2; Rollo, pp. 284-285. 3. Ibid., p. 3; Rollo, p. 286. 4. Ibid., p. 4; Rollo, p. 287.

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5. Ibid., p. 6; Rollo, p. 289. 6. Rollo, pp. 303-304. 7. Ibid., pp. 25-26. 8. Rollo, pp. 299-301. 9. Rollo, pp. 27-29. 10. Rollo, pp. 290-291. 11. Ibid. 12. Ibid., pp. 30-32. 13. Rollo, pp. 37-45. 14. Rollo, p. 54. 15. Ibid., p. 46 16. Ibid, pp. 157-184. 17. Ibid., p. 330. 18. Ibid., p. 392. 19. Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985) 20. Rollo, p. 314. 21. Supplemental Memorandum of the Solicitor General, pp. 11-12; Rollo, pp. 433-434. 22. Tolentino memorandum, op. cit., p. 14; Rollo, p. 297. 23. Rollo, pp. 34-35. 24. See Resolution No. 98-1796. 25. Rollo, p. 328. 26. Rollo, pp. 62-97. 27. Memorandum, p. 9; Rollo, p. 264. 28. 73 Phil. 288, 295-296 (1941). 29. Philippine Political Law, 1962 ed., pp. 383-386.

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30. Section 2, Art. X of the 1935 Constitution. 31. Section 2, Art. XII(C) of the 1973 Constitution. 32. Section 2, Art. IX(C) of the 1987 Constitution. 33. 19 SCRA 911, 921-922 (1967). 34. 25 SCRA 377, 388 (1968). PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library 1. § 6, RA 8436. 2. Cortez v. Comelec, 79 Phil 350 (1947); Lawsin v. Escalona, 11 SCRA 643 (1964). 3. I Transcript 49-50. 4. § 7, No. 7 5. According to Atty. Tolentino, there were about 200 ballots contained in a ballot box (II Transcript 46). The 27 ballot boxes for the 27 precincts of Pata, Sulu would thus yield about 5,400 ballots or votes. 6. Sanchez v. Comelec, 193 SCRA 320, January 24, 1991; Loong v. Comelec, 257 SCRA 1, May 16, 1996; Villanueva v. Court of Appeals, 259 SCRA 14, July 15, 1996; Garay v. Comelec, 261 SCRA 222, August 26, 1996; Jagunap v. Comelec, 104 Phil 204, April 24, 1981; Sarmiento v. Comelec, 212 SCRA 313, August 6, 1992; PNCC v. NLRC, 217 SCRA 455, January 22, 1993; Philippine Air Lines, Inc. v. NLRC, 225 SCRA 259, August 10, 1993; Philippine Air Lines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994; Allado v. Diokno, 232 SCRA 192, May 5, 1994; Labor v. NLRC, 248 SCRA 183, September 14, 1995; San Miguel Corp. v. NLRC, 209 SCRA 494, June 2, 1992. 7. Annex "3" to the Memorandum of Private Respondent Tan; rollo, pp. 256 et seq. 8. Rollo, pp. 30-32. 9. Emphasis supplied. 10. See Sec. 7, RA 8436. 11. Regalado E. Maambong, "New Technologies of Modernization in Electoral Administration: The Philippine Experience," Symposium on Asian Elections in the 21st Century: A Report, January 1997, p. 30. 12. "Sec. 211. Rules for the appreciation of ballots. — In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing

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in mind that the object of the election is to obtain the expression of the voters’ will:jgc:chanrobles.com.ph "1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office. "2. Where only the first name of a candidate is written on the ballot, which when read, has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. "3. In case the candidate is a woman who uses her maiden or married surname or both and there is another candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent. "4. When two or more words are written on the same line on the ballot, all of which are the surnames of two or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least one year in which case it shall be counted in favor of the latter. "When two or more words are written on different lines on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorize the election of more than one and there are the same number of such surnames written as there are candidates with that surnames, the vote shall be counted in favor of all the candidates bearing the surname. "5. When on the ballots is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter. "6. When two words are written on the ballot, one of which is the first name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either. "7. A name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor. "8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it is used as a means to identify the voter, in which case, the whole ballot shall be void. "If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency.

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"9. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter. "10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of the surname accompanying the correct first name of a candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter. "11. The fact that there exists another person who is not a candidate with the first name or surname of a candidate shall not prevent the adjudication of the vote of the latter. "12. Ballots which contain prefixes as ‘Sr.,’ ‘Mr.,’ ‘Datu,’ ‘Don,’ ‘Ginoo,’ ‘Hon.,’ ‘Gob.’ or suffixes like ‘Hijo,’ ‘Jr.,’ ‘Segundo’ are valid. "13. The use of the nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname. "14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot. "15. If on the ballot is correctly written the first name of a candidate but with a different surname, or the surname of the candidate is correctly written but with different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates. "16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid. "17. Where there are two or more candidates voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein. "18. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered. "19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. "20. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process are totally null and void.

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"21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot. "22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate, or in other parts of the ballot, traces of the letter ‘T,’ ‘J,’ and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot. "23. Any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is totally null and void. "24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but it shall not invalidate the ballot. "25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read them, the board of election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly. "26. The accidental tearing or perforation of a ballot does not annul it. "27. Failure to remove the detachable coupon from a ballot does not annul such ballot."cralaw virtua1aw library 13. With the help of Comelec personnel, the counting machines were used only for clean or smudge-free ballots, which were fed into the machines to assure the integrity of the machine count. 14. During this process, Comelec personnel led by Atty. Jose Tolentino Jr. actually ran the automated ballots through the scanning machines, thus showing a sampling comparison between the manual results and the machine-generated totals. 15. § 211, No. 16. 16. Part II, No. 8, of the Comelec Procedure for Manual Counting dated May 23, 1998. 17. See § 211, No. 9. 18. Annex "1" to Comment; rollo, pp. 121-123. 19. Rollo, pp. 25-26. 20. II Transcript 13-14. 21. The caveat must be stated here, however, that during the sampling demonstration made by Comelec, which showed discrepancies in the automated and manual counts, most of the ballots could still be read by the machines. Only one or two ballots per precinct were spoiled or blemished to the point of being non-readable by the machine.

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22. Frivaldo v. Comelec 257, SCRA 727, 771, June 238, 1996; Benito v. Comelec, 235 SCRA 436, 442, August 17, 1994, citing several cases. 23. The ponencia rules out this remedy, arguing that a special election was not prayed for by the parties and, at any rate, can be authorized only in accordance with Sections 4, 5, 6 and 7 of the OEC. I stress however that, under the circumstances, a special election is the EQUITABLE remedy because to uphold the manual count, as the majority did, merely gave imprimatur to arbitrary acts of the Comelec and validated the inaccurate and unauthorized manual count. 24. Tan v. Barrios, 190 SCRA 686, 689-699, October 18, 1990; citing Icasiano v. Tan, 94 Phil 860 (1949); Busacay v. Buenaventura, 93 Phil (1953). 25. Earlier, I opined that, by analogy, the parties could avail of pre-proclamation contests or election protests. However, such analogy cannot be extended to manual elections because no law provides for such remedy. 26. Santiago v. Guingona Jr., GR No. 134577, November 18, 1998; Javellana v. Executive Secretary, 50 SCRA 30, 84, March 31, 1973. EN BANC G. R. No. 160427 - September 15, 2004 POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG MASCARA, Petitioners, vs. COMMISSION ON ELECTIONS and EO ESMAEL MAULAY, Acting Election Officer, Tamparan, Lanao del Sur or whoever is acting on his behalf, Respondents. DECISION CARPIO, J.: The Case Challenged in this petition for certiorari1 with prayer for temporary restraining order and preliminary injunction is the Resolution of the Commission on Elections en banc ("COMELEC")2 dated 8 October 2003. The COMELEC declared a failure of election but refused to conduct another special election. The Facts In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections ("elections"), Polala Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar ("Abubacar"), Macabigung Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran for re-election aspunong barangay in their respective barangays, namely: Occidental Linuk,

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Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South ("five barangays"), all in Tamparan, Lanao del Sur. Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays in Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer Esmael Maulay ("EO Maulay") issued a certification that there were no special elections held on 13 August 2002. Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners") filed a Joint Petition seeking to declare a failure of elections in the five barangays and the holding of another special election. The Joint Petition attributed the failure of the special elections to EO Maulays non-compliance with COMELEC Commissioner Mehol K. Sadains ("Commissioner Sadain") directive. Commissioner Sadain had directed EO Maulay to use the Autonomous Region of Muslim Mindanao ("ARMM") 2001 computerized Voters List and the Voters Registration Records of the Provincial Election Officer during the December 2001 registration of new voters. The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel appeared. The COMELEC ordered the parties to submit their memoranda within 20 days. The COMELEC also directed EO Maulay to explain in writing why he should not be administratively charged for failing to comply with Commissioner Sadains directive. The joint-petitioners filed their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a written explanation as directed. The COMELEC considered the case submitted for resolution. On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows: ACCORDINGLY, the Department of Interior and Local Government is hereby DIRECTED to proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK Chairmen and SK Kagawads in Barangays Occidental Linuk,Pindolonan Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud, all of Tamparan, Lanao del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and other related laws on the matter. Let a copy of this Resolution be furnished to the Department of Interior and Local Government, the Municipality of Tamparan, Lanao [d]el Sur, and the respective Sangguniang Barangays of Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South and New Lumbacaingud, of Tamparan. Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s, and consequently, the filing of administrative charges against him if warranted. SO ORDERED.3 Sambarani, Miraato, Abubacar and Mascara ("petitioners") filed the instant petition.4

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The COMELECs Ruling The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the five barangays failed. The COMELEC, however, ruled that to hold another special election in these barangays as prayed for by petitioners is untenable. The COMELEC explained that it is no longer in a position to call for another special election since Section 6 of the Omnibus Election Code provides that "special elections shall be held on a date reasonably close to the date of the election not held, but not later than thirty days after cessation of the cause of such postponement." The COMELEC noted that more than thirty days had elapsed since the failed election. The COMELEC also pointed out that to hold another special election in these barangays will not only be tedious and cumbersome, but a waste of its precious resources. The COMELEC left to the Department of Interior and Local Government ("DILG") the process of appointing the Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan ("SK") Chairmen and SK Kagawads in these barangays "in accordance with the Local Government Code of 1991 and other related laws on the matter."5 The Issues Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in 1. Denying the prayer to call for another special election in barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays"); 2. Directing the DILG to proceed with the appointment of the barangay captains, barangay kagawads, SK chairmen and SK kagawads in the subject barangays; 3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office until their successors have been elected and qualified. The Courts Ruling The petition is meritorious. First Issue: Whether To Call Another Special Election Petitioners fault the COMELEC for not holding another special election after the failed 13 August 2002 special election. Petitioners insist that the special barangay and SK elections in the subject barangays failed because EO Maulay did not use the voters list used during the 2001 ARMM elections. Neither did Maulay segregate and exclude those voters whose Voters Registration Records ("VRRs") were not among those 500 VRRs bearing serial numbers 00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not delete from the certified list of candidates the name of disqualified candidate Candidato Manding.

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Petitioners contend that COMELECs refusal to call another special election conflicts with established jurisprudence, specifically the ruling in Basher v. Commission on Elections.6 The Solicitor General supports the COMELECs stance that a special election can be held only within thirty days after the cause of postponement or failure of election has ceased. The Solicitor General also maintains that the DILG has the power to appoint and fill vacancies in the concerned elective barangay and SK offices. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." Indisputably, the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve its primordial objective of holding free, orderly, honest, peaceful and credible elections.7 The functions of the COMELEC under the Constitution are essentially executive and administrative in nature. It is elementary in administrative law that "courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies."8 The authority given to COMELEC to declare a failure of elections and to call for special elections falls under its administrative function.9 The marked trend in our laws has been to grant the COMELEC ample latitude so it can more effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in this case, the COMELEC refuses to hold elections due to operational, logistical and financial problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second special Barangay and SK elections in the subject barangays? Neither the candidates nor the voters of the affected barangays caused the failure of the special elections. The COMELECs own acting election officer, EO Maulay, readily admitted that there were no special elections in these barangays. The COMELEC also found that the Provincial Election Supervisor of Lanao del Sur and the Regional Election Director of Region XII did not contest the fact that there were no special elections in these barangays. An election is the embodiment of the popular will, the expression of the sovereign power of the people.10 It involves the choice or selection of candidates to public office by popular vote.11 The right of suffrage is enshrined in the Constitution because through suffrage the people exercise their sovereign authority to choose their representatives in the governance of the State. The fact that the elections involved in this case pertain to the lowest level of our political organization is not a justification to disenfranchise voters. COMELEC anchored its refusal to call another special election on the last portion of Section 6 of the Omnibus Election Code ( "Section 6") which reads: SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous cases the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the

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custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. (Emphasis supplied) The Court construed Section 6 in Pangandaman v. COMELEC,12 as follows In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case. Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held." (Emphasis supplied) The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is absolute. The COMELEC has broad power or authority to fix other dates for special elections to enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot be reasonably held within the period prescribed by law. More in point is Section 45 of the Omnibus Election Code ("Section 45") which specifically deals with the election of barangay officials. Section 45 provides: SEC. 45. Postponement or failure of election. When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission, upon a verified petition of an interested party and after due notice and hearing at which the interested parties are given equal opportunity to be heard, shall postpone the election therein for such time as it may deem necessary. If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the election in any barangay has not been held on the date herein fixed or has been suspended before the hour fixed by law for the closing of the voting therein and such failure or suspension of election would affect the result of the election, the Commission, on the basis of a verified petition of an interested party, and after due notice and hearing, at which the interested parties are given equal opportunity to be heard shall call for the holding or continuation of the election within thirty days after it shall have verified and found that the cause or causes for which the election has been postponed or Page 451 of 492

suspended have ceased to exist or upon petition of at least thirty percent of the registered voters in the barangay concerned. When the conditions in these areas warrant, upon verification by the Commission, or upon petition of at least thirty percent of the registered voters in the barangay concerned, it shall order the holding of the barangay election which was postponed or suspended. (Emphasis supplied) Unlike Section 6, Section 45 does not state that special elections should be held on a date reasonably close to the date of the election not held. Instead, Section 45 states that special elections should be held within thirty days from the cessation of the causes for postponement. Logically, special elections could be held anytime, provided the date of the special elections is within thirty days from the time the cause of postponement has ceased. Thus, in Basher13 the COMELEC declared the 27 May 1997 barangay elections a failure and set special elections on 12 June 1997 which also failed. The COMELEC set another special election on 30 August 1997 which this Court declared irregular and void. On 12 April 2000, this Court ordered the COMELEC "to conduct a special election for punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible." This despite the provision in Section 214 of Republic Act No. 6679 ("RA 6679")15 stating that the special barangay election should be held "in all cases not later than ninety (90) days from the date of all the original election." Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it would not be as pressed for time as it is now. The operational, logistical and financial problems which COMELEC claims it will encounter with the holding of a second special election can be solved with proper planning, coordination and cooperation among its personnel and other deputized agencies of the government. A special election will require extraordinary efforts, but it is not impossible. In applying election laws, it would be better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.16 In any event, this Court had already held that special elections under Section 6 would entail minimal costs because it covers only the precincts in the affected barangays.17 In this case, the cause of postponement after the second failure of elections was COMELECs refusal to hold a special election because of (1) its erroneous interpretation of the law, and (2) its perceived logistical, operational and financial problems. We rule that COMELECs reasons for refusing to hold another special election are void. Second and Third Issues: Whether the DILG may Appoint the Barangay and SK Officials Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent elective punong barangays in the four barangays,18 they should remain in office in a holdover capacity until their successors have been elected and qualified. Section 5 of Republic Act No. 9164 ("RA 9164")19 provides:

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Sec. 5. Hold Over. All incumbent barangay officials and sangguniang kabataan officials shall remain in office unless sooner removed or suspended for cause until their successors shall have been elected and qualified. The provisions of the Omnibus Election Code relative to failure of elections and special elections are hereby reiterated in this Act. RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term of office of barangay and SK officials, and provides for the qualifications of candidates and voters for the SK elections. As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this Court to apply the plain meaning of the language of Section 5. Since there was a failure of elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections, petitioners can legally remain in office as barangay chairmen of their respective barangays in a hold-over capacity. They shall continue to discharge their powers and duties as punong barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local Government Code limits the term of elective barangay officials to three years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may continue in office in a hold over capacity until their successors are elected and qualified. Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent barangay officials xxx shall remain in office unless sooner removed or suspended for cause xxx until their successors shall have been elected and qualified." Section 8 of the same RA 6679 also states that incumbent elective barangay officials running for the same office "shall continue to hold office until their successors shall have been elected and qualified." The application of the hold-over principle preserves continuity in the transaction of official business and prevents a hiatus in government pending the assumption of a successor into office.20 As held in Topacio Nueno v. Angeles,21 cases of extreme necessity justify the application of the hold-over principle. WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections dated 8 October 2003 is declared VOID exceptinsofar as it directs its Law Department to conduct a preliminary investigation of Esmael Maulay for possible commission of election offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over capacity until their successors shall have been elected and qualified. The Commission on Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within thirty (30) days from finality of this decision. SO ORDERED. Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur. Endnotes: 1

Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.

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2

Composed of Benjamin S. Abalos, Sr. as Chairman, with Commissioners Luzviminda G. Tancangco, Rufino SB. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra and Florentino A. Tuason, Jr. 3

Rollo, p. 29.

4

Dayondong of Barangay Tatayawan South did not join the instant petition.

5

Rollo, p. 28.

6

386 Phil. 954 (2000).

7

Pangandaman v. COMELEC, 377 Phil. 297 (1999).

8

Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109583, 11 October 2000, 342 SCRA 549. 9

Ampatuan v. COMELEC, 426 Phil. 201 (2002).

10

Taule v. Santos, G.R. No. 90336, 12 August 1991, 200 SCRA 512.

11

Ibid.

12

Supra note 7.

13

Supra note 6.

14

Section 2 of RA 6679 provides:

SEC. 2. When for any serious cause such as rebellion, insurrection, violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the Commission on Elections motu proprio or upon sworn petition of ten (10) registered voters of a barangay, after summary proceedings of the existence of such grounds, shall suspend or postpone the election therein to a date reasonably close to the date of the election that is not held or is suspended or postponed, or which resulted in a failure to elect, but not later than thirty (30) days after the cessation of the cause for such suspension or postponement of the election or failure to elect, and in all cases not later than ninety (90) days from the date of all the original election. 15

AN ACT TO AMEND REPUBLIC ACT NO. 6653 TO POSTPONE THE BARANGAY ELECTIONS TO MARCH 28, 1989, PRESCRIBING ADDITIONAL RULES GOVERNING THE CONDUCT OF BARANGAY ELECTIONS AND FOR OTHER PURPOSES. 16

Malabaguio v. Commission on Elections, G.R. No. 142507, 1 December 2000, 346 SCRA 699; Maruhom v. Comelec, 387 Phil. 491 (2000).

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17

Lucero v. Commission on Elections, G.R. Nos. 113107 and 113509, 20 July 1994, 234 SCRA 280. 18

Now only four, since Dayondong of Tatayawan South no longer joined this petition.

19

AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT. NO. 7160, AS AMENDED, OTHERWISE KNOWN AS THE "LOCAL GOVERNMENT CODE OF 1991," AND FOR OTHER PURPOSES. 20

State ex rel. Coe v. Lee, 147 Fla 464; Burnett v. Brown, 194 Va. 103.

21

76 Phil. 12 (1946).

THIRD DIVISION [G.R. No. 75959. August 31, 1992.] VICTORIANO V. OROCIO, Petitioner, v. COMMISSION ON AUDIT, SOFRONIO B. URSAL, MARCOS S. SEGARRA, LEON J. PILAR, JR., and JOSE M. AGUSTIN, Respondents. Victoriano V. Orocio for and in his own behalf. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PARTY ADJUDGED LIABLE FOR DISALLOWED EXPENDITURE WITHOUT PRIOR NOTICE DENIED RIGHT TO DUE PROCESS; CASE AT BAR. — Respondent Agustin then cannot be faulted when in his Certificate of Settlement and Balances No. 01-04-83, he disallowed NPC’s questioned disbursement. However, in his notation as to the persons to be liable therefor, he mentions only Mr. M.V. Villafuerte (the Approving Authority) whose liabilities are primary; E. Gamama and P. Gajasan (Management’s Examiners) whose liabilities are secondary and joint" ; and H.L. Hermosura (Chief Accountant) whose liability is primary. Petitioner was not found to be liable. He was made jointly and

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severally liable with Villafuerte, Gajasan and Hermosura only in the Memorandum of respondent Agustin dated 30 June 1986. It may be noted that in his Memorandum he excluded Gamama. Considering that what was sustained up to the level of the General Counsel of the COA was the disallowance made in the aforementioned Certificate of Settlement and Balances and necessarily, his ruling thereon as to who are the parties liable therefor, Agustin acted arbitrarily and with grave abuse of discretion when, without prior notice to petitioner, he made the latter liable for the disallowance and worse, he directed, in the guise of a request, the Chief Accountant of the NPC, Metro Manila Regional Center, to book the disallowance in the name of petitioner. Petitioner was not made a party to the motion for reconsideration which the General Counsel of the COA acted upon. Respondent Agustin effectively denied petitioner of his right to due process. 2. ID.; COMMISSION ON AUDIT; POWERS UNDER THE 1973 CONSTITUTION; POWER UNDER THE 1987 CONSTITUTION; NATIONAL POWER CORPORATION SUBJECT TO COA’S AUDIT POWER. — The NPC, as a government-owned corporation, is under the COA’s audit power. Under the 1973 Constitution, which was the Constitution in force at the time the disallowance in question was made, the COA had the power to, inter alia, examine, audit, and settle, in accordance with law and regulations, all accounts pertaining to the revenues and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations; and promulgate accounting and auditing rules and regulations including those for the prevention of irregular, unnecessary, excessive, or extravagant expenditures or uses of funds or property. The 1987 Constitution preserves this power and function and grants the COA: ". . . exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." Both the 1973 and 1987 Constitutions conferred upon the COA a more active role and invested it with broader and more extensive powers. These were not meant to make it a toothless tiger, but a dynamic, effective, efficient and independent watchdog of the Government. 3. ID.; ID.; NOT BOUND BY OPINION OF LEGAL COUNSEL OF AGENCY UNDER AUDIT; REASON THEREFOR; CASE AT BAR. — In determining whether an expenditure of a Government agency or instrumentality such as the NPC is irregular, unnecessary, excessive, extravagant or unconscionable, the COA should not be bound by the opinion of the legal counsel of said agency or instrumentality which may have been the basis for the questioned disbursement; otherwise, it would indeed become a toothless tiger and its auditing function would be a meaningless and futile exercise. Its beacon lights then should be nothing more than the pertinent laws and its rules and regulations. In the instant case, on the basis of the pertinent documents attached to the pleadings, the COA auditor had every reason to believe that the disbursement of P53,802.26 by the NPC as a refund to the OPLGS for the hospitalization expenses of Abodizo, on the theory that the NPC was actually liable under the law on quasi-delict, as determined by the petitions, was irregular, if not illegal. Other than the report of Mapili and Barrera dated 27 May 1982, there is no competent evidence to show that either the NPC or any of its employees were responsible for the accident. . . . We find petitioner’s proposition to be a bit outlandish; he overrates the power of the General Counsel of the NPC and belittles the authority of the COA. While it may be true that Section 15-A of R.A. No. 6395 (charter of the NPC) provides that all legal matters shall be handled by the

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General Counsel of the Corporation, it by no means follows that all legal opinions of the General Counsel are ex-cathedra and binding upon all. In short, said provision does not confer upon him any degree of infallibility. It would have been dangerous if it were otherwise for not only would he be able to inextricably and unjustly bind the corporation or compel it to abide by his legal opinion even if it were wrong, he would also subordinate this Court to such opinion even if this Court is the final authority on how the law should be read. Petitioner’s theory destroys the very essence of the public trust character of a public office. He should be reminded — just as others in government service — of Section 1, Article XI of the 1987 Constitution which reads: "Section 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."cralaw virtua1aw library 4. ID.; ID.; PERIOD WITHIN WHICH DECISION HAS TO BE RENDERED; COA’S GENERAL COUNSEL WITHOUT AUTHORITY TO ACT FOR THE COMMISSION WHICH RESOLVES CASES AS A COLLEGIAL BODY; CASE AT BAR. — It must be recalled that in his Memorandum of 14 February 1985, General Counsel Ilao of the NPC asked for a reconsideration of the disallowance and requested that the same be forwarded to the Chairman of the COA pursuant to Item III-7 of COA Circular 81-156 dated 19 January 1981. Clearly, therefore, the motion for reconsideration became a matter for the COA to resolve or decide. Under the provisions of the Constitution then in force, the COA was bound to decide it within sixty (60) days from the date of its submission for resolution. Section 2 of Article XII-D thereof reads: "SEC. 2. The Commission on Audit shall have the following powers and functions: . . . (2) Decide any case brought before it within sixty days from the date of its submission for resolution. Unless otherwise provided by law, any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof." Section 7, Article IX-A of the present Constitution also provides: "SEC 7. Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." The COA, both under the 1973 and 1987 Constitutions, is a collegial body. It must resolve cases presented to it as such Its General Counsel cannot act for the Commission for he is not even a Commissioner thereof. He can only offer legal advice or render an opinion in order to aid the COA in the resolution of a case or a legal question. Thus, Nepomuceno’s 5th indorsement cannot, by any stretch of the imagination, be considered as a "decision" of the COA. If the same were to be so considered, it would be void ab initio for having been rendered by one who is not possessed with any power or authority. In Mison v. Commission on Audit, this Court held that a so-called decision, denominated as Decision No. 77-142 by the Manager of the Technical Service Office of the COA, "by authority of the acting chairman" is "substantively void ab initio," because it was rendered without jurisdiction. "It had an essential inherent defect that could not be cured or waived."cralaw virtua1aw library 5. ID.; ID.; GOVERNMENT AUDITING CODE (PRESIDENTIAL DECREE NO. 1445); OFFICIAL OR EMPLOYEE DIRECTLY RESPONSIBLE FOR IRREGULAR OR UNLAWFUL EXPENDITURE OR USE OF GOVERNMENT FUNDS OR PROPERTY PERSONALLY LIABLE THEREFOR; CASE AT BAR. —

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Even if We are to assume that the disallowance was proper, there would still be no basis for directly holding petitioner liable therefor together with those earlier found to be responsible by Agustin in his Certificate of Settlement and Balances, moreover, there would be no reason to debit immediately his account with the NPC. In the first place, as earlier stated, up to the level of the General Counsel of the COA who acted for the Commission, it was never claimed that petitioner was personally liable for the disallowed disbursement; only the approving authority, the management examiners and the Chief Accountant of the NPC were deemed liable therefor. This seemed to be proper in the light of Sections 103, 105(1) and 106 of P.D. No. 1445. Under said Section 103, expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found directly responsible therefor. In the instant case, while it may perhaps be true that the petitioner had rendered the opinion which was relied upon for the disbursement, it cannot be said that he was directly responsible therefor. His was only a legal opinion which the governing board of the NPC or any of its authorized officials could adopt or reject in the resolution of the request of OPLGS for reimbursement. As earlier indicated, there is no showing at all that such governing board or any authorized official formally approved the request and granted the authority to make the refund. Respondent then was originally correct in excluding petitioner from the Certificate of Settlement and Balances. 6. ADMINISTRATIVE LAW; ADMINISTRATIVE CODE OF 1987; PUBLIC OFFICERS; NOT PERSONALLY LIABLE FOR ACTS DONE IN THE PERFORMANCE OF OFFICIAL DUTIES UNATTENDED BY BAD FAITH, MALICE OR GROSS NEGLIGENCE; CASE AT BAR. — It does not necessarily follow, however, that in no case may the petitioner be liable for his legal opinion. As the then officer-in-charge of the Office of the General Counsel of NPC, he exercised quasijudicial functions. He was empowered with discretion and authority to render an opinion as to whether the claim for reimbursement by the OPLGS was proper and ultimately, to determine if the NPC or any of its employees was responsible for the accident and, therefore, liable for the injury suffered by Abodizo under the law on quasi-delict. If he rendered the opinion in the just performance of his official duties and within the scope of his assigned tasks, he would not be personally liable for any injury that may result therefrom. Otherwise stated, a public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. Paragraph (1), Section 38, Chapter 9, Book I, of the Administrative Code of 1987 expressly provides: "SEC. 38. Liability of superior officers. — (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence." DECISION DAVIDE, JR., J.: On 25 May 1982, an accident occurred at the Malaya Thermal Plant of the National Power Corporation (NPC). Based on the accident report of Robinson D. Mapili and Ildefonso I. Barrera dated 27 May 1982, 1 tube leaks on HPH 5B were confirmed at 2:30 o’clock in the morning of 25 May 1982. From the time of such confirmation until 8:00 o’clock that morning, the system was drained and prepared for repair by mechanical maintenance personnel. By 8:45 o’clock,

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the system was declared safe for repair. Work thus progressed that same morning until 11:10 o’clock, when the plug from the leaking tube gave way, thereby releasing steam and hot water which hit two (2) of the employees working on the tube leak.chanrobles law library : red Ernesto Pumaloy, an NPC employee, suffered 1st and 2nd degree burns on the lower part of his body while Domingo Abodizo, a casual employee of O.P. Landrito’s General Services (OPLGS), a janitorial contractor of the NPC, assigned to the Maintenance Section, suffered 1st and 2nd degree burns on nearly seventy percent (70%) of his body. The injured personnel were brought to the Tanay General Hospital for treatment and were later transferred to Meralco’s J.F. Cotton Hospital. Total hospitalization expenses for the treatment of Domingo Abodizo reached P53,802.26. The NPC initially advanced this amount by setting it up as an account receivable from OPLGS deducted on a staggered basis from the latter’s billings against NPC until the same was fully satisfied. Subsequently, OPLGS, through its manager Ofelia Landrito, in a letter to Mr. Larry S. Gaerlan, Vice-President, Human Resources & General Services (VP-HRGS) NPC, dated 30 August 1982, 2 requested for a refund of the total amount deducted from their billings representing payment of the advances made by the NPC. This request was reiterated in a follow-up letter dated 6 September 1982. 3 In his Memorandum to the VP-HRGS dated 14 September 1982, Atty. C.Q. Crucillo, Assistant Chief Legal Counsel of the NPC, recommended favorable action on the request of the contractor. 4 This was forwarded to the Acting Manager, Metro Manila Regional Center (MMRC) of the NPC. 5 In turn, this opinion was referred to the General Counsel of the NPC for comment. 6 At that time, Petitioner, then Legal Services Chief D of the NPC, was designated by the Manager of the Legal Counseling Division of the NPC, who was to attend and participate in a Management Convocation scheduled for 30 September to 2 October 1992, as officer-in-charge of the Office of the General Counsel for that period. 7 In a memorandum dated 1 October 1982, Petitioner, as officer-in-charge, recommended favorable action on OPLGS’ request, in support whereof he stated:chanrob1es virtual 1aw library x

x

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"In brief, it is posited in the Memorandum that under Article 2176 of the Civil Code of the Philippines and pursuant to the doctrine of ‘res ipsa loquitor’ (sic) (the thing speaks for itself) and citing the case of Bernabe Africa, Et. Al. v. Caltex, Et Al., L-12986, March 31, 1966, it may be reasonably inferred that the incident causing injuries to Mr. Abodizo happened for want of care on the part of the Metro Manila Regional Center (MMRC) crew, rendering NPC, as their employer and owner of the Malaya Thermal Plant liable for damages sustained by Mr. Abodizo. It is further contended that under Article 2179 of the New Civil Code, NPC may not be liable for such damages only if Mr. Abodizo’s own negligence was the immediate and proximate cause of his injury, which is certainly not so in the instant case. After a review of the findings stated in the said memorandum against the applicable laws and jurisprudence on the matter, we find the request of OPLGS legally in order and should, therefore, be given due course." 8 x

x

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Thereupon, the amount for the hospitalization expenses was refunded to the contractor OPLGS. In Certificate of Settlement and Balances (CSB) No. 01-04-83 prepared by respondent Jose M. Agustin, Unit Auditor of the Commission on Audit (COA) assigned to the NPC-MRRC, on 30 July 1989, 9 the refund of the hospitalization expenses for Domingo Abodizo was disallowed for" [u]nder the NPC-O.P. Landrito contract, there is no employer-employee relationship between the Corporation and the latter’s employees." Hence, the NPC is not answerable for such expenses. The following employees were made liable for the disallowances: Mr. M.V. Villafuerte (Approving Authority) — primarily liable; E. Camama and P. Gajasan (Management’s examiners) — secondarily and jointly liable; L. Hermosura (Chief Accountant) — primarily liable.chanroblesvirtualawlibrary General Counsel Marcelino C. Ilao of the NPC, in his Memorandum of 6 September 1984, asked for a reconsideration of the aforesaid disallowance, stressing that:chanrob1es virtual 1aw library x

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"A review of the legal opinion (Memorandum dated October 1, 1982 of the Officer-in-Charge of the Office of the General Counsel) for the Officer-in-Charge, MMRC, which was the basis for the payment of the amount being disallowed, admits the non-existence of employer-employee relationship between NPC and Mr. Abodizo, employee of O.P. Landrito. However, the legal opinion premises the legality of the request for payment on the basis of quasi-delict, more particularly, the negligence and/or want of care on the part of the MMRC crew which resulted to the injuries sustained by Mr. Abodizo. Obligation arise (sic) not only from contracts but also from quasi-delicts, . . ." 10 x

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In his memorandum dated 9 January 1985, 11 respondent Agustin informed General Counsel Ilao of the NPC that he is adopting his stand contained in his memorandum to the COA Regional Director dated 9 October 1984 as the answer to the request for reconsideration. In the latter memorandum, he maintains that:chanrob1es virtual 1aw library x

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". . . there being no pre-existing contractual relation between the Corporation and the subject employee, the former is not liable for the damages sustained by the latter. We maintain that while quasi-delicts could be a source of obligation, the fault or negligence of the party from whom damages is being recovered must first be proven. . . . The opinion rendered by the NPC Legal Office clearly concedes lack of proof of negligence on the part of the NPC personnel undertaking the repair work or on the part of the Corporation .. Moreover, the negligence of the crew does not make the Corporation automatically and/or equally negligent.

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We further contend that it is not for the NPC Legal Office to declare the Corporation negligent and admit liability. It could have been a better decision if the matter was left to a competent court to determine." 12 x

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The COA Regional Director, herein respondent Leon J. Pilar, Jr., in a Memorandum dated 3 December 1984, confirmed the disallowance and held that the persons determined to be liable should be directed to immediately refund the amount disallowed and/or the proper official be directed to retain any money due them in satisfaction thereof. 13 General Counsel Ilao submitted a second request for reconsideration on 14 February 1985. 14 This request justifies the legal opinion rendered based on Section 15-A of R.A. No. 6395 (the NPC charter), as amended, which provides that." . . all legal matters shall be handled by the General Counsel of the Corporation. . ."cralaw virtua1aw library In a first indorsement dated 22 March 1985, 15 respondent Agustin submitted the request to the Chairman of respondent COA with the claim that his findings on the said disallowance have already been confirmed by the Regional Director, NCR. In a second indorsement dated 2 April 1985, 16 respondent Sofronio B. Ursal, Manager of the Corporate Audit Office of respondent COA, referred for comment and/or recommendation to the Auditor, NPC, the request for reconsideration. In a third indorsement dated 24 April 1985, 17 respondent Marcos Segarra, Corporate Auditor of COA, returned the second indorsement to respondent Ursal informing the latter that he concurs with the comment/opinion of respondent Agustin contained in the 1st indorsement of 22 March 1985. In his 4th indorsement dated 30 May 1985, 18 respondent Ursal, expressing his concurrence with the disallowance, referred to the COA’s General Counsel for an opinion the request for reconsideration. In his 5th indorsement dated 21 May 1986, 19 Ricardo G. Nepomuceno, Jr., General Counsel of the COA, acting "FOR THE COMMISSION", made a return to the Unit Auditor, herein respondent Agustin; Nepomuceno expressed his concurrence with the views of said Unit Auditor contained in the latter’s 1st indorsement of 22 March 1985.chanrobles lawlibrary : rednad Thereupon, on 30 June 1986, respondent, now in his capacity as Regional Auditor, transmitted to the General Counsel of the NPC a copy of the aforesaid 5th indorsement of COA’s General Counsel, which the former considers as the Commission’s decision (hereinafter designated as "5th Indorsement"), together with the pertinent papers, on the appeal made relative to the disallowance; 20 on the same date, he also sent a memorandum to the VP-MMRC of the NPC wherein he ordered that the subject disallowance "be booked" in the petitioner’s name, "upon whose legal opinion the payment of the aforesaid refund was made possible, jointly and severally with Mr. M.V. Villafuerte (Approving official on the voucher), Ms. P. Gajasan (Examiner), and Ms. L.M. Hermosura (Chief Accountant)," thereby amending previous findings as to the persons liable. 21 On 22 July 1986, a Debit Memorandum 22 was issued in petitioner’s name debiting his account with the NPC for the amount of the hospitalization expenses. Petitioner, on 28 September 1986, filed the instant petition seeking to annul and set aside the above-mentioned:chanrob1es virtual 1aw library

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a) Memorandum of respondent Agustin dated 9 January 1985; b) Memorandum of respondent Pilar dated 3 December 1984; c) 1st indorsement of respondent Agustin, dated 22 March 1985, to the Chairman, COA; d) 3rd indorsement of respondent Segarra dated 24 April 1985; e) 4th indorsement of respondent Ursal, dated 30 May 1985, to the General Counsel of the COA, conforming to the position of Jose M. Agustin; and f) 5th indorsement of the COA General Counsel Nepomuceno, Jr. dated 21 May 1986. 23 and praying for a writ of preliminary injunction to enjoin respondents from enforcing the same.chanrobles.com:cralaw:red In support thereof, petitioner alleges that he prepared the questioned legal opinion in the performance of his official functions as mandated by law. At the time he rendered it, he was the officer-in-charge of the NPC’s Office of the General Counsel. Section 15-A of its charter 24 provides that all legal matters shall be handled by the General Counsel of the Corporation. As such, he provides legal advice and/or renders legal opinions on legal matters involving the NPC. Since this function is quasi-judicial in nature, the discretion exercised in the discharge thereof is not subject to re-examination or controversion by the respondents; when the latter did what was proscribed, they in effect usurped the statutory function of the General Counsel of the NPC. There is no law which expressly authorizes the respondents to re-examine or controvert the General Counsel’s opinion. Petitioner additionally stresses that he is not personally liable for the amount disallowed as he was merely performing his official functions. Besides, his questioned opinion is not alleged to have been rendered with malice and bad faith.25cralaw:red In the Resolution of 6 October 1986, this Court dismissed the petition "for having been filed out of time . . . and for late payment of the legal fees . . ." 26 Acting on petitioner’s motion for reconsideration, this Court, on 22 June 1987, granted the motion, reinstated the petition and required the respondents to comment on the same. 27 Respondents, through the Office of the Solicitor General, filed their Comment on 9 October 1987. 28 They maintain that the questioned disbursement on the basis of the legal opinion of the petitioner is within the scope of the auditing power of the COA. The Constitution grants the COA the power, authority and duty to examine, audit and settle all accounts pertaining to the expenditures or uses of funds and property pertaining to the Government or any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations. 29 The matter of allowing in audit a disbursement account is not a ministerial function, but one which necessitates the exercise of discretion. Besides, the OPLGS, Abodizo’s employer, admitted that the incident was purely accidental and that there is no showing whatsoever in the accident report of any negligence on the part of the NPC or its employees; this being the case, the liability of the NPC for quasi-delict under Article 2176 of the New Civil Code cannot be sustained. Finally, respondents assert that it was petitioner’s legal opinion

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which made possible the questioned disbursement; accordingly, the 30 June 1983 request of respondent Agustin to book the disallowance in the petitioner’s name, jointly and severally with the other officials found responsible therefor, is in order as it was made pursuant to Section 103 of the Government Auditing Code 30 which provides:jgc:chanrobles.com.ph "Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor."cralaw virtua1aw library On 18 April 1988, this Court resolved to give due course to the petition and require both parties to submit their simultaneous Memoranda, 31 which they subsequently complied with. The principal issues raised in this case are:chanrob1es virtual 1aw library (1) Does the legal opinion of petitioner, which was relied upon for the disbursement in question, preclude or bar the COA from disallowing in post-audit such disbursement? (2) Has the General Counsel of the COA the authority to decide a motion to reconsider the disallowance in question? (3) Is the petitioner personally liable for the disallowance on the theory that the disbursement was made on the basis thereof?chanrobles.com.ph : virtual law library 1. As to the first, We find petitioner’s proposition to be a bit outlandish; he overrates the power of the General Counsel of the NPC and belittles the authority of the COA. While it may be true that Section 15-A of R.A. No. 6395 (charter of the NPC) provides that all legal matters shall be handled by the General Counsel of the Corporation, it by no means follows that all legal opinions of the General Counsel are ex-cathedra and binding upon all. In short, said provision does not confer upon him any degree of infallibility. It would have been dangerous if it were otherwise for not only would he be able to inextricably and unjustly bind the corporation or compel it to abide by his legal opinion even if it were wrong, he would also subordinate this Court to such opinion even if this Court is the final authority on how the law should be read. Petitioner’s theory destroys the very essence of the public trust character of a public office. He should be reminded — just as others in government service — of Section 1, Article XI of the 1987 Constitution which reads:jgc:chanrobles.com.ph "Section 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."cralaw virtua1aw library The NPC, as a government-owned corporation, is under the COA’s audit power. Under the 1973 Constitution, which was the Constitution in force at the time the disallowance in question was made, the COA had the power to, inter alia, examine, audit, and settle, in accordance with law and regulations, all accounts pertaining to the revenues and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations; 32 and promulgate accounting and auditing rules and regulations including those for the prevention of irregular, unnecessary, excessive, or extravagant expenditures or uses of funds or property.

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The 1987 Constitution preserves this power and function and grants the COA:jgc:chanrobles.com.ph ". . . exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." 33 Both the 1973 and 1987 Constitutions conferred upon the COA a more active role and invested it with broader and more extensive powers. These were not meant to make it a toothless tiger, but a dynamic, effective, efficient and independent watchdog of the Government. 34 In determining whether an expenditure of a Government agency or instrumentality such as the NPC is irregular, unnecessary, excessive, extravagant or unconscionable, the COA should not be bound by the opinion of the legal counsel of said agency or instrumentality which may have been the basis for the questioned disbursement; otherwise, it would indeed become a toothless tiger and its auditing function would be a meaningless and futile exercise. Its beacon lights then should be nothing more than the pertinent laws and its rules and regulations. In the instant case, on the basis of the pertinent documents attached to the pleadings, the COA auditor had every reason to believe that the disbursement of P53,802.26 by the NPC as a refund to the OPLGS for the hospitalization expenses of Abodizo, on the theory that the NPC was actually liable under the law on quasi-delict, as determined by the petitions, was irregular, if not illegal. Other than the report of Mapili and Barrera dated 27 May 1982, 35 there is no competent evidence to show that either the NPC or any of its employees were responsible for the accident.chanrobles law library : red On the contrary, in its letter of 30 August 1982, 36 the OPLGS admitted that the "incident was purely accidental in nature," but that "considering that the accident took place within the premises of the National Power Corporation and the cause of which was the Tube leaks of HPH 5B, which was still undergoing repair, it is but proper that cost of hospital bills and other expenses incurred by MR. DOMINGO ABODIZO be shouldered by the National Power Corporation." It further admits that it will not "press our contention that the National Power Corporation should pay" the hospital expenses, but appeals and requests that in the light of the "relationship" between it and the NPC, and the services both render to each other, the NPC nonetheless pay for the hospitalization expenses. It is not disputed that petitioner conducted no further investigation into the causes of the accident to determine for himself if indeed the NPC’s or any of its employees’ negligence was the proximate cause of the accident. Neither is it disputed that petitioner was at that time merely an officer-in-charge of the Office of the General Counsel. He remained such only from 30 September to 2 October 1982. He rendered the questioned legal opinion on 1 October 1982, 37 on the second day of his short tenure and barely a day before it ended. There was hardly any time for him to inquire further into the facts surrounding the incident, although he had all the time to simply refer it to the regular General Counsel who was expected to report back on 3 October 1982.

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Finally, the OPLGS’ claim for reimbursement was not referred to the NPC’s governing board or authorized officer for approval in the light of the legal opinion. By itself, the latter did not vest him with authority to approve the claim. It was nothing but a recommendation in favor of the claim. Respondent Agustin then cannot be faulted when in his Certificate of Settlement and Balances No. 01-04-83, 38 he disallowed NPC’s questioned disbursement. However, in his notation as to the persons to be liable therefor, he mentions only Mr. M.V. Villafuerte (the Approving Authority) whose liabilities are primary; E. Gamama and P. Gajasan (Management’s Examiners) whose liabilities are secondary and joint" ; and H.L. Hermosura (Chief Accountant) whose liability is primary. Petitioner was not found to be liable. He was made jointly and severally liable with Villafuerte, Gajasan and Hermosura only in the Memorandum of respondent Agustin dated 30 June 1986. 39 It may be noted that in his Memorandum he excluded Gamama. Considering that what was sustained up to the level of the General Counsel of the COA was the disallowance made in the aforementioned Certificate of Settlement and Balances and necessarily, his ruling thereon as to who are the parties liable therefor, Agustin acted arbitrarily and with grave abuse of discretion when, without prior notice to petitioner, he made the latter liable for the disallowance and worse, he directed, in the guise of a request, the Chief Accountant of the NPC, Metro Manila Regional Center, to book the disallowance in the name of petitioner. Petitioner was not made a party to the motion for reconsideration which the General Counsel of the COA acted upon. Respondent Agustin effectively denied petitioner of his right to due process. 2. What is claimed in this case to be the decision of the COA is actually the 5th Indorsement of Ricardo G. Nepomuceno, Jr., General Counsel thereof, which reads:chanrob1es virtual 1aw library x

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"5th Indorsement May 21, 1986. Respectfully returned to the Auditor, National Power Corporation, Quezon City, concurring with the views of the Unit Auditor, as contained in the 1st Indorsement, dated March 22, 1985, on the refund of hospitalization expenses in favor of Domingo Abodizo.chanrobles lawlibrary : rednad FOR THE COMMISSION:chanrob1es virtual 1aw library (S/T) RICARDO G. NEPOMUCENO, JR. General Counsel" 40 It must be recalled that in his Memorandum of 14 February 1985, 41 General Counsel Ilao of the NPC asked for a reconsideration of the disallowance and requested that the same be forwarded to the Chairman of the COA pursuant to Item III-7 of COA Circular 81-156 dated 19 January 1981. Clearly, therefore, the motion for reconsideration became a matter for the COA

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to resolve or decide. Under the provisions of the Constitution then in force, the COA was bound to decide it within sixty (60) days from the date of its submission for resolution. Section 2 of Article XII-D thereof reads:jgc:chanrobles.com.ph "SEC. 2. The Commission on Audit shall have the following powers and functions:chanrob1es virtual 1aw library x

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(2) Decide any case brought before it within sixty days from the date of its submission for resolution. Unless otherwise provided by law, any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof."cralaw virtua1aw library Section 7, Article IX-A of the present Constitution also provides:jgc:chanrobles.com.ph "SEC 7. Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."cralaw virtua1aw library The COA, both under the 1973 and 1987 Constitutions, is a collegial body. It must resolve cases presented to it as such Its General Counsel cannot act for the Commission for he is not even a Commissioner thereof. He can only offer legal advice or render an opinion in order to aid the COA in the resolution of a case or a legal question. Thus, Nepomuceno’s 5th indorsement cannot, by any stretch of the imagination, be considered as a "decision" of the COA. If the same were to be so considered, it would be void ab initio for having been rendered by one who is not possessed with any power or authority. In Mison v. Commission on Audit, 42 this Court held that a so-called decision, denominated as Decision No. 77-142 by the Manager of the Technical Service Office of the COA, "by authority of the acting chairman" is "substantively void ab initio," because it was rendered without jurisdiction. "It had an essential inherent defect that could not be cured or waived." chanrobles virtual lawlibrary What Mr. Nepomuceno should have done was to render the opinion precisely sought for in the preceding 4th indorsement of respondent Ursal dated 30 May 1985, 43 and submit the same to the Commission for the latter’s guidance in resolving the motion for reconsideration. Respondent Agustin, therefore, acted prematurely and with undue haste in implementing the disallowance against the parties allegedly liable therefor on the basis of the favorable opinion of Mr. Nepomuceno who, incidentally, merely concurred with his (Agustin’s) 22 March 1985 indorsement. 3. Even if We are to assume that the disallowance was proper, there would still be no basis for

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directly holding petitioner liable therefor together with those earlier found to be responsible by Agustin in his Certificate of Settlement and Balances, moreover, there would be no reason to debit immediately his account with the NPC. In the first place, as earlier stated, up to the level of the General Counsel of the COA who acted for the Commission, it was never claimed that petitioner was personally liable for the disallowed disbursement; only the approving authority, the management examiners and the Chief Accountant of the NPC were deemed liable therefor. This seemed to be proper in the light of Sections 103, 105(1) and 106 of P.D. No. 1445. Under said Section 103, expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found directly responsible therefor. In the instant case, while it may perhaps be true that the petitioner had rendered the opinion which was relied upon for the disbursement, it cannot be said that he was directly responsible therefor. His was only a legal opinion which the governing board of the NPC or any of its authorized officials could adopt or reject in the resolution of the request of OPLGS for reimbursement. As earlier indicated, there is no showing at all that such governing board or any authorized official formally approved the request and granted the authority to make the refund. Respondent then was originally correct in excluding petitioner from the Certificate of Settlement and Balances. It does not necessarily follow, however, that in no case may the petitioner be liable for his legal opinion. As the then officer-in-charge of the Office of the General Counsel of NPC, he exercised quasi-judicial functions. He was empowered with discretion and authority to render an opinion as to whether the claim for reimbursement by the OPLGS was proper and ultimately, to determine if the NPC or any of its employees was responsible for the accident and, therefore, liable for the injury suffered by Abodizo under the law on quasi-delict. If he rendered the opinion in the just performance of his official duties and within the scope of his assigned tasks, he would not be personally liable for any injury that may result therefrom. 44 Otherwise stated, a public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. 45 Paragraph (1), Section 38, Chapter 9, Book I, of the Administrative Code of 1987 46 expressly provides:jgc:chanrobles.com.ph "SEC. 38. Liability of superior officers. — (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence."cralaw virtua1aw library x

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But whether petitioner acted with malice, bad faith or beyond the scope of his authority or jurisdiction is a matter respondent Agustin cannot dispose of unilaterally and summarily without infringing on the petitioner’s right to due process.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph WHEREFORE, the instant petition is GRANTED. The challenged 5th indorsement of the General Counsel of the respondent Commission on Audit, dated 21 May 1986, the Memorandum of respondent Agustin of 30 June 1986, insofar as it holds petitioner personally liable for the disallowed disbursement and the Debit Memo, dated 22 July 1986, of the Manager of the Accounting Department of the National Power Corporation, are hereby set aside for being null and void.

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SO ORDERED. Gutierrez, Jr., Bidin and Romero, JJ., concur. Feliciano, J., is on official leave. Endnotes:

1. Annex "I" ; Rollo, 29. 2. Annex "G" ; Rollo, 27. 3. Annex "F" ; Id., 20. 4. Annex "E" ; Id., 23-24. 5. Annex "D" ; Rollo, 22. 6. Annex "C" ; Id., 21. 7. Annex "A" ; Id., 19. 8. Annex "B" ; Id., 20. 9. Annex "K" ; Rollo, 33-34. 10. Annex "L" ; Id., 35. 11. Annex "M" ; Rollo, 36. 12. Annex "N" ; Id., 38. 13. Annex "O" ; Id., 39-40. 14. Annex "P" ; Rollo, 41. 15. Annex "Q" ; Id., 43. 16. Annex "R" ; Id., 45. 17. Annex "S" ; Id., 46. 18. Annex "T" ; Id., 47-48. 19. Annexes "U" and "V" ; Id., 49-50.

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20. Annex "W" ; Rollo, 51. 21. Annexes "X" and "Y" ; Id., 52-53. 22. Annex "Y" ; Id., 53. 23. Rollo, 8-9. 24. R.A. No. 6395. 25. Chartered Bank v. Government Auditing Office, 149 SCRA 58 [1987]. 26. Rollo, 54. 27. Id., 80. 28. Id., 95-102. 29. Section 2(1), Article XII-D, 1973 Constitution; Section 2(1), Article IX-D, 1987 Constitution. 30. P.D. No. 1445. 31. Rollo, 130. 32. Section 2(1), Article XII-D, 1973 Constitution. 33. Section 2(2), Id. 34. Caltex Philippines, Inc. v. Commission on Audit, G.R. No. 92585, 8 March 1992. 35. Rollo, 29. 36. Annex "G" ; Rollo, 27. 37. Annex "B" ; Id., 20. 38. Annex "K" ; Rollo, 33-34. 39. Annex "W" ; Id., 51. 40. Annex "U" ; Rollo, 49. 41. Annex "F" ; Id., 44. 42. 187 SCRA 445 [1990]. 43. Annex "T" ; Rollo, 47.

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44. Zulueta v. Nicolas, G.R. No. L-3251, 31 January 1959. 45. Chartered Bank v. National Government Auditing Office, 149 SCRA 58 [1987]; Dumlao v. Court of Appeals, 114 SCRA 247 [1982]; Mindanao Realty Corporation v. Kintanar, 6 SCRA 814 [1962]. 46. Executive Order No. 292.

EN BANC [G.R. No. L-20568. December 28, 1964.] RAMON A. GONZALES, Petitioner-Appellant, v. THE PROVINCIAL AUDITOR OF ILOILO,Respondent-Appellee. Ramon A. Gonzales for his own behalf as Petitioner-Appellant. Provincial Fiscal A. B. Baguio and Assistant Fiscal Provincial Fiscal S. A. Barranco forRespondent-Appellee. SYLLABUS 1. ADMINISTRATIVE LAW; JUDICIAL REVIEW OF RULINGS OF ADMINISTRATIVE TRIBUNALS; EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRED. — No recourse to courts can be had until all administrative remedies have been exhausted, and special civil actions against administrative officers should not be entertained if superior administrative officers can grant relief.

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2. ID.; ID.; DECISION OF AUDITOR GENERAL ON SALARY CLAIM BY GOVERNMENT OFFICER IS APPEALABLE TO THE PRESIDENT. — The decision of the Auditor General on a claim for salaries by a local government official is appealable to the President, and not to the Courts. DECISION ZALDIVAR, J.: This is an appeal from the decision of the Court of First Instance of Iloilo dismissing the petition for mandamus in the above-entitled case. The petitioner Ramon Gonzales was appointed Assistant on Complaints and Investigation, Office of the Governor, by Governor Jose C. Zulueta of Iloilo, effective July 1, 1961, with compensation at the rate of P250.00 a month. At the time of his appointment the petitioner was holding the Office of Municipal Councilor of Lambunao, Iloilo, and he had not resigned from said office to accept the appointment in the office of the Governor. On July 31, 1961, the petitioner presented a voucher covering his salary as Assistant on Complaints and Investigation for July 1961 in the amount of P250.00 to the respondent Provincial Auditor of Iloilo for audit, but said respondent refused to pass in audit the said voucher for the reason that the petitioner continued to hold office as Councilor of Lambunao and so he may not be legally appointed Assistant in the Office of the Governor with compensation payable from the provincial funds. The respondent Provincial Auditor reasoned out that said appointment was in violation of the provisions of Sec. 2175 of the Revised Administrative Code as construed by the Secretary of Justice in his Opinion No. 121, Series of 1951. On August 2, 1961 petitioner appealed to the Auditor General from the action of the respondent Provincial Auditor denying to pass in audit his salary voucher for the month of July 1961. On November 26, 1961, the Auditor General upheld the action of the respondent in denying to pass in audit the above-mentioned salary voucher of the petitioner. Meanwhile the petitioner, in spite of the stand taken by the respondent regarding the nonaudit of his salary voucher for July 1961 on the ground that his appointment to the office of Assistant on Complaints and Investigation was illegal, continued to serve as such Assistant until December 31, 1961, when he resigned. Upon his resignation, the petitioner prepared a salary voucher for P1,500.00 covering his salary for six months from July 1, 1961 to December 31, 1961 and presented to the respondent the said voucher but the respondent verbally informed the petitioner that he (respondent) would deny audit of the voucher for the same reason that he denied audit of the salary voucher for P250.00 covering the salary for July 1961. On August 11, 1961, while acting as such Assistant in the Office of the Governor, the petitioner obtained a cash advance of P200.00 from the office of the Provincial Treasurer for travelling expenses within the province in connection with his duties. When the petitioner sought the liquidation of the said cash advance by submitting a voucher for per diems the

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respondent Provincial Auditor, on June 5, 1962, again refused to pass said voucher in audit on the same ground that he refused to pass in audit the salary vouchers aforementioned. Because of the Refusal by the respondent Provincial Auditor to pass in audit the voucher covering the per diems and settlement of the cash advance, the Provincial Treasurer also refused to pay the claim of the petitioner for per diems. Instead of appealing to the office of the President of the Philippines from the decision of the Auditor General upholding the action of the respondent Provincial Auditor denying to pass in audit his salary voucher for July 1961, the petitioner filed a petition for mandamus in the Court of First Instance of Iloilo on August 31, 1962 against the respondent herein. In his petition the petitioner prayed that the respondent be ordered to pass in audit the vouchers of said petitioner covering his salary for P1,500.00 and per diems to liquidate the cash advance of P200.00. The petitioner alleged that the respondent Provincial Auditor in refusing to pass in audit the said vouchers for salaries and per diems, although those vouchers had been approved by the Provincial Governor under the available appropriations, was in reality unlawfully neglecting the performance of an act which the law specifically enjoins as a duty resulting from his office. Petitioner further alleged that he had no other speedy and adequate remedy in the ordinary course of law except the petition for mandamus which he had filed in the present case. The Provincial Fiscal of Iloilo, in representation of the respondent Provincial Auditor, filed an answer, and by way of affirmative and special defenses alleged, among others, that the petitioner had not exhausted all administrative remedies available under the law before filing his petition for mandamus, hence the petition was premature and could not legally be entertained by the court. The provincial Fiscal further alleged that petitioner being a duly elected municipal councilor of Lambunao, Iloilo, and, acting as such from July 1, 1961 to December 31, 1961, he could not at the same time legally assume the office of Assistant on Complaints and Investigation in the Office of the Provincial Governor of Iloilo without violating Section 2175 of the Revised Administrative Code, and consequently the petitioner was not entitled to collect his salary as such Assistant in the Office of the Governor. After the respondent Provincial Auditor had filed his answer the petitioner moved for judgment on the pleadings. Over the objection of counsel for the respondent, the lower court granted the petitioner’s motion for judgment on the pleadings. On October 25, 1962 the Court of First Instance of Iloilo, in a decision handed down by Judge Pantaleon A. Pelayo, denied the petition for mandamus. The pertinent portion of the decision reads as follows:jgc:chanrobles.com.ph "Section 653 of the Revised Administrative Code of the Philippines reads:chanrob1es virtual 1aw library ‘Any person aggrieved by the action or by any decision of a provincial or city auditor in the settlement of an account or claim may within one year appeal to the Auditor General and any person similarly aggrieved by the action or decision of the Auditor General may likewise within one year appeal to the President of the Philippines. ‘From a decision adversely affecting the interest of the Government the appeal may be taken by the proper Head of Department, or in case of provinces and municipalities, or other form of

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local government, by the head of the office or branch of the Government immediately concerned.’ "Said legal provisions was modified by Commonwealth Act No. 324, approved, June 18, 1938. According to section 2 thereof the party aggrieved by the final decision of the Auditor General in the settlement of any account or claim may, within thirty days from receipt of the decision, take an appeal in writing to the President of the Philippines or to the Supreme Court of the Philippines if the appellant is a private person or entity. According to Section 656 of the said Revised Administrative Code the action of the President shall be final. "In a recent case decided by the Supreme Court, tribunal said:chanrob1es virtual 1aw library ‘Appellant by his petition for mandamus, is, in effect, appealing from the decision of the Auditor General denying his claim for gratuity. Such appeal should have been made to this Court within 30 days from the notice of the decision. As the law now stands, the decision of the Auditor General in cases affecting an executive department, bureau, or office of the Government may be appealed directly to the President whose action shall be final; while those where the aggrieved party is a private person or entity are appealable to the Supreme Court.’(Com. Act No. 327; Rule 45, Rules of Court; Radiowealth v. Agregado 86 Phil., 429, 47 Off. Gaz., Supp. December, 1951; Stiver v. Dizon, 76 Phil, 725; Abad Santos v. Auditor General, 79 Phil. 176; Rosario v. Auditor General G. R. No. L-11817, April 30, 1958.)’ (See Gaudencio Lacson v. Auditor General, Et Al., April 29, 1960, Off. Gaz. Vol. 58, No. 14, pp. 2916-2917). "It is evident that the action is unwarranted. It does not come within the purview or operation of the law. In other words, the facts described in the petition do not constitute a cause of action. The Court is not authorized to grant the relief therein sought for. Petitioner has knocked at the wrong door. What he is in search of cannot be found here, but elsewhere. So, the action is dismissed with the costs against him."cralaw virtua1aw library From the decision of the Court of First Instance of Iloilo the petitioner brought the present appeal to this Court. In his appeal, the petitioner makes the following assignment of errors:chanrob1es virtual 1aw library 1. That the lower court erred in holding that the petitioner has no cause of action for failure to appeal to the Supreme Court. 2. That the lower court erred in not declaring that the respondent Provincial Auditor has no authority to declare petitioner’s appointment as Governor’s assistant as illegal and void; 3. That assuming that said respondent has such authority the lower court erred in not declaring that petitioner’s appointment as Governor’s assistant is valid and legal; 4. That assuming that said appointment is invalid, the lower court erred in not declaring that petitioner is a de facto officer under a defective appointment, hence entitled to compensation. The matter to be resolved in this appeal is whether or not the lower court had correctly

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dismissed the petition for mandamus. Regarding the first assignment of error, the decision of the lower court does not suggest at all that the petition was dismissed because the petitioner had not appealed to the Supreme Court from the decision of the Auditor General. The lower court simply cited the law and a decision which have bearing on the rule regarding the exhaustion of other remedies before a resort to a court action such as the one taken by the petitioner. What the decision pointed out was that the petitioner should not have gone to court on a petition for mandamus because he had other recourse and adequate remedy under the law. Sections 2 and 3 of Article XI of the Constitution provide:jgc:chanrobles.com.ph "Sec. 2. The Auditor General shall examine . . .; and audit, in accordance with law and administrative regulations all expenditures of fund or property pertaining to or held in trust by the Government or the provinces and municipalities thereof . . ."cralaw virtua1aw library "Sec. 3. The decisions of the Auditor General shall be rendered within the time fixed by law, and the same may be appealed to the President whose action shall be final. When the aggrieved party is a private person or entity, an appeal from the decision of the Auditor General may be taken directly to a court of record in the manner provided by law."cralaw virtua1aw library Section 2 of Commonwealth Act No. 327 provides:jgc:chanrobles.com.ph "Sec. 2. The party aggrieved by the final decision of the Auditor General in the settlement of an account or claim may, within thirty days from the receipt of the decision, take appeal in writing:jgc:chanrobles.com.ph "(a) . . . (b) To the President of the Philippines; (c) To the Supreme Court of the Philippines if the appellant is a private person or entity."cralaw virtua1aw library x

x

x

The petitioner was a person in the government service when he claimed for payment of his salary. When the respondent Provincial Auditor refused to pass in audit his salary voucher, the petitioner appealed to the Auditor General. The matter of passing in audit a salary voucher is not a ministerial function. The Auditor General exercises a discretion or a quasi-judicial power when he acts on whether to pass a salary voucher in audit or not. Certainly the Auditor General has the power to look into the question of whether the person claiming salary payment is entitled to the salary or not. The Auditor General may err. The decision of the Auditor General is appealable to the President of the Philippines. When the Auditor General sustained the action of the respondent Provincial Auditor of Iloilo in refusing to pass in audit the salary voucher of the petitioner, what he should have done, being then a government employee, was to appeal to the President from the decision of the Auditor General. This the

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petitioner did not do. Instead he filed the present action for mandamus in the Court of First Instance of Iloilo. The step taken by the petitioner was not in accordance with the procedure provided by law. The petitioner had still a recourse open to him, and that was to appeal to the President of the Philippines. And the Constitution and the law empower the President to grant relief to him. The rule, that no recourse to court can be had until all administrative remedies had been exhausted and that special civil actions against administrative officers should not be entertained if superior administrative officers could grant relief, is squarely applicable to the present case (Bartolome v. Auditor General, 94 Phil. 718; Primo Panti v. Provincial Board etc. G.R. No. L-14047, Jan. 30, 1960; and Lazaro Booc v. Sergio Osmeña, Jr. etc., G.R. No. L14810, May 31, 1961.) In the case of Perfecta dela Cruz, v. Josefa de la Paz, G.R. No. L-17440, December 26, 1963, We held:jgc:chanrobles.com.ph "When an adequate remedy may be had within the Executive Department of the Government, but nevertheless, a litigant fails or refuses to avail himself of the same, the judiciary shall decline to interfere. This traditional attitude of the courts is based not only on convenience but likewise on respect: convenience of the party litigants and respect for a co-equal office in the government. If a remedy is available within the administrative machinery, this should be resorted to before resort can be made to the courts, not only to give the administrative agency opportunity to decide the matter by itself correctly, but also to prevent unnecessary and premature resort to courts. This has been a consistent ruling in a chain of cases decided by us. (See Jao Igco v. Shuster, 10 Phil. 448; Lamb v. Phipps, 22 Phil., 456; Miguel v. Reyes, G.R. No. L-4851, July 31, 1963; Arnedo v. Aldanese, 63 Phil., 768; Tuan Kay v. Import Control Commission, G.R. No. L-4427, April 31, 1952; Veloso v. Board of Accountancy, G.R. No. L-5760, April 20, 1953; Lubugan, Et. Al. v. Castrillo and Malinay, G.R. No. L-10521, May 29,1957.)" The decision of the lower court dismissing the petition for mandamus is in accordance with the law and the applicable decisions of this Court. After declaring that the decision of the lower court is correct, and We have thereby disposed of the first assignment of error, We do not consider it necessary to pass upon the other questions raised by the petitioner in the other errors that he had assigned in this appeal. WHEREFORE, the decision appealed from is affirmed, with costs against the PetitionerAppellant. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal and Bengzon, J.P., JJ., concur.

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EN BANC [G.R. No. L-17171. January 30, 1965.] FERNANDO D. GUEVARA, Petitioner, v. HON. PEDRO M. GIMENEZ, as Auditor General,Respondent. Ramon C. Fernandez for Petitioner. Solicitor General for Respondent. SYLLABUS 1. EVIDENCE; AFFIDAVITS HAVE LITTLE PROBATIVE VALUE IN A CIVIL CASE FOR RECOVERY OF UNPAID BALANCE OF A CONTRACT. — In a civil case for recovery of the unpaid balance of a public works contract, affidavits have little probative value, especially where the affiants, being contractors themselves, may be inclined to favor the plaintiff in his claim against the government. 2. GOVERNMENT CONTRACTS; DISTRIBUTION OF COMPLETE COPIES OF SPECIFICATIONS TO

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BIDDERS; PRESUMPTION OF PERFORMANCE OF OFFICIAL DUTY. — Where it was the duty of government employees to distribute the complete specifications of government contracts to prospective bidders, the claim of a winning bidder that the copy issued to him did not contain the specifications as to painting cannot be entertained because the presumption is that official duty has been duly performed. 3. ID.; PRACTICE OF CONTRACTORS TO VERIFY SPECIFICATIONS BEFORE SUBMITTING BID; FAILURE TO VERIFY IS CONTRACTOR’S NEGLIGENCE. — The practice of contractors, before submitting any bid or proposal, is to verify with the office of the District Engineer the fund available for a project, approval of plans, specifications and program of work and other relevant and necessary matters in prosecuting a government contract. In the event that a contractor dispensed with verification, he alone should bear the consequences of his negligence. DECISION BENGZON, J.: Sometime in 1954 the District Engineer of Sorsogon prepared a program of work and detailed estimate for the reconstruction of the Sorsogon Central School building at Burabod, Sorsogon. Specifications consisting of five pages were likewise prepared. The cost of painting was left out in the detailed estimate and specifications. The papers were submitted to the Division Engineer in Lucena, Quezon, who returned them duly approved with an authorized appropriation of P40,000.00 "provided that painting shall be included." Whereupon, the specification for painting was accordingly made and appended to the specifications as page six. In August 1954 the District Engineer advertised an invitation to bid for "furnishing of all materials, labor and plant, for the reconstruction" project. Prospective bidders were required to apply for issuance of plans, specifications and/or proposal book on which they could base their price proposals. Among those who applied and were issued the plans and specifications for the project was Fernando Guevara. Sealed bids were subsequently opened on September 25, 1954. Fernando Guevara’s bid of P37,500.00 was declared lowest and the contract was awarded to him. On December 17, 1954 Guevara and Casiano T. Ubalde, the latter acting for the Director of Public Works, signed the contract. In its Article I, the complete plans and specifications were expressly made a part of the contract. On January 31, 1955 Guevara was furnished by mail a copy of the contract with all its appendices. Petitioner does not deny that his copy of the contract as well as the file copy of the District Engineer contain the specifications which include painting. Eighty-five days after the contract was signed the construction was completed. The contract price was paid in eight monthly amortizations during the period of construction, based upon work satisfactorily completed during the preceding month. Guevara collected the final payment thereon. On May 24, 1955, or eight days after the completion of the project, Guevara filed with the

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Director of Public Works a written claim for the payment of P4,620.00 representing cost of painting, alleging that it was not covered by the contract. After hearing, the Secretary of Public Works and Communications denied the claim. Two petitions for reconsideration were denied. On appeal, the Auditor General also denied the claim. Guevara has appealed to this Court pursuant to Commonwealth Act 327. The issue is whether or not the contract for the reconstruction of the school building included painting. Guevara contends that the bidders were not aware of the inclusion of painting because the District Engineer did not add painting to the plans and specifications furnished them prior to the bidding. In support of his allegation Guevara presented the affidavits of two other bidders, namely, Francisco V. Nicolas and Amado Briones. Affiants stated therein that the bids they submitted did not include painting because the specifications given them had no such provision. At the time of the hearing Amado Briones was already dead. The other affiant was not presented. Under the circumstances, We entertain doubt as to the probative value of the affidavits 1 especially because affiants, being contractors themselves, may be inclined to favor petitioner in his claim as against the government. Affidavits are easily concocted to suit desired ends. We find more convincing the testimonies of Santiago P. Ojeda, Juan S. Lopez and Cesar Gacias, senior carpenter, general foreman and clerk, respectively, in the District Engineer’s office. Santiago P. Ojeda testified that when he prepared the original specifications he did not include painting. Juan S. Lopez however, declared that when the detailed estimate and specifications were approved by the Division Engineer, he prepared the specification for painting. Cesar Gacias testified that his duty was to distribute the specifications to prospective bidders; that upon receiving from Juan S. Lopez the specifications in question he sorted and checked them; that said specifications contained six pages, with the specification for painting appearing on the sixth page; and that copies of the complete specifications were distributed to prospective bidders Guevara, Nicolas, Jabson and Briones. These government employees testified as to what transpired in the performance of their duties. The presumption is that official duty has been regularly performed (Section 5(m), Rule 131, Rules of Court). No evidence has been adduced to overcome this presumption save the affidavits of Nicolas and Briones, which, as afore-stated, are of doubtful probative value. Petitioner further alleges that he discovered the inclusion of painting in the specifications only when the painting of the building was almost completed, for, preoccupied with 13 other projects, he had entrusted to his assistant, Leoncio Vasquez, the reconstruction of the school building in question. On the other hand, Santiago P. Ojeda, building inspector for the project, testified that Guevara submitted to the District Engineer, as required, samples of the paints he (Guevara) purchased. Hence, Guevara knew that painting was part of the specifications. Furthermore, during the period of construction Guevara made several collections under the contract, and the vouchers he presented therefor carried "painting and varnishing" as one of the units of work rated to determine how much should be paid. Guevara’s use of the estimate of work to support the

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vouchers display his knowledge and awareness during the construction that his contract covered painting of the building. We noted that subsequent to the filing of petitioner’s claim, his assistant, Leoncio Vasquez, while visiting the office of the District Engineer, borrowed from the official custodian, Cesar Gacias, the specifications for the project in question. Alert and careful in the performance of his duty, Gacias lent Vasquez the official file copy of the specifications but only after he had checked the number of pages composing the file. After it was returned, Gacias saw that the file was short of one page, and the one missing was precisely page 6 of the specifications containing the provision for painting. Whereupon, he immediately confronted Vasquez with the discrepancy and grabbed the notebook which the latter tucked under his arm. Gacias found folded and concealed inside the notebook the missing page. Several co- employees witnessed the shameful incident. We express our condemnation of Vasquez’s behavior. Finally, petitioner Guevara, a civil engineer, has twenty years experience as public works contractor. He must have acquired first- hand knowledge of the mechanics of government contracting as well as skill in administering construction contracts. The other 13 projects he said he had justify our impression. The practice of contractors, before submitting any bid or proposal, is to verify with the office of the District Engineer the fund available for a project, approval of the plans, specifications and program of work and other relevant and necessary matters in prosecuting a government contract. From his experience and know-how We can be certain that petitioner, prior to submission of his bids, called on the District Engineer of Sorsogon to make his verification. By doing so, he would have noted the first indorsement dated August 9, 1954 approving the detailed estimate and program of work and requiring that painting be included. From that moment, he must have been aware that he would bid for a construction work that included painting. In the event that Guevara dispensed with verification, he alone should bear the consequences of his negligence. Our finding therefore is that the contract between Fernando Guevara and the Bureau of Public Works provided for the painting of the school building. As petitioner has been fully paid the contract price of P37,500.00, no additional payment is due. WHEREFORE, We hereby affirm the decision of the Auditor General, with costs against petitioner. It is so ordered. Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal and Zaldivar, JJ., concur. Endnotes:

1. See People v. Logrono, L-5714-15, Feb. 25, 1955; Libuit v. Auditor General, L-10160, June 28, 1957.

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EN BANC

[G.R. No. 147402. January 14, 2004]

ENGR. RANULFO C. FELICIANO, in his capacity as General Manager of the Leyte Metropolitan Water District (LMWD), Tacloban City, petitioner, vs. COMMISSION ON AUDIT, Chairman CELSO D. GANGAN, Commissioners RAUL C. FLORES and EMMANUEL M. DALMAN, and Regional Director of COA Region VIII, respondents. DECISION CARPIO, J.:

The Case This is a petition for certiorari[1] to annul the Commission on Audits (COA) Resolution dated 3 January 2000 and the Decision dated 30 January 2001 denying the Motion for Reconsideration. The COA denied

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petitioner Ranulfo C. Felicianos request for COA to cease all audit services, and to stop charging auditing fees, to Leyte Metropolitan Water District (LMWD). The COA also denied petitioners request for COA to refund all auditing fees previously paid by LMWD.

Antecedent Facts A Special Audit Team from COA Regional Office No. VIII audited the accounts of LMWD. Subsequently, LMWD received a letter from COA dated 19 July 1999 requesting payment of auditing fees. As General Manager of LMWD, petitioner sent a reply dated 12 October 1999 informing COAs Regional Director that the water district could not pay the auditing fees. Petitioner cited as basis for his action Sections 6 and 20 of Presidential Decree 198 (PD 198)[2], as well as Section 18 of Republic Act No. 6758 (RA 6758). The Regional Director referred petitioners reply to the COA Chairman on 18 October 1999. On 19 October 1999, petitioner wrote COA through the Regional Director asking for refund of all auditing fees LMWD previously paid to COA. On 16 March 2000, petitioner received COA Chairman Celso D. Gangans Resolution dated 3 January 2000 denying his requests. Petitioner filed a motion for reconsideration on 31 March 2000, which COA denied on 30 January 2001. On 13 March 2001, petitioner filed this instant petition. Attached to the petition were resolutions of the Visayas Association of Water Districts (VAWD) and the Philippine Association of Water Districts (PAWD) supporting the petition.

The Ruling of the Commission on Audit The COA ruled that this Court has already settled COAs audit jurisdiction over local water districts in Davao City Water District v. Civil Service Commission and Commission on Audit,[3] as follows: The above-quoted provision [referring to Section 3(b) PD 198] definitely sets to naught petitioners contention that they are private corporations. It is clear therefrom that the power to appoint the members who will comprise the members of the Board of Directors belong to the local executives of the local subdivision unit where such districts are located. In contrast, the members of the Board of Directors or the trustees of a private corporation are elected from among members or stockholders thereof. It would not be amiss at this point to emphasize that a private corporation is created for the private purpose, benefit, aim and end of its members or stockholders. Necessarily, said members or stockholders should be given a free hand to choose who will compose the governing body of their corporation. But this is not the case here and this clearly indicates that petitioners are not private corporations. The COA also denied petitioners request for COA to stop charging auditing fees as well as petitioners request for COA to refund all auditing fees already paid.

The Issues Petitioner contends that COA committed grave abuse of discretion amounting to lack or excess of jurisdiction by auditing LMWD and requiring it to pay auditing fees. Petitioner raises the following issues for resolution:

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1. Whether a Local Water District (LWD) created under PD 198, as amended, is a government-owned or controlled corporation subject to the audit jurisdiction of COA; 2. Whether Section 20 of PD 198, as amended, prohibits COAs certified public accountants from auditing local water districts; and 3. Whether Section 18 of RA 6758 prohibits the COA from charging government-owned and controlled corporations auditing fees.

The Ruling of the Court The petition lacks merit. The Constitution and existing laws[4] mandate COA to audit all government agencies, including government-owned and controlled corporations (GOCCs) with original charters. An LWD is a GOCC with an original charter. Section 2(1), Article IX-D of the Constitution provides for COAs audit jurisdiction, as follows: SECTION 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (Emphasis supplied) The COAs audit jurisdiction extends not only to government agencies or instrumentalities, but also to government-owned and controlled corporations with original charters as well as other government-owned or controlled corporations without original charters.

Whether LWDs are Private or Government-Owned and Controlled Corporations with Original Charters Petitioner seeks to revive a well-settled issue. Petitioner asks for a re-examination of a doctrine backed by a long line of cases culminating in Davao City Water District v. Civil Service Commission[5] and just recently reiterated in De Jesus v. Commission on Audit.[6] Petitioner maintains that LWDs are not government-owned and controlled corporations with original charters. Petitioner even argues that LWDs are private corporations. Petitioner asks the Court to consider certain interpretations of the applicable laws, which would give a new perspective to the issue of the true character of water districts.[7] Petitioner theorizes that what PD 198 created was the Local Waters Utilities Administration (LWUA) and not the LWDs. Petitioner claims that LWDs are created pursuant to and not created directly by PD 198. Thus, petitioner concludes that PD 198 is not an original charter that would place LWDs within the audit jurisdiction of COA as defined in Section 2(1), Article IX-D of the Constitution. Petitioner elaborates that PD

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198 does not create LWDs since it does not expressly direct the creation of such entities, but only provides for their formation on an optional or voluntary basis.[8] Petitioner adds that the operative act that creates an LWD is the approval of the Sanggunian Resolution as specified in PD 198. Petitioners contention deserves scant consideration. 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 a general law applicable to all citizens.[9] 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.[10] 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, that general law is the Corporation Code,[11] except that the Cooperative Code governs the incorporation of cooperatives.[12] 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. Obviously, LWDs are not private corporations because they are not created under the Corporation Code. LWDs are not registered with the Securities and Exchange Commission. Section 14 of the Corporation Code states that [A]ll corporations organized under this code shall file with the Securities and Exchange Commission articles of incorporation x x x. LWDs have no articles of incorporation, no incorporators and no stockholders or members. There are no stockholders or members to elect the board directors of LWDs as in the case of all corporations registered with the Securities and Exchange Commission. The local mayor or the provincial governor appoints the directors of LWDs for a fixed term of office. This Court has ruled that LWDs are not created under the Corporation Code, thus: From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the CSC are those corporations created pursuant to the Corporation Code. Significantly, petitioners are not created under the said code, but on the contrary, they were created pursuant to a special law and are governed primarily by its provision.[13] (Emphasis supplied) LWDs exist by virtue of PD 198, which constitutes their special charter. Since under the Constitution only government-owned or controlled corporations may have special charters, LWDs can validly exist only if they are government-owned or controlled. To claim that LWDs are private corporations with a special charter is to admit that their existence is constitutionally infirm. Unlike private corporations, which derive their legal existence and power from the Corporation Code, LWDs derive their legal existence and power from PD 198. Sections 6 and 25 of PD 198[14] provide: Section 6. Formation of District. This Act is the source of authorization and power to form and maintain a district. For purposes of this Act, a district shall be considered as a quasi-public corporation performing public Page 483 of 492

service and supplying public wants. As such, a district shall exercise the powers, rights and privileges given to private corporations under existing laws, in addition to the powers granted in, and subject to such restrictions imposed, under this Act. (a) The name of the local water district, which shall include the name of the city, municipality, or province, or region thereof, served by said system, followed by the words Water District. (b) A description of the boundary of the district. In the case of a city or municipality, such boundary may include all lands within the city or municipality. A district may include one or more municipalities, cities or provinces, or portions thereof. (c) A statement completely transferring any and all waterworks and/or sewerage facilities managed, operated by or under the control of such city, municipality or province to such district upon the filing of resolution forming the district. (d) A statement identifying the purpose for which the district is formed, which shall include those purposes outlined in Section 5 above. (e) The names of the initial directors of the district with the date of expiration of term of office for each. (f) A statement that the district may only be dissolved on the grounds and under the conditions set forth in Section 44 of this Title. (g) A statement acknowledging the powers, rights and obligations as set forth in Section 36 of this Title. Nothing in the resolution of formation shall state or infer that the local legislative body has the power to dissolve, alter or affect the district beyond that specifically provided for in this Act. If two or more cities, municipalities or provinces, or any combination thereof, desire to form a single district, a similar resolution shall be adopted in each city, municipality and province. xxx Sec. 25. Authorization. The district may exercise all the powers which are expressly granted by this Title or which are necessarily implied from or incidental to the powers and purposes herein stated. For the purpose of carrying out the objectives of this Act, a district is hereby granted the power of eminent domain, the exercise thereof shall, however, be subject to review by the Administration. (Emphasis supplied) Clearly, LWDs exist as corporations only by virtue of PD 198, which expressly confers on LWDs corporate powers. Section 6 of PD 198 provides that LWDs shall exercise the powers, rights and privileges given to private corporations under existing laws. Without PD 198, LWDs would have no corporate powers. Thus, PD 198 constitutes the special enabling charter of LWDs. The ineluctable conclusion is that LWDs are government-owned and controlled corporations with a special charter. The phrase government-owned and controlled corporations with original charters means GOCCs created under special laws and not under the general incorporation law. There is no difference between the term original charters and special charters. The Court clarified this in National Service Corporation v. NLRC[15] by citing the deliberations in the Constitutional Commission, as follows: THE PRESIDING OFFICER (Mr. Trenas). The session is resumed.

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Commissioner Romulo is recognized. MR. ROMULO. Mr. Presiding Officer, I am amending my original proposed amendment to now read as follows: including government-owned or controlled corporations WITH ORIGINAL CHARTERS. The purpose of this amendment is to indicate that government corporations such as the GSIS and SSS, which have original charters, fall within the ambit of the civil service. However, corporations which are subsidiaries of these chartered agencies such as the Philippine Airlines, Manila Hotel and Hyatt are excluded from the coverage of the civil service. THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say? MR. FOZ. Just one question, Mr. Presiding Officer. By the term original charters, what exactly do we mean? MR. ROMULO. We mean that they were created by law, by an act of Congress, or by special law. MR. FOZ. And not under the general corporation law. MR. ROMULO. That is correct. Mr. Presiding Officer. MR. FOZ. With that understanding and clarification, the Committee accepts the amendment. MR. NATIVIDAD. Mr. Presiding Officer, so those created by the general corporation law are out. MR. ROMULO. That is correct. (Emphasis supplied) Again, in Davao City Water District v. Civil Service Commission,[16] the Court reiterated the meaning of the phrase government-owned and controlled corporations with original charters in this wise: By government-owned or controlled corporation with original charter, We mean government owned or controlled corporation created by a special law and not under the Corporation Code of the Philippines. Thus, in the case of Lumanta v. NLRC (G.R. No. 82819, February 8, 1989, 170 SCRA 79, 82), We held: The Court, in National Service Corporation (NASECO) v. National Labor Relations Commission, G.R. No. 69870, promulgated on 29 November 1988, quoting extensively from the deliberations of the 1986 Constitutional Commission in respect of the intent and meaning of the new phrase with original charter, in effect held that government-owned and controlled corporations with original charter refer to corporations chartered by special law as distinguished from corporations organized under our general incorporation statute the Corporation Code. In NASECO, the company involved had been organized under the general incorporation statute and was a subsidiary of the National Investment Development Corporation (NIDC) which in turn was a subsidiary of the Philippine National Bank, a bank chartered by a special statute. Thus, government-owned or controlled corporations like NASECO are effectively, excluded from the scope of the Civil Service. (Emphasis supplied) Petitioners contention that the Sangguniang Bayan resolution creates the LWDs assumes that the Sangguniang Bayan has the power to create corporations. This is a patently baseless assumption. The Local Government Code[17] does not vest in the Sangguniang Bayan the power to create corporations.[18] What the Local Government Code empowers the Sangguniang Bayan to do is to provide for the establishment of a waterworks system subject to existing laws. Thus, Section 447(5)(vii) of the Local Government Code provides: SECTION 447. Powers, Duties, Functions and Compensation. (a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the Page 485 of 492

municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under Section 22 of this Code, and shall: xxx (vii) Subject to existing laws, provide for the establishment, operation, maintenance, and repair of an efficient waterworks system to supply water for the inhabitants; regulate the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protect the purity and quantity of the water supply of the municipality and, for this purpose, extend the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulate the consumption, use or wastage of water; x x x. (Emphasis supplied) The Sangguniang Bayan may establish a waterworks system only in accordance with the provisions of PD 198. The Sangguniang Bayan has no power to create a corporate entity that will operate its waterworks system. However, the Sangguniang Bayan may avail of existing enabling laws, like PD 198, to form and incorporate a water district. Besides, even assuming for the sake of argument that the Sangguniang Bayan has the power to create corporations, the LWDs would remain government-owned or controlled corporations subject to COAs audit jurisdiction. The resolution of the Sangguniang Bayan would constitute an LWDs special charter, making the LWD a government-owned and controlled corporation with an original charter. In any event, the Court has already ruled in Baguio Water District v. Trajano[19] that the Sangguniang Bayan resolution is not the special charter of LWDs, thus: While it is true that a resolution of a local sanggunian is still necessary for the final creation of a district, this Court is of the opinion that said resolution cannot be considered as its charter, the same being intended only to implement the provisions of said decree. Petitioner further contends that a law must create directly and explicitly a GOCC in order that it may have an original charter. In short, petitioner argues that one special law cannot serve as enabling law for several GOCCs but only for one GOCC. Section 16, Article XII of the Constitution mandates that Congress shall not, except by general law,[20] provide for the creation of private corporations. Thus, the Constitution prohibits one special law to create one private corporation, requiring instead a general law to create private corporations. In contrast, the same Section 16 states that Government-owned or controlled corporations may be created or established by special charters. Thus, the Constitution permits Congress to create a GOCC with a special charter. There is, however, no prohibition on Congress to create several GOCCs of the same class under one special enabling charter. The rationale behind the prohibition on private corporations having special charters does not apply to GOCCs. There is no danger of creating special privileges to certain individuals, families or groups if there is one special law creating each GOCC. Certainly, such danger will not exist whether one special law creates one GOCC, or one special enabling law creates several GOCCs. Thus, Congress may create GOCCs either by special charters specific to each GOCC, or by one special enabling charter applicable to a class of GOCCs, like PD 198 which applies only to LWDs. Petitioner also contends that LWDs are private corporations because Section 6 of PD 198[21] declares that LWDs shall be considered quasi-public in nature. Petitioners rationale is that only private corporations may be deemed quasi-public and not public corporations.Put differently, petitioner rationalizes that a public corporation cannot be deemed quasi-public because such corporation is already public. Petitioner concludes that the term quasi-public can only apply to private corporations. Petitioners argument is inconsequential.

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Petitioner forgets that the constitutional criterion on the exercise of COAs audit jurisdiction depends on the governments ownership or control of a corporation. The nature of the corporation, whether it is private, quasi-public, or public is immaterial. The Constitution vests in the COA audit jurisdiction over government-owned and controlled corporations with original charters, as well as government-owned or controlled corporations without original charters. GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters are subject to COA post-audit. GOCCs without original charters refer to corporations created under the Corporation Code but are owned or controlled by the government. The nature or purpose of the corporation is not material in determining COAs audit jurisdiction. Neither is the manner of creation of a corporation, whether under a general or special law. The determining factor of COAs audit jurisdiction is government ownership or control of the corporation. In Philippine Veterans Bank Employees Union-NUBE v. Philippine Veterans Bank,[22] the Court even ruled that the criterion of ownership and control is more important than the issue of original charter, thus: This point is important because the Constitution provides in its Article IX-B, Section 2(1) that the Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. As the Bank is not owned or controlled by the Government although it does have an original charter in the form of R.A. No. 3518,[23] it clearly does not fall under the Civil Service and should be regarded as an ordinary commercial corporation. Section 28 of the said law so provides. The consequence is that the relations of the Bank with its employees should be governed by the labor laws, under which in fact they have already been paid some of their claims. (Emphasis supplied) Certainly, the government owns and controls LWDs. The government organizes LWDs in accordance with a specific law, PD 198. There is no private party involved as co-owner in the creation of an LWD. Just prior to the creation of LWDs, the national or local government owns and controls all their assets. The government controls LWDs because under PD 198 the municipal or city mayor, or the provincial governor, appoints all the board directors of an LWD for a fixed term of six years.[24] The board directors of LWDs are not co-owners of the LWDs. LWDs have no private stockholders or members. The board directors and other personnel of LWDs are government employees subject to civil service laws[25] and anti-graft laws.[26] While Section 8 of PD 198 states that [N]o public official shall serve as director of an LWD, it only means that the appointees to the board of directors of LWDs shall come from the private sector. Once such private sector representatives assume office as directors, they become public officials governed by the civil service law and anti-graft laws. Otherwise, Section 8 of PD 198 would contravene Section 2(1), Article IX-B of the Constitution declaring that the civil service includes government-owned or controlled corporations with original charters. If LWDs are neither GOCCs with original charters nor GOCCs without original charters, then they would fall under the term agencies or instrumentalities of the government and thus still subject to COAs audit jurisdiction. However, the stark and undeniable fact is that the government owns LWDs. Section 45[27] of PD 198 recognizes government ownership of LWDs when Section 45 states that the board of directors may dissolve an LWD only on the condition that another public entity has acquired the assets of the district and has assumed all obligations and liabilities attached thereto. The implication is clear that an LWD is a public and not a private entity. Petitioner does not allege that some entity other than the government owns or controls LWDs. Instead, petitioner advances the theory that the Water Districts owner is the District itself.[28] Assuming for the sake of argument that an LWD is self-owned,[29] as petitioner describes an LWD, the government in any event controls all LWDs. First, government officials appoint all LWD directors to a fixed term of office. Second, any per diem of LWD directors in excess of P50 is subject to the approval of the Local Water Utilities Administration, and directors can receive no other compensation for their services to the LWD.[30] Third, the Page 487 of 492

Local Water Utilities Administration can require LWDs to merge or consolidate their facilities or operations.[31] This element of government control subjects LWDs to COAs audit jurisdiction. Petitioner argues that upon the enactment of PD 198, LWDs became private entities through the transfer of ownership of water facilities from local government units to their respective water districts as mandated by PD 198. Petitioner is grasping at straws. Privatization involves the transfer of government assets to a private entity. Petitioner concedes that the owner of the assets transferred under Section 6 (c) of PD 198 is no other than the LWD itself.[32] The transfer of assets mandated by PD 198 is a transfer of the water systems facilities managed, operated by or under the control of such city, municipality or province to such (water) district.[33] In short, the transfer is from one government entity to another government entity. PD 198 is bereft of any indication that the transfer is to privatize the operation and control of water systems. Finally, petitioner claims that even on the assumption that the government owns and controls LWDs, Section 20 of PD 198 prevents COA from auditing LWDs. [34] Section 20 of PD 198 provides: Sec. 20. System of Business Administration. The Board shall, as soon as practicable, prescribe and define by resolution a system of business administration and accounting for the district, which shall be patterned upon and conform to the standards established by the Administration. Auditing shall be performed by a certified public accountant not in the government service. The Administration may, however, conduct annual audits of the fiscal operations of the district to be performed by an auditor retained by the Administration. Expenses incurred in connection therewith shall be borne equally by the water district concerned and the Administration.[35] (Emphasis supplied) Petitioner argues that PD 198 expressly prohibits COA auditors, or any government auditor for that matter, from auditing LWDs. Petitioner asserts that this is the import of the second sentence of Section 20 of PD 198 when it states that [A]uditing shall be performed by a certified public accountant not in the government service.[36] PD 198 cannot prevail over the Constitution. No amount of clever legislation can exclude GOCCs like LWDs from COAs audit jurisdiction. Section 3, Article IX-C of the Constitution outlaws any scheme or devise to escape COAs audit jurisdiction, thus: Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. (Emphasis supplied) The framers of the Constitution added Section 3, Article IX-D of the Constitution precisely to annul provisions of Presidential Decrees, like that of Section 20 of PD 198, that exempt GOCCs from COA audit. The following exchange in the deliberations of the Constitutional Commission elucidates this intent of the framers: MR. OPLE: I propose to add a new section on line 9, page 2 of the amended committee report which reads: NO LAW SHALL BE PASSED EXEMPTING ANY ENTITY OF THE GOVERNMENT OR ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY INVESTMENTS OF PUBLIC FUNDS, FROM THE JURISDICTION OF THE COMMISSION ON AUDIT. May I explain my reasons on record. We know that a number of entities of the government took advantage of the absence of a legislature in the past to obtain presidential decrees exempting themselves from the jurisdiction of the Commission on Audit, one notable example of which is the Philippine National Oil Company which is really an empty shell. It is a holding corporation by itself, and strictly on its own account. Its funds were not very impressive in quantity but underneath that shell there were billions of pesos in a multiplicity of companies. The PNOC the empty shell under a presidential decree

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was covered by the jurisdiction of the Commission on Audit, but the billions of pesos invested in different corporations underneath it were exempted from the coverage of the Commission on Audit. Another example is the United Coconut Planters Bank. The Commission on Audit has determined that the coconut levy is a form of taxation; and that, therefore, these funds attributed to the shares of 1,400,000 coconut farmers are, in effect, public funds. And that was, I think, the basis of the PCGG in undertaking that last major sequestration of up to 94 percent of all the shares in the United Coconut Planters Bank. The charter of the UCPB, through a presidential decree, exempted it from the jurisdiction of the Commission on Audit, it being a private organization. So these are the fetuses of future abuse that we are slaying right here with this additional section. May I repeat the amendment, Madam President: NO LAW SHALL BE PASSED EXEMPTING ANY ENTITY OF THE GOVERNMENT OR ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY INVESTMENTS OF PUBLIC FUNDS, FROM THE JURISDICTION OF THE COMMISSION ON AUDIT. THE PRESIDENT: May we know the position of the Committee on the proposed amendment of Commissioner Ople? MR. JAMIR: If the honorable Commissioner will change the number of the section to 4, we will accept the amendment. MR. OPLE: Gladly, Madam President. Thank you. MR. DE CASTRO: Madam President, point of inquiry on the new amendment. THE PRESIDENT: Commissioner de Castro is recognized. MR. DE CASTRO: Thank you. May I just ask a few questions of Commissioner Ople. Is that not included in Section 2 (1) where it states: (c) government-owned or controlled corporations and their subsidiaries? So that if these government-owned and controlled corporations and their subsidiaries are subjected to the audit of the COA, any law exempting certain government corporations or subsidiaries will be already unconstitutional. So I believe, Madam President, that the proposed amendment is unnecessary. MR. MONSOD: Madam President, since this has been accepted, we would like to reply to the point raised by Commissioner de Castro. THE PRESIDENT: Commissioner Monsod will please proceed. MR. MONSOD: I think the Commissioner is trying to avoid the situation that happened in the past, because the same provision was in the 1973 Constitution and yet somehow a law or a decree was passed where certain institutions were exempted from audit. We are just reaffirming, emphasizing, the role of the Commission on Audit so that this problem will never arise in the future.[37] There is an irreconcilable conflict between the second sentence of Section 20 of PD 198 prohibiting COA auditors from auditing LWDs and Sections 2(1) and 3, Article IX-D of the Constitution vesting in COA the power to audit all GOCCs. We rule that the second sentence of Section 20 of PD 198 is unconstitutional since it violates Sections 2(1) and 3, Article IX-D of the Constitution.

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On the Legality of COAs Practice of Charging Auditing Fees Petitioner claims that the auditing fees COA charges LWDs for audit services violate the prohibition in Section 18 of RA 6758,[38] which states: Sec. 18. Additional Compensation of Commission on Audit Personnel and of other Agencies. In order to preserve the independence and integrity of the Commission on Audit (COA), its officials and employees are prohibited from receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local government unit, government-owned or controlled corporations, and government financial institutions, except those compensation paid directly by COA out of its appropriations and contributions. Government entities, including government-owned or controlled corporations including financial institutions and local government units are hereby prohibited from assessing or billing other government entities, including governmentowned or controlled corporations including financial institutions or local government units for services rendered by its officials and employees as part of their regular functions for purposes of paying additional compensation to said officials and employees. (Emphasis supplied) Claiming that Section 18 is absolute and leaves no doubt,[39] petitioner asks COA to discontinue its practice of charging auditing fees to LWDs since such practice allegedly violates the law. Petitioners claim has no basis. Section 18 of RA 6758 prohibits COA personnel from receiving any kind of compensation from any government entity except compensation paid directly by COA out of its appropriations and contributions. Thus, RA 6758 itself recognizes an exception to the statutory ban on COA personnel receiving compensation from GOCCs. In Tejada v. Domingo,[40] the Court declared: There can be no question that Section 18 of Republic Act No. 6758 is designed to strengthen further the policy x x x to preserve the independence and integrity of the COA, by explicitly PROHIBITING: (1) COA officials and employees from receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local government unit, GOCCs and government financial institutions, except such compensation paid directly by the COA out of its appropriations and contributions, and (2) government entities, including GOCCs, government financial institutions and local government units from assessing or billing other government entities, GOCCs, government financial institutions or local government units for services rendered by the latters officials and employees as part of their regular functions for purposes of paying additional compensation to said officials and employees. xxx The first aspect of the strategy is directed to the COA itself, while the second aspect is addressed directly against the GOCCs and government financial institutions. Under the first, COA personnel assigned to auditing units of GOCCs or government financial institutions can receive only such salaries, allowances or fringe benefits paid directly by the COA out of its appropriations and contributions. The contributions referred to are the cost of audit services earlier mentioned which cannot include the extra emoluments or benefits now claimed by petitioners. The COA is further barred from assessing or billing GOCCs and government financial institutions for services rendered by its personnel as part of their regular audit functions for purposes of paying additional compensation to such personnel. x x x. (Emphasis supplied) In Tejada, the Court explained the meaning of the word contributions in Section 18 of RA 6758, which allows COA to charge GOCCs the cost of its audit services:

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x x x the contributions from the GOCCs are limited to the cost of audit services which are based on the actual cost of the audit function in the corporation concerned plus a reasonable rate to cover overhead expenses. The actual audit cost shall include personnel services, maintenance and other operating expenses, depreciation on capital and equipment and out-of-pocket expenses. In respect to the allowances and fringe benefits granted by the GOCCs to the COA personnel assigned to the formers auditing units, the same shall be directly defrayed by COA from its own appropriations x x x. [41] COA may charge GOCCs actual audit cost but GOCCs must pay the same directly to COA and not to COA auditors. Petitioner has not alleged that COA charges LWDs auditing fees in excess of COAs actual audit cost. Neither has petitioner alleged that the auditing fees are paid by LWDs directly to individual COA auditors. Thus, petitioners contention must fail. WHEREFORE, the Resolution of the Commission on Audit dated 3 January 2000 and the Decision dated 30 January 2001 denying petitioners Motion for Reconsideration are AFFIRMED. The second sentence of Section 20 of Presidential Decree No. 198 is declared VOID for being inconsistent with Sections 2 (1) and 3, Article IX-D of the Constitution. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, and Tinga, JJ., concur.

[1]

Under Rule 64 of the 1997 Revised Rules of Court.

[2]

As amended by Presidential Decrees Nos. 768 and 1479.

[3]

G.R. No. 95237-38, 13 September 1991, 201 SCRA 593.

[4]

Section 26, Government Auditing Code of the Philippines.

[5]

Supra note 3.

[6]

G.R. No. 149154, 10 June 2003.

[7]

Rollo, p. 7.

[8]

Ibid., p. 29.

[9]

See National Development Company v. December 1990, 192 SCRA 257.

Philippine

Veterans

Bank,

G.R.

Nos.

84132-33,

10

[10]

BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 1181 (2003).

[11]

Batas Pambansa Blg. 68.

[12]

Republic Act. No. 6938. See also Republic Act No. 6939 or the Cooperative Development Authority Law.

[13]

Supra note 3.

[14]

As amended by PD 1479.

[15]

G.R. No. L-69870, 29 November 1988, 168 SCRA 122.

[16]

Supra note 3.

[17]

Republic Act No. 7160.

Page 491 of 492

[18]

See Section 447 of the Local Government Code on the powers of the Sangguniang Bayan.

[19]

212 Phil. 674 (1984).

[20]

Emphasis supplied.

[21]

As amended by PD 1479.

[22]

G.R. No. 67125, 24 August 1990, 189 SCRA 14.

[23]

Under Section 3 of Republic Act No. 7169 which took effect on 2 January 1992, the operations and changes in the capital structure of the Veterans Bank, as well as other amendments to its articles of incorporation and by-laws as prescribed under Republic Act No. 3518, shall be in accordance with the Corporation Code, the General Banking Act, and other related laws.

[24]

Section 3 (b) of PD 198 provides:

(b) Appointing Authority. The person empowered to appoint the members of the Board of Directors of a local water district depending upon the geographic coverage and population make-up of the particular district. In the event that more than seventy-five percent of the total active water service connections of local water districts are within the boundary of any city or municipality, the appointing authority shall be the mayor of the city or municipality, as the case may be; otherwise, the appointing authority shall be the governor of the province within which the district is located: Provided, That if the existing waterworks system in the city or municipality established as a water district under this Decree is operated and managed by the province, initial appointment shall be extended by the governor of the province. Subsequent appointments shall be as specified as herein. If portions of more than one province are included within the boundary of the district, and the appointing authority is to be the governor, then the power to appoint shall rotate between the governors involved with the initial appointments made by the governor in whose province the greatest number of service connections exists. [25]

Baguio Water District v. Trajano, supra note 20; Davao City Water District v. Civil Service Commission, supra note 3.

[26]

Morales v. People, G.R. No. 144047, 26 July 2002, 385 SCRA 259.

[27]

As amended by PD 768.

[28]

Rollo, p. 16.

[29]

Ibid.

[30]

Section 13, PD 198.

[31]

Section 43, PD 198.

[32]

Rollo, p. 644.

[33]

Section 6(c) of PD 198, as amended by PD 768.

[34]

Supra note 2.

[35]

Section 20 of PD 198, as amended by PD 768.

[36]

Rollo, p. 9.

[37]

Record of the Constitutional Commission, Vol. I, pp. 606-607.

[38]

Compensation and Position Classification Act of 1989.

Page 492 of 492

[39]

Rollo, p. 11.

[40]

G.R. No. 91860, 13 January 1992, 205 SCRA 138.

[41]

Ibid.

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